Exhibit 1.1
Execution Copy
$380,000,000
TECO ENERGY, INC.
10.50% NOTES DUE 2007
PURCHASE AGREEMENT
November 15, 2002
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
1. Introductory. TECO Energy, Inc., a Florida corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to Credit Suisse First Boston Corporation (the "Purchaser") U.S. $380,000,000
principal amount of its 10.50% Notes due 2007 (the "Offered Securities"), to 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 ("Trustee"), as
heretofore amended and as amended and supplemented by the eighth supplemental
indenture dated as of November __, 2002 (the Base Indenture, as so amended and
supplemented, being referred to herein as the "Indenture"), on a private
placement basis pursuant to an exemption under Section 4(2) of the Securities
Act of 1933, as amended (the "Securities Act").
The holders of the Offered Securities will be entitled to the benefits of
a Registration Rights Agreement of even date herewith between the Company and
the Purchaser (the "Registration Rights Agreement"), pursuant to which the
Company agrees to file a registration statement with the Securities and Exchange
Commission (the "Commission") registering the issuance of notes identical in all
material respects to the Offered Securities except for the absence of transfer
restrictions in exchange for the Offered Securities or the resale of the Offered
Securities under the Securities Act.
The Company hereby agrees with the Purchaser as follows:
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the Purchaser that:
(a) A preliminary offering circular dated November 5, 2002 and the
supplement thereto dated as of the date hereof (collectively, the
"Preliminary Offering Circular"), and an offering circular dated as of the
date hereof relating to the Offered Securities have been prepared by the
Company. Such offering circular dated as of the date hereof, as
supplemented as of the date of this Agreement and including all material
incorporated by reference therein, together with any other document
approved in writing by the Company for use in connection with the
contemplated resale of the Offered Securities, are hereinafter
collectively referred to as the "Offering Document". Any reference herein
to the terms "amend," "amendment" or "supplement" with respect to the
Offering Document shall be deemed to refer to and include the filing after
the date of this Agreement or the issue date of the Offering Document
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), of any document that is deemed to be incorporated by reference in
the Offering Document. On its issue date, the Preliminary Offering
Circular did not, and on the date of this Agreement, the Offering Document
does not, include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
The preceding sentence does not apply to statements in or omissions from
the Preliminary Offering Circular or the Offering Document based upon
written information furnished to the Company by the Purchaser specifically
for use therein, it being understood and agreed that the only such
information is that described as such in Section 7(b). Except as disclosed
in the Offering Document, on the date of this Agreement, the Company's
Annual Report on Form 10-K most recently filed with the Commission as
supplemented by all subsequent reports (collectively, the "Exchange Act
Reports") which have been filed by the Company with the Commission, does
not 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. Such
documents, when they were filed with the Commission (or if amended or
superseded by a filing prior to the date hereof, then on the date of such
filing), conformed in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder.
(b) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Florida, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Offering Document; and the
Company is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification,
except where the failure to so qualify would not have a material adverse
effect on the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a whole
(a "Material Adverse Effect").
(c) Each "significant subsidiary" (as such term is defined in Rule
1-02 of Regulation S-X) of the Company (each, a "Significant Subsidiary")
(each Significant Subsidiary is listed on Schedule A hereto) has been duly
incorporated and is an existing corporation in good standing under the
laws of the jurisdiction of its incorporation, with
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power and authority (corporate and other) to own its properties and
conduct its business as described in the Offering Document; each other
subsidiary of the Company has been duly incorporated or formed, as the
case may be, and is an existing corporation or other entity, as the case
may be, in good standing under the laws of the jurisdiction of its
organization, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Offering Document,
except where the failure of the foregoing to be correct would not have a
Material Adverse Effect; and each subsidiary of the Company is duly
qualified to do business as a foreign corporation or other entity in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification,
except where the failure to so qualify would not have a Material Adverse
Effect; all of the issued and outstanding capital stock or other equity
interests of each subsidiary of the Company has been duly authorized and
validly issued and is fully paid and nonassessable; and the capital stock
or other equity interests of each subsidiary owned by the Company,
directly or through subsidiaries, is owned free from liens, encumbrances
and defects, except for such liens, encumbrances and defects as would not
have a Material Adverse Effect.
(d) The Indenture has been duly authorized by the Company; the
Offered Securities have been duly authorized by the Company; and the
Offered Securities, when validly authenticated, delivered and paid for
pursuant to this Agreement on the Closing Date (as defined below), and the
Indenture, when validly executed and delivered by the Trustee, will each
have been duly executed, issued and delivered by the Company, will conform
to the description thereof contained in the Offering Document, and will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms, subject to
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and general equity principles (whether considered in a
proceeding in equity or at law); and the Offered Securities are entitled
to the benefits of the Indenture.
(e) No consent, approval, authorization, or order of, or filing,
registration or qualification with, any governmental agency or body or any
court (including without limitation the Florida Public Service Commission)
is required for the performance by the Company of its obligations
hereunder or under the Registration Rights Agreement or in connection with
the consummation of the transactions contemplated by this Agreement
(including without limitation in connection with the issuance and sale of
the Offered Securities by the Company) or the Registration Rights
Agreement, except for the order of the Commission declaring the Exchange
Offer Registration Statement or the Shelf Registration Statement (each as
defined in the Registration Rights Agreement) effective and except such as
may be required under state securities laws and assuming the accuracy of
the Purchaser's representations set forth in Section 4 of this Agreement,
and the due performance by the Purchaser of its agreements as set forth in
that Section, including the resale of the Offered Securities in conformity
with such representations and agreements.
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(f) The execution, delivery and performance of the Indenture, this
Agreement and the Registration Rights Agreement and the issuance and sale
of the Offered Securities and compliance by the Company with the terms and
provisions of the Indenture, this Agreement, the Registration Rights
Agreement and the Offered Securities will not result in a breach or
violation by the Company of any of the terms and provisions of, or
constitute a default by the Company under, (A) any statute, rule,
regulation or order of any governmental agency or body or any court having
jurisdiction over the Company or any of its property or any Significant
Subsidiary or any of their respective properties, (B) any agreement or
instrument to which the Company or any Significant Subsidiary is a party
or by which the Company or any Significant Subsidiary is bound or to which
any of the properties of the Company or any Significant Subsidiary is
subject, except for breaches, violations or defaults that would not result
in a Material Adverse Effect, or (C) the charter or by-laws of the Company
or any Significant Subsidiary; and the Company has full power and
authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement.
(g) Each of this Agreement and the Registration Rights Agreement has
been duly authorized, executed and delivered by the Company; and the
Registration Rights Agreement constitutes a valid and binding obligation
of the Company, enforceable against the Company in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and general equity principles
(whether considered in a proceeding in equity or at law).
(h) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or involving the Company or
any of its property, any of its subsidiaries or any of their respective
properties that could reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its obligations
under the Indenture, this Agreement or the Registration Rights Agreement,
or which are otherwise material in the context of the sale of the Offered
Securities; and to the Company's knowledge, no such actions, suits or
proceedings are threatened or contemplated.
(i) The financial statements of the Company, together with the
related notes to such financial statements, included or incorporated by
reference in the Offering Document present fairly the financial position
of the Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and
except as otherwise disclosed in the Offering Document, such financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent basis
(except as stated therein); and any schedules included or incorporated by
reference in the Offering Document present fairly the information required
to be stated therein. PricewaterhouseCoopers LLP, who have certified
certain of such financial statements of the Company, are independent
public accountants with respect to the Company and its subsidiaries as
required by the Exchange Act and the rules and regulations thereunder.
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(j) Except as disclosed in the Offering Document, since the date of
the latest audited financial statements included or incorporated by
reference in the Offering Document there has been no material adverse
change in the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a
whole.
(k) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the Offering Document, will not be an "investment company"
as defined in the Investment Company Act of 1940, as amended.
(l) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Offered Securities are listed
on any national securities exchange registered under Section 6 of the
Exchange Act or quoted in a U.S. automated inter-dealer quotation system.
(m) The Company has filed an appropriate exemption statement
pursuant to the provisions of the Public Utility Holding Company Act of
1935, as amended (the "Public Utility Holding Company Act") and is exempt
from all provisions of the Public Utility Holding Company 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 Offered Securities.
(n) The offer and sale of the Offered Securities by the Company to
the Purchaser in the manner contemplated by this Agreement will be exempt
from the registration requirements of the Securities Act by reason of
Section 4(2) thereof, and the offer and sale of the Offered Securities in
the manner contemplated by Section 4 of this Agreement will be exempt from
the registration requirements of the Securities Act by reason of Rule 144A
thereunder and Regulation S thereunder; and it is not necessary to qualify
an indenture in respect of the Offered Securities under the Trust
Indenture Act, in each case assuming the accuracy of the Purchaser's
representations set forth in Section 4 of this Agreement and the due
performance by the Purchaser of its agreements as set forth in that
Section, including the resale of the Offered Securities in conformity with
such representations and agreements.
(o) The Company is subject to Section 13 or 15(d) of the Exchange
Act.
(p) Any certificate signed by any officer of the Company or any of
its subsidiaries delivered to the Purchaser or to counsel for the
Purchaser shall be deemed a representation and warranty by the Company to
the Purchaser as to matters covered thereby.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, and subject to the
terms and conditions herein set
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forth, the Company agrees to sell to the Purchaser, and the Purchaser agrees to
purchase from the Company, all of the Offered Securities at a purchase price of:
(i) 92.034% of the principal amount thereof, of which (a) $234,125,350 (the
"DOLLAR PRICE") shall be retained by the Purchaser in connection with the
purchase of the Outstanding Notes (as defined below) pursuant to the Note
Purchase Agreement between the Purchaser and Citibank, N.A., dated September 26,
2002, and (b) the accrued interest on the Dollar Price shall be retained by the
Purchaser, calculated at the Purchaser's cost of funds, from October 1, 2002 to
the Closing Date (as defined below), and (ii) the delivery by the Purchaser to
the Company of $200,000,000 aggregate principal amount of the 7% Remarketable or
Redeemable Notes due October 1, 2015 (having a reset coupon rate of 12.51% as of
October 1, 2002) issued by the Company on September 20, 2000 (the "OUTSTANDING
NOTES").
The Company will deliver against payment of the purchase price (including
that portion of the purchase price consisting of delivery by the Purchaser to
the Company of the Outstanding Notes) the Offered Securities in the form of one
or more permanent global securities in definitive form (the "Global Securities")
deposited with the Trustee as custodian for The Depository Trust Company
("DTC"), registered in the name of Cede & Co., as nominee for DTC, and bearing
the legend regarding restrictions on transfer set forth under "Transfer
Restrictions" in the Offering Document and to be credited to the Purchaser's
account. Interests in any permanent global securities will be held only in
book-entry form through DTC, except in the limited circumstances described in
the Offering Document. Payment for the Offered Securities shall be made by
delivery by the Purchaser to the Company, or its order, of the Outstanding
Notes, free of payment, and with respect to the cash portion of the purchase
price, by the Purchaser in Federal (same day) funds by wire transfer to an
account at a bank designated by the Company and open for the receipt of funds
(and verification of the receipt of funds), at 9:00 A.M. (New York time), on
November 20, 2002, or at such other time not later than seven full business days
thereafter as the Purchaser and the Company determine, such time being herein
referred to as the "Closing Date," against delivery to the Trustee as custodian
for DTC of the Global Securities representing all of the Offered Securities. The
Global Securities will be made available for checking at the office of DTC or
its designated custodian (the "Designated Office") at least one business day
prior to the Closing Date.
The documents to be delivered on the Closing Date by or on behalf of the
parties hereto pursuant to Section 6, including the cross-receipt for the
Offered Securities and any additional documents requested by the Purchaser
pursuant to Section 6, will be delivered at the offices of Xxxxxx & Dodge LLP,
000 Xxxxxxxxxx Xxxxxx, Xxxxxx, XX 00000, and the Offered Securities will be
delivered at the Designated Office, all at 9:00 A.M. on the Closing Date.
4. Representations by Purchaser; Resale by Purchaser.
(a) The Purchaser represents and warrants to the Company that it is
an "accredited investor" within the meaning of Regulation D under the
Securities Act.
(b) The Purchaser acknowledges that the Offered Securities have not
been registered under the Securities Act and may not be offered or sold
within the United States or to, or for the account or benefit of, U.S.
persons except in accordance with
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Regulation S or pursuant to an exemption from the registration
requirements of the Securities Act. The Purchaser represents and agrees
that it has offered and sold the Offered Securities, and will offer and
sell the Offered Securities, only in accordance with Rule 903 or Rule 144A
under the Securities Act ("Rule 144A"). Accordingly, neither the Purchaser
nor its affiliates, nor any persons acting on its or their behalf, have
engaged or will engage in any directed selling efforts with respect to the
Offered Securities, and the Purchaser, its affiliates and all persons
acting on its or their behalf have complied and will comply with the
offering restrictions requirement of Regulation S and Rule 144A.
(c) The Purchaser agrees that it and each of its affiliates will not
offer or sell the Offered Securities in the United States by means of any
form of general solicitation or general advertising within the meaning of
Rule 502(c) under the Securities Act, including, but not limited to (i)
any advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or
radio, or (ii) any seminar or meeting whose attendees have been invited by
any general solicitation or general advertising. The Purchaser agrees,
with respect to resales made in reliance on Rule 144A of any of the
Offered Securities, to deliver either with the confirmation of such resale
or otherwise prior to settlement of such resale a notice to the effect
that the resale of such Offered Securities has been made in reliance upon
the exemption from the registration requirements of the Securities Act
provided by Rule 144A.
5. Certain Agreements of the Company. The Company agrees with the
Purchaser that:
(a) The Company will advise the Purchaser promptly in writing of any
proposal to amend or supplement the Offering Document and will not effect
any such amendment or supplementation to which the Purchaser has
reasonably objected in writing; provided, however, that the foregoing
shall not apply to any of the Company's periodic filings with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act if filed after the completion of the resale of the Offered Securities.
If, at any time prior to the completion of the resale of the Offered
Securities by the Purchaser any event occurs as a result of which the
Offering Document 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 under
which they were made, not misleading, the Company promptly will notify the
Purchaser of such event and will promptly prepare, at its own expense, an
amendment or supplement which will correct such statement or omission.
Neither the Purchaser's consent to, nor the Purchaser's delivery to
offerees or investors of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6
hereof.
(b) The Company will furnish to the Purchaser copies of the Offering
Document and all amendments and supplements to such documents, in each
case as soon as available and in such quantities as the Purchaser
reasonably requests, and the Company will furnish to the Purchaser on the
date hereof three copies of the Offering Document signed by a duly
authorized officer of the Company. At any time when the Company is
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not subject to Section 13 or 15(d) of the Exchange Act, the Company will
promptly furnish or cause to be furnished to the Purchaser and, upon
request of holders and prospective purchasers of the Offered Securities,
to such holders and purchasers, copies of the information required to be
delivered to holders and prospective purchasers of the Offered Securities
pursuant to Rule 144A(d)(4) under the Securities Act (or any successor
provision thereto) in order to permit compliance with Rule 144A in
connection with resales by such holders of the Offered Securities. The
Company will pay the expenses of printing and distributing to the
Purchaser all such documents.
(c) The Company will use its best efforts, in cooperation with the
Purchaser, to qualify the Offered Securities for sale and to determine
their eligibility for investment under the laws of such jurisdictions as
the Purchaser designates and will continue such qualifications in effect
so long as required for the resale of the Offered Securities by the
Purchaser; provided, that the Company will not be required to qualify as a
foreign corporation or to file a general consent to service of process in
any such jurisdiction or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject.
(d) During the period of five years after the date of this
Agreement, the Company will furnish to the Purchaser as soon as
practicable after the end of each fiscal year, a copy of its annual report
to stockholders for such year; and the Company will furnish to the
Purchaser (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under
the Exchange Act or mailed to stockholders, provided that, any such report
or proxy statement shall be deemed to be furnished when posted
electronically on a website designated by the Company to which the
Purchaser has access, and (ii) from time to time, such other information
concerning the Company as the Purchaser may reasonably request, subject to
appropriate confidentiality undertakings reasonably satisfactory to the
Company and the right of the Company to withhold information if required
by applicable law.
(e) During the period of two years after the Closing Date, the
Company will, upon request, furnish to the Purchaser and any holder of
Offered Securities a copy of the restrictions on transfer applicable to
the Offered Securities.
(f) During the period of two years after the Closing Date, the
Company will not, and will not permit any of its affiliates (as defined in
Rule 144 under the Securities Act) to, resell any of the Offered
Securities that have been reacquired by any of them.
(g) During the period of two years after the Closing Date, the
Company will not be or become, an open-end investment company, unit
investment trust or face-amount certificate company that is or is required
to be registered under Section 8 of the Investment Company Act.
(h) The Company will pay all expenses incidental to the performance
of its obligations under this Agreement, the Indenture and the
Registration Rights Agreement,
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including (i) the fees and expenses of the Trustee and its professional
advisers; (ii) all expenses in connection with the execution, issue,
authentication, packaging and initial delivery of the Offered Securities,
and, as applicable, the Exchange Securities (as defined in the
Registration Rights Agreement), the preparation and printing of this
Agreement, the Registration Rights Agreement, the Offered Securities, the
Indenture, the Preliminary Offering Circular, the Offering Document and
any amendments and supplements thereto, and any other document relating to
the issuance, offer, sale and delivery of the Offered Securities and, as
applicable, the Exchange Securities (other than, in each case, the
professional fees and expenses of counsel to the Purchaser except as
provided below); (iii) any filing fees or other expenses (including fees
and disbursements of counsel to the Purchaser, which fees and
disbursements shall not exceed $5,000) incurred in connection with
qualification of the Offered Securities for sale and determination of
their eligibility for investment under the laws of such jurisdictions as
the Purchaser designates and the printing of memoranda relating thereto;
(iv) any fees charged by investment rating agencies for the rating of the
Offered Securities, (v) any expenses incurred in distributing the
Preliminary Offering Circular and the Offering Document (including any
amendments and supplements thereto) to the Purchaser, (vi) any travel
expenses of the Purchaser and the Company's officers and employees, and
any other expenses of the Purchaser and the Company in connection with
attending or hosting meetings with prospective purchasers of Offered
Securities, including without limitation, any expenses relating to the
chartering of private aircraft, and (vii) the professional fees and
expenses of counsel to the Purchaser in connection with the consummation
of the transactions contemplated in the Exchange Agreement dated as of
September 26, 2002 between the Company and the Credit Suisse First Boston
Corporation, in an amount not to exceed $65,000.
(i) In connection with the offering, until the Purchaser shall have
notified the Company of the completion of the resale of the Offered
Securities, neither the Company nor any of its affiliates has or will,
either alone or with one or more other persons, bid for or purchase for
any account in which it or any of its affiliates has a beneficial interest
any Offered Securities or attempt to induce any person to purchase any
Offered Securities; and neither it nor any of its affiliates will make
bids or purchases for the purpose of creating actual, or apparent, active
trading in, or of raising the price of, the Offered Securities.
(j) The Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Commission
a registration statement under the Securities Act relating to debt
securities issued or guaranteed by the Company and having a maturity of
more than one year from the date of issue or publicly disclose the
intention to make any such offer, sale, pledge, contract or disposition or
filing, without the prior written consent of the Purchaser for a period
beginning on the date of this Agreement and ending on the Closing Date.
The Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any securities under circumstances
where such offer, sale, pledge, contract or disposition would cause the
exemption afforded by Section 4(2) of the Securities Act or the safe
harbor of Regulation S thereunder to cease to be applicable to the offer
and sale of the Offered Securities.
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6. Conditions of the Obligation of the Purchaser. The obligation of the
Purchaser to purchase and pay for the Offered Securities on the Closing Date
will be subject to the accuracy of the representations and warranties on the
part of the Company herein, to the accuracy of the statements of Company
officers made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) On or prior to the date hereof, the Purchaser shall have
received a letter, dated the date of this Agreement, of
PricewaterhouseCoopers LLP confirming that they are independent public
accountants with respect to the Company and its subsidiaries within the
meaning of the Securities Act and the applicable published rules and
regulations thereunder (the "Rules and Regulations") and to the effect
that:
(i) in their opinion the financial statements and schedules
and any summary of earnings examined by them and included or
incorporated by reference in the Offering Document comply as to form
in all material respects with the applicable accounting requirements
of the Securities Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on the unaudited
financial statements included or incorporated by reference in the
Offering Document;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of the Company who
have responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused
them to believe that:
(A) the unaudited financial statements and any summary of
earnings included or incorporated by reference in the Offering
Document do not comply as to form in all material respects with
the applicable accounting requirements of the Securities Act and
the related published Rules and Regulations or any material
modifications should be made to such unaudited financial
statements and summary of earnings for them to be in conformity
with generally accepted accounting principles;
(B) if any unaudited "capsule" information is contained in the
Offering Document, such information does not agree with the
amounts set forth in the unaudited consolidated financial
statements for those same periods or were not determined on a
basis substantially consistent with that of the corresponding
amounts in the audited consolidated financial statements;
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(C) at the date of the latest available balance sheet read by
such accountants, or at a subsequent specified date not more than
three business days prior to the date of this Agreement, there
was any change in the capital stock or any increase in short-term
indebtedness or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any increase in
consolidated net current liabilities or any decrease in
consolidated net current assets or net assets or stockholders'
equity, as compared with amounts shown on the latest balance
sheet included or incorporated by reference in the Offering
Document; or
(D) for the period from the closing date of the latest income
statement included or incorporated by reference in the Offering
Document to the closing date of the latest available income
statement read by such accountants there were any decreases, as
compared with the corresponding period of the previous year, in
consolidated net sales, net operating income, in the total or per
share amounts of consolidated income before extraordinary items,
net income or in the ratio of earnings to fixed charges;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Offering Document
discloses have occurred or may occur or which are described in such
letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained or incorporated by reference in the Offering
Document (in each case to the extent that such dollar amounts,
percentages and other financial information are derived from the
general accounting records of the Company and its subsidiaries
subject to the internal controls of the Company's accounting system
or are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a reading of
such general accounting records and other procedures specified in
such letter and have found such dollar amounts, percentages and
other financial information to be in agreement with such results,
except as otherwise specified in such letter.
(b) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole which, in the judgment of the Purchaser, is
material and adverse and makes it impractical or inadvisable to proceed
with completion of the offering or the sale of and payment for the Offered
Securities; (ii) any downgrading in the rating of any debt securities of
the Company, including the Offered Securities, by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Securities Act), or any public announcement that any
such organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible
11
upgrading, and no implication of a possible downgrading, of such rating);
(iii) any material suspension or material limitation of trading in
securities generally on the New York Stock Exchange or any setting of
minimum prices for trading on such exchange, or any suspension of trading
of any securities of the Company on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by U.S.
federal or New York authorities or a material disruption in commercial
banking or securities settlement or clearance services in the United
States, (v) any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the
judgment of the Purchaser, the effect of any event or change referred to
in this clause (v) is so adverse and material as to make it impractical or
inadvisable to proceed with the completion of the offering or the sale of
and payment for the Offered Securities, or (vi) any change in U.S. or
international financial, political or economic conditions if, in the
judgment of the Purchaser, the effect of any event or change referred to
in this clause (vi) is so adverse and material as to make it impractical
or inadvisable to proceed with completion of the offering or the sale of
and payment for the Offered Securities.
(c) The Purchaser shall have received an opinion, dated the Closing
Date, of Xxxxxx & Dodge LLP, counsel for the Company, reasonably
satisfactory in form and substance to the Purchaser and solely to the
effect that:
(i) The Company has been duly incorporated and is a validly
existing corporation in good standing under the laws of the State of
Florida, with corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Offering Document, and to enter into and perform its obligations
under each of this Agreement, the Registration Rights Agreement and
the Indenture;
(ii) Each of the Offered Securities and the Indenture has been
duly authorized, executed and delivered by the Company; the Offered
Securities, when validly authenticated and delivered by the Trustee,
will be validly issued and conform as to legal matters to the
description thereof contained in the Offering Document; the Offered
Securities and the Indenture, when validly authenticated, executed
and delivered by the Trustee, will constitute valid and binding
obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject to bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally and general equitable principles; and the Offered
Securities are entitled to the benefits of the Indenture;
(iii) No filing, registration or qualification with, or
authorization, approval, consent, license, order or decree of, any
court or governmental agency or body is necessary or required in
connection with the due authorization, execution and delivery of
this Agreement, the Registration Rights Agreement or the Indenture
or for the offering, issuance, sale or delivery of the Offered
12
Securities or the Exchange Securities by the Company or the Offered
Securities by the Holders, except for the order of the Commission
declaring the Exchange Offer Registration Statement or the Shelf
Registration Statement effective, and except such as may be required
under state securities laws as to which such counsel need express no
opinion, and assuming the accuracy of the Purchaser's
representations set forth in Section 4 of this Agreement, and the
due performance by the Purchaser of its agreements as set forth in
that Section, including the resale of the Offered Securities in
conformity with such representations and agreements;
(iv) The execution, delivery and performance by the Company of
this Agreement, the Registration Rights Agreement, the Offered
Securities and the Indenture and the consummation of the
transactions contemplated by this Agreement (including the issuance
and sale of the Offered Securities and the use of the proceeds from
the sale of the Offered Securities as described in the Offering
Document under the caption "Use of Proceeds") and the Registration
Rights Agreement, do not and will not, whether with or without the
giving of notice or lapse of time or both, (i) violate, constitute a
breach of, or default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of
the Company pursuant to any agreement or instrument that is listed
as an exhibit to the Company's Form 10-K for the year ended December
31, 2001 or any of the Company's Forms 10-Q or 8-K filed thereafter
but on or prior to the date of such opinion, or (ii) violate (x) the
charter or by-laws of the Company, (y) any applicable statute or
rule or regulation, or (z) any judgment, order, writ or decree known
to such counsel of any government, government instrumentality or
court;
(v) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of
the proceeds thereof as described in the Offering Document, will not
be an "investment company" as defined in the Investment Company Act
of 1940;
(vi) The statements in the Offering Document under the caption
"Description of Notes," insofar as such statements purport to
constitute a summary of the terms of the Offered Securities,
constitute an accurate summary thereof in all material respects;
(vii) The Company is exempt from the provisions of the Public
Utility Holding Company Act, except Section 9(a)(2) thereof relating
to the acquisition of securities of other public utility companies;
(viii) Each of this Agreement and the Registration Rights
Agreement has been duly authorized, executed and delivered by the
Company; and the Registration Rights Agreement constitutes a valid
and binding obligation of the Company, enforceable against the
Company in accordance with its terms (except that such counsel need
express no opinion as to the enforceability of Section 5
13
thereof), subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and general equity
principles (whether considered in a proceeding in equity or at law).
(ix) The Exchange Act Reports (other than the financial
statements and supporting schedules included therein or omitted
therefrom, as to which such counsel need not express an opinion),
when they became effective or were filed with the Commission, or as
subsequently amended prior to the date of this Agreement, as the
case may be, complied as to form in all material respects with the
requirements of the Exchange Act and the applicable published rules
and regulations thereunder; and
(x) It is not necessary in connection with (i) the offer, sale
and delivery of the Offered Securities by the Company to the
Purchaser pursuant to this Agreement or (ii) the resales of the
Offered Securities by the Purchaser in the manner contemplated
hereby to register the Offered Securities under the Securities Act
or to qualify an indenture in respect thereof under the Trust
Indenture Act assuming the accuracy of the Purchaser's
representations set forth in Section 4 of this Agreement, and the
due performance by the Purchaser of its agreements as set forth in
that Section, including the resale of the Offered Securities in
conformity with such representations and agreements.
In giving such opinion, such counsel may limit its opinion to
the law of The Commonwealth of Massachusetts and the federal law of
the United States. Such counsel may also state that it has relied
upon certificates of public officials and, insofar as such opinion
involves factual matters, it has relied upon certificates of
officers of the Company. In rendering its opinion, such counsel may
rely as to matters of Florida law upon the opinion of Xxxxxx X.
XxXxxxxx, Esq., and may assume the due authorization, execution and
delivery of all documents by parties thereto, other than the
Company. In addition to the matters set forth above, such opinion
shall also include a statement to the effect that nothing has come
to the attention of such counsel which causes it to believe that the
Offering Document, as of the date of this Agreement or as of the
Closing Date, or any amendment or supplement thereto, as of its
issue date or as of the Closing Date, contained any untrue statement
of a material fact or omitted to state any material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; it being
understood that such counsel need express no comment as to the
financial statements, including the notes thereto and supporting
schedules, or other financial information and data contained in the
Offering Document. With respect to such statement, such counsel may
state that its belief is based upon procedures set forth therein
satisfactory to the Purchaser but is without independent
investigation or verification.
14
(d) The Purchaser shall have received an opinion, dated the Closing
Date, of Xxxxxx X. XxXxxxxx, Esq., general counsel of the Company,
reasonably satisfactory in form and substance to the Purchaser and solely
to the effect that:
(i) The Company has been duly incorporated and is a validly
existing corporation in good standing under the laws of the State of
Florida, with corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Offering Document and to enter into and perform its obligations
under each of this Agreement, the Registration Rights Agreement and
the Indenture;
(ii) Each Significant Subsidiary has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, and has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Offering Document; except
as otherwise disclosed in the Offering Document, all of the issued
and outstanding capital stock of each Significant Subsidiary has
been duly authorized and validly issued, is fully paid and
non-assessable and is owned of record and, to the best of such
counsel's knowledge, beneficially, by the Company, directly or
indirectly through subsidiaries of the Company, free and clear of
any lien, encumbrance or defect; and none of the outstanding shares
of capital stock of any Significant Subsidiary was issued in
violation of the preemptive or, to the best of such counsel's
knowledge, similar rights of any securityholder of such Significant
Subsidiary;
(iii) Each of the Offered Securities and the Indenture has
been duly authorized, executed and delivered by the Company; the
Offered Securities, when validly authenticated and delivered by the
Trustee, will be validly issued; the Offered Securities and the
Indenture, when validly authenticated, executed and delivered by the
Trustee, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and general
equitable principles;
(iv) All descriptions in the Offering Document of written
contracts and other documents to which the Company is a party are
accurate in all material respects;
(v) No filing, registration or qualification with, or
authorization, approval, consent, license, order or decree of, any
court or governmental agency or body (including without limitation
the Florida Public Service Commission) is necessary or required in
connection with the due authorization, execution and delivery of
this Agreement, the Registration Rights Agreement or the Indenture
or for the offering, issuance, sale or delivery of the Offered
Securities by the Company,
15
except such as may be required under state securities laws as to
which such counsel need express no opinion, and assuming the
accuracy of the Purchaser's representations set forth in Section 4
of this Agreement, and the due performance by the Purchaser of its
agreements as set forth in that Section, including the resale of the
Offered Securities in conformity with such representations and
agreements;
(vi) The execution, delivery and performance by the Company of
this Agreement, the Registration Rights Agreement, the Offered
Securities and the Indenture and the consummation of the
transactions contemplated by this Agreement (including the issuance
and sale of the Offered Securities and the use of the proceeds from
the sale of the Offered Securities as described in the Offering
Document under the caption "Use of Proceeds") and the Registration
Rights Agreement do not and will not, whether with or without the
giving of notice or lapse of time or both, (i) violate, constitute a
breach of, or default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of
the Company pursuant to any agreement or instrument that is listed
as an exhibit to the Company's Form 10-K for the year ended December
31, 2001 or any of the Company's Forms 10-Q or 8-K filed thereafter
but on or prior to the date of such opinion, or (ii) violate (x) the
charter or by-laws of the Company or any Significant Subsidiary, (y)
any applicable statute, rule or regulation, or (z) any judgment,
order, writ or decree known to such counsel of any government,
government instrumentality or court; and
(vii) Each of this Agreement and the Registration Rights
Agreement has been duly authorized, executed and delivered by the
Company;
In giving such opinion, such counsel may limit her opinion to
the law of the State of Florida, and such counsel may rely as to all
matters governed by the laws of jurisdictions other than the law of
the State of Florida, upon the opinion of counsel satisfactory to
the Purchaser. Such counsel may assume the due authorization,
execution and delivery of documents by the parties thereto, other
than the Company.
In addition to the matters set forth above, such opinion shall
also include a statement to the effect that nothing has come to the
attention of such counsel which causes her to believe that the
Offering Document, as of the date of this Agreement or as of the
Closing Date, or any amendment or supplement thereto, as of its
issue date or as of the Closing Date, contained any untrue statement
of a material fact or omitted to state any material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; it being
understood that such counsel need express no comment as to the
financial statements, including the notes thereto and supporting
schedules, or other financial information and data contained in the
Offering Document. With respect to such statement, such counsel may
state that her belief is based upon
16
procedures set forth therein satisfactory to the Purchaser but is
without independent investigation or verification.
(e) The Purchaser shall have received from Ropes & Xxxx, counsel for
the Purchaser, such opinion or opinions, dated the Closing Date, with
respect to the validity of the Offered Securities delivered on such
Closing Date, the Offering Document and other related matters as the
Purchaser may 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.
(f) The Purchaser shall have received a certificate, dated the
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that the representations and warranties of the Company in this Agreement
are true and correct, that the Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, and that, subsequent to the
date of the most recent financial statements in the Offering Document
there has been no material adverse change in the condition (financial or
other), business, properties or results of operations of the Company and
its subsidiaries taken as a whole except as set forth in or contemplated
by the Offering Document.
(g) The Purchaser shall have received a letter, dated the Closing
Date, of PricewaterhouseCoopers LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred to
in such subsection will be a date not more than three days prior to the
Closing Date for the purposes of this subsection.
The Company will furnish the Purchaser with such conformed copies of such
opinions, certificates, letters and documents as the Purchaser reasonably
requests. The Purchaser may in its sole discretion waive compliance with
any conditions to the obligation of the Purchaser hereunder.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless the Purchaser, its
partners, directors and officers and each person, if any, who controls the
Purchaser within the meaning of Section 15 of the Securities Act, against
any losses, claims, damages or liabilities, joint or several, to which the
Purchaser may become subject, under the Securities Act 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 any material fact contained in the Offering
Document, or any amendment or supplement thereto, or the Preliminary
Offering Circular, as amended or supplemented, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact necessary to make the statements therein not misleading, and will
reimburse the Purchaser for any legal or other expenses reasonably
incurred by the
17
Purchaser in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred;
provided, however, that 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 an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon
and in conformity with written information furnished to the Company by the
Purchaser specifically for use therein, it being understood and agreed
that the only such information consists of the information described as
such in subsection (b) below; and, provided, further, that, this indemnity
with respect to the Offering Document, the Preliminary Offering Circular,
or any amendment or supplement thereto, shall not inure to the benefit of
the Purchaser (or any person controlling the Purchaser) from whom the
person asserting any such loss, claim, damage or liability purchased the
Offered Securities that are the subject thereof to the extent such sale
was an initial resale of the Securities if (i) the Purchaser did not send
or deliver to such person a copy of the Offering Document (or the Offering
Document, as amended or supplemented) (excluding delivery of documents
incorporated therein by reference) at or prior to the confirmation of the
sale of the Offered Securities to such person (but only to the extent that
such loss, claim, damage or liability is determined by a court of
competent jurisdiction to arise out of the untrue statement or omission of
a material fact that was corrected in the Offering Document (or the
Offering Document, as amended or supplemented) that was not delivered by
the Purchaser at or prior to confirmation of sale) in any case where such
delivery is required by the Act, (ii) the Company has provided to the
Purchaser sufficient quantities of the Offering Document (or the Offering
Document, as amended or supplemented) in sufficient time to enable the
Purchaser to deliver to such person a copy of the Offering Document (or
the Offering Document, as amended or supplemented) in a timely manner, and
(iii) the untrue statement or omission of a material fact contained in the
Offering Document, the Preliminary Offering Circular or any amendment or
supplement thereto was corrected in the Offering Document (or the Offering
Document, as amended or supplemented).
(b) The Purchaser will indemnify and hold harmless the Company, its
directors and officers and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act, against any
losses, claims, damages or liabilities to which the Company may become
subject, under the Securities Act 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
any material fact contained in the Offering Document, or any amendment or
supplement thereto, or the Preliminary Offering Circular, or any amendment
or supplement thereto or arise out of or are based upon the omission or
the alleged omission to state therein a material fact necessary to make
the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by the
Purchaser specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that
the only such information
18
furnished by the Purchaser consists of the following information in the
Offering Document: (i) the second sentence of the eighth paragraph under
the caption "Plan of Distribution" and (ii) the ninth paragraph under the
caption "Plan of Distribution".
(c) Promptly after receipt by an indemnified party under this
Section 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 subsection (a) or (b) above, notify the
indemnifying party 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 subsection (a)
or (b) above. 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 wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any legal
or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional
release of such indemnified party from all liability on any claims that
are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to
act by or on behalf of such indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or
(b) above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Purchaser on the
other from the offering of the Offered Securities or (ii) if the
allocation provided by clause (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 (i) above but also the relative fault of
the Company on the one hand and the Purchaser on the other in connection
with the statements or omissions which 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 the Purchaser on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total discounts and
commissions received by the Purchaser from the Company under this
Agreement. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue
19
statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the
Purchaser and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence
of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this subsection
(d), the Purchaser shall not be required to contribute any amount in
excess of the amount by which the total price at which the Offered
Securities purchased by it were resold exceeds the amount of any damages
which the Purchaser has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each partner, director or
officer of the Purchaser and each person, if any, who controls the
Purchaser within the meaning of the Securities Act; and the obligations of
the Purchaser under this Section shall be in addition to any liability
which the Purchaser may otherwise have and shall extend, upon the same
terms and conditions, to each director and officer of the Company and to
each person, if any, who controls the Company within the meaning of the
Securities Act.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the Purchaser set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
the Purchaser, the Company or any of their respective representatives, officers
or directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If for any reason the purchase of the Offered
Securities by the Purchaser is not consummated, the Company shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
5 and the respective obligations of the Company and the Purchaser pursuant to
Section 7 shall remain in effect, and if any Offered Securities have been
purchased hereunder the representations and warranties in Section 2 and all
obligations under Section 5 shall also remain in effect. If the purchase of the
Offered Securities by the Purchaser is not consummated for any reason other than
solely because of the occurrence of any event specified in clause (iii), (iv),
(v) or (vi) of Section 6(b), the Company will reimburse the Purchaser for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by it in connection with the offering of the Offered Securities.
9. Notices. All communications hereunder will be in writing and, if sent
to the Purchaser will be mailed, delivered or telegraphed and confirmed to the
Purchaser at Credit Suisse First Boston Corporation, Eleven Xxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000-0000, Attention: Transaction Advisory Group, or, if sent to the
Company, will be mailed, delivered or telegraphed
20
and confirmed to it at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000,
Attention: Corporate Secretary.
10. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the partners,
officers and directors and controlling persons referred to in Section 7, and no
other person will have any right or obligation hereunder, except that holders of
Offered Securities shall be entitled to enforce the agreements for their benefit
contained in the second and third sentences of Section 5(b) hereof against the
Company as if such holders were parties hereto.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same agreement.
12. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS
PRINCIPLES OF CONFLICTS OF LAWS.
13. Additional Purchaser Representation. The Purchaser further represents
to the Company that on the Closing Date the Purchaser will deliver the
Outstanding Notes to the Company free and clear of any pledge, lien, security
interest, encumbrance or claim that the Purchaser created, permitted or imposed
on the Outstanding Notes during the period from October 1, 2002 to the Closing
Date; and to the knowledge of the Purchaser, the Outstanding Notes to be
delivered by the Purchaser pursuant to this Agreement were acquired on October
1, 2002 by the Purchaser free of any pledges, liens, security interests,
encumbrances or claims; and the Purchaser has full power and authority to effect
the delivery of the Outstanding Notes as contemplated by this Agreement.
14. Jurisdiction. The Company hereby submits to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan in The
City of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
21
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the
Purchaser in accordance with its terms.
Very truly yours,
TECO ENERGY, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President/Risk Management
and Treasury and Treasurer
The foregoing Purchase Agreement is hereby
confirmed and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Director
SCHEDULE A
List of Significant Subsidiaries
1. Tampa Electric Company
2. TECO Power Services Corporation
3. TECO Transport Corporation
4. TECO Diversified, Inc.
5. TECO Coal Corporation
A-1
