Exhibit 1.1
$700,000,000
TECO ENERGY, INC.
6.125% NOTES DUE MAY 1, 2007
7.000% NOTES DUE MAY 1, 2012
UNDERWRITING AGREEMENT
May 8, 0000
Xxxx xx Xxxxxxx Securities LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
BNY Capital Markets, Inc.
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx Barney, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representatives of the several Underwriters set forth
on Schedule A hereto
Dear Sirs:
1. Introductory. TECO Energy, Inc., a Florida corporation ("COMPANY"),
proposes to issue and sell (i) $300,000,000 principal amount of its 6.125% Notes
due 2007 (the "2007 Notes") and (ii) $400,000,000 principal amount of its 7.000%
Notes due 2012 (the "2012 Notes" and, together with the 2007 Notes, the "OFFERED
SECURITIES") to the underwriters named in Schedule A hereto (the
"UNDERWRITERS"), to be issued under an indenture, dated as of August 17, 1998
("BASE INDENTURE"), between the Company and The Bank of New York, as trustee
("TRUSTEE"), as heretofore amended and as amended and supplemented by the
seventh supplemental indenture dated as of May 1, 2002 (the Base Indenture, as
so amended and supplemented, being referred to herein as the "INDENTURE"). The
Company hereby agrees with the Underwriters as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-83958), including a
prospectus, relating to the Offered Securities has been filed with the
Securities and Exchange Commission ("COMMISSION") and has been declared
effective. Such registration statement, as amended at the date of this
Agreement and including all material incorporated by reference therein,
is hereinafter referred to as the "REGISTRATION STATEMENT", and the
prospectus relating to the Offered Securities included in the
Registration Statement, as supplemented to reflect the terms of the
offering of the Offered Securities, as first filed with the Commission
pursuant to and in accordance with Rule 424(b) ("RULE 424(b)") under
the Securities Act of 1933, as amended (the "ACT"), including all
material incorporated by reference therein, is hereinafter referred to
as the "PROSPECTUS". No document has been or will be prepared or
distributed in reliance on Rule 434 under the Act. 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. Any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration
Statement, the Prospectus, any related preliminary prospectus or
preliminary prospectus supplement shall be deemed to refer to and
include the filing of any document under the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT") after the date of this Agreement,
or the issue date of the Prospectus, any related preliminary prospectus
or preliminary prospectus supplement, as the case may be, deemed to be
incorporated therein by reference.
(b) On the effective date of the Registration Statement
relating to the Offered Securities, such Registration Statement
conformed in all respects to the requirements of the Act, the Trust
Indenture Act of 1939 ("TRUST INDENTURE ACT") and the rules and
regulations of the Commission ("RULES AND REGULATIONS") and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and on the date of this Agreement,
the Registration Statement and the Prospectus conform in all respects
to the requirements of the Act, the Trust Indenture Act and the Rules
and Regulations, and neither of such documents includes as of the date
of this Agreement or will include as of the date of any amendment or
supplement thereto or the Closing Date (as defined below) any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, except that the foregoing does not apply to
that part of the Registration Statement which constitutes the Statement
of Eligibility (Form T-1) of the Trustee under the Trust Indenture Act
and statements in or omissions from any such documents based upon
written information furnished to the Company by any Underwriter through
Banc of America Securities LLC, BNY Capital Markets, Inc., Credit
Suisse First Boston Corporation and Xxxxxxx Xxxxx Xxxxxx Inc., as
representatives for the Underwriters ("REPRESENTATIVES"), if any,
specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 7(b) hereof.
(c) 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
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Prospectus; 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").
(d) 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 B
hereto) has been duly incorporated and is an existing corporation in
good standing under the laws of the jurisdiction of its incorporation,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus; 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 Prospectus,
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.
(e) The Indenture has been duly authorized by the Company and
has been duly qualified under the Trust Indenture Act; and 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 Prospectus, 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.
(f) 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 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), except such as
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have been obtained or made under the Act and the Trust Indenture Act
and such as may be required under state securities laws.
(g) The execution, delivery and performance of the Indenture
and this 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 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, domestic or foreign, having jurisdiction over the Company or any
Significant Subsidiary of the Company 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, defaults or violations 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.
(h) This Agreement has been duly authorized, executed and
delivered by the Company.
(i) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company,
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
or this 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.
(j) The financial statements of the Company, together with the
related notes, included in the Registration Statement and the
Prospectus 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 Prospectus, 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 in the Registration
Statement 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.
(k) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements incorporated by reference in
the Prospectus, 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.
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(l) 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 Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940,
as amended.
(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 Company and each of its subsidiaries have 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.
(o) Any certificate signed by any officer of the Company or
any of its subsidiaries delivered to the Representatives or to counsel
for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the 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 forth, the Company agrees to sell to each
Underwriter, and each Underwriter, severally and not jointly, agrees to purchase
from the Company the principal amount of Offered Securities set forth in
Schedule A opposite the name of such Underwriter, plus any additional amount of
Offered Securities that such Underwriter may become obligated to purchase
pursuant to the provisions of Section 9 hereof. The purchase price of the 2007
Notes shall be 99.133% of the principal amount of the notes and the purchase
price for the 2012 Notes shall be 99.240% of the principal amount of the notes.
The Company will deliver against payment of the purchase prices the
2007 Notes and the 2012 Notes in the form of permanent global securities in
definitive form (the "GLOBAL SECURITIES") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC, and to be credited to the account of Credit
Suisse First Boston Corporation with respect to the 2007 Notes and Xxxxxxx Xxxxx
Barney Inc. with respect to the 2012 Notes for the respective accounts of the
Underwriters with DTC. Interests in any permanent global securities will be held
only in book-entry form through DTC, except in the limited circumstances
described in the Prospectus. Payment for the Offered Securities shall be made by
delivery by Credit Suisse First Boston Corporation with respect to the 2007
Notes and Xxxxxxx Xxxxx Xxxxxx Inc. with respect to the 2012 Notes 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 May 13, 2002, or at such other time not
later than seven full business days thereafter as the Representatives 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. It is understood that each
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Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase prices for, the
Offered Securities which it has agreed to purchase. 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-receipts for the
Offered Securities and any additional documents requested by the Representatives
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. Offering by the Underwriters. It is understood that the Underwriters
propose to offer the Offered Securities for sale to the public as set forth in
the Prospectus.
5. Certain Agreements of the Company. The Company agrees with each
Underwriter that it will furnish to counsel for the Underwriters, one conformed
copy of the Registration Statement, including all exhibits, in the form it
became effective and all amendments thereto and that, in connection with the
offering of the Offered Securities:
(a) The Company will prepare the Prospectus in a form approved
by the Representatives and file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b) within the time
prescribed under Rule 424(b).
(b) The Company will advise the Representatives promptly of
any proposal to amend or supplement the Registration Statement or the
Prospectus and will not effect any such amendment or supplementation to
which the Representatives have reasonably objected in writing, and the
Company will also advise the Representatives promptly of the filing of
any such amendment or supplement; 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; and the Company will also advise the Representatives
promptly of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement or of any part
thereof and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if
issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by an Underwriter or any dealer, any event occurs 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 under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company promptly will notify the Representatives of such event and
will promptly prepare and file with the Commission, at its own expense,
an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither the
Representatives' consent to, nor an Underwriter's delivery of, any such
amendment or
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supplement shall constitute a waiver of any of the conditions set forth
in Section 6 hereof.
(d) Not later than 16 months after the date of this Agreement,
the Company will make generally available to its securityholders an
earnings statement covering a period of at least 12 months beginning
after the later of (i) the effective date of the registration statement
relating to the Offered Securities, (ii) the effective date of the most
recent post-effective amendment to the Registration Statement to become
effective prior to the date of this Agreement and (iii) the date of the
Company's most recent Annual Report on Form 10-K filed with the
Commission prior to the date of this Agreement, which will satisfy the
provisions of Section 11(a) of the Act.
(e) The Company will furnish to each Underwriter copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the
Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the requesting
Underwriter reasonably requests. The Company will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Company will use its best efforts, in cooperation with
the Underwriters, to qualify the Offered Securities for sale and to
determine their eligibility for investment under the laws of such
jurisdictions as the Representatives designate and will continue such
qualifications in effect so long as required for the distribution;
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.
(g) During the period of five years after the date of this
Agreement, the Company will furnish to each Underwriter 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
each Underwriter (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 web site designated by the Company to which
the Underwriters have access, and (ii) from time to time, such other
information concerning the Company as the requesting Underwriter 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.
(h) The Company will pay all expenses incident to the
performance of its obligations under this Agreement and the Indenture,
including (i) all expenses in connection with the execution, issue,
authentication, packaging and initial delivery of the Offered
Securities, the preparation and printing of this Agreement, the Offered
Securities, the Indenture, the Prospectus and any amendments and
supplements thereto, and any other document relating to the issuance,
offer, sale and delivery of the Offered Securities, (ii) any filing
fees or other expenses (including fees and disbursements of counsel to
the Underwriters, which fees and disbursements shall not exceed $5,000)
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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 Representatives designate and the
printing of memoranda relating thereto; (iii) any applicable filing fee
incident to the review by the National Association of Securities
Dealers, Inc. of the terms of the offering of the Offered Securities
and the fees and disbursements of counsel to the Underwriters in
connection therewith (which counsel fees shall be included in the cap
set forth above), (iv) any fees charged by investment rating agencies
for the rating of the Offered Securities, and (v) expenses incurred in
distributing the Prospectus, any preliminary prospectuses, or any
preliminary prospectus supplements (including any amendments and
supplements thereto) to the Underwriters.
(i) 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 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 (other than debt securities
the interest on which is excluded from gross income for federal income
tax purposes under the Internal Revenue Code of 1986, as amended) or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of the
Representatives for a period beginning at the date of this Agreement
and ending at the later of the Closing Date or the lifting of trading
restrictions by the Representatives, but in no event ending later than
fifteen (15) days from the Closing Date.
6. Conditions of the Obligations of the Underwriters. The obligation of
the Underwriters 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) The Representatives shall have received a letter addressed
to the Underwriters, dated the date of this Agreement, of
PricewaterhouseCoopers LLP confirming that they are independent public
accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and
schedules and any summary of earnings examined by them and
included in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
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 in
the Registration Statements;
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(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 in the Prospectus do
not comply as to form in all material respects with
the applicable accounting requirements of the Act and
the related published Rules and Regulations or any
material modifications should be made to such
unaudited financial statements for them to be in
conformity with generally accepted accounting
principles;
(B) if any unaudited "capsule" information
is contained in the Prospectus, 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 statements of
income;
(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, as compared with
amounts shown on the latest balance sheet
incorporated by reference in the Prospectus; or
(D) for the period from the closing date of
the latest income statement incorporated by reference
in the Prospectus 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, 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 Prospectus 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 included in the Prospectus (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
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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) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 5(a) of this
Agreement. Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Underwriters, shall be contemplated by
the Commission.
(c) 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 Representatives, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities; (ii)
any downgrading in the rating of any debt securities of the Company by
any "nationally recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the 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 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; or (vi) any change in U.S. or
international financial, political or economic conditions if, in the
judgment of the Representatives, the effect of any event or change
referred to in clauses (v) or (vi) is so adverse and material as to
make it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion
addressed to the Underwriters, dated the Closing Date, of Xxxxxx &
Dodge LLP, counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a 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 Prospectus, and to enter into
and perform its obligations under this Agreement;
(ii) The Offered Securities and the Indenture each
has been duly authorized, executed and delivered by the
Company; the Offered Securities,
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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 Prospectus; 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 or the Indenture or for the
offering, issuance, sale or delivery of the Offered Securities
by the Company, except such as have been obtained or made
under the Act, the Rules and Regulations thereunder, and the
Trust Indenture Act or such as may be required under state
securities laws as to which such counsel need express no
opinion;
(iv) The execution, delivery and performance by the
Company of this Agreement, the Offered Securities and the
Indenture and the consummation of the transactions
contemplated by this Agreement and in the Registration
Statement (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 Prospectus under the
caption "Use of Proceeds"), 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) There are no contracts, agreements or
understandings known to such counsel between the Company and
any person granting such person the right to require the
Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned
by such person or to require the Company to include such
securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the
Company under the Act;
(vi) 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
Prospectus, will not be an "investment company" as defined in
the Investment Company Act of 1940;
-11-
(vii) The Indenture has been duly qualified under the
Trust Indenture Act;
(viii) This Agreement has been duly authorized,
executed and delivered by the Company;
(ix) The Registration Statement has become effective
under the Act, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such
opinion within the time period required by Rule 424(b) and, to
the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part
thereof has been issued under the Act and no proceedings for
that purpose have been instituted or are pending or threatened
by the Commission;
(x) 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;
(xi) The Registration Statement, the Prospectus,
excluding the documents incorporated by reference therein, and
each amendment or supplement thereto, excluding the documents
incorporated by reference therein, as of their respective
effective or issue dates (other than the financial statements
and supporting schedules included therein or omitted therefrom
and the statements of Eligibility on Form T-1 of the Trustee,
as to which such counsel need not express an opinion) complied
as to form in all material respects with the requirements of
the Act, the Rules and Regulations thereunder and the Trust
Indenture Act;
(xii) The documents incorporated by reference in the
Prospectus and each amendment or supplement thereto (other
than the financial statements and supporting schedules
included therein or omitted therefrom and the statements of
Eligibility on Form T-1 of the Trustee, 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 Rules and Regulations
thereunder; and
(xiii) The statements made in the Prospectus under
the captions "Description of the Notes" and "Description of
the Debt Securities," insofar as such statements purport to
constitute a summary of the terms of any of the Indenture or
the Offered Securities, constitute an accurate summary thereof
in all material respects.
In giving such opinion, such counsel may limit its
opinion to the law of the Commonwealth of Massachusetts, the
Florida Business Corporation Act and the federal law of the
United States, and such counsel may rely as to all matters
governed by the laws of jurisdictions other than the law of
the Commonwealth of Massachusetts and the federal law of the
United States, upon the opinion of counsel satisfactory to the
Representatives. Such counsel may also state that it has
relied upon certificates of public officials and, insofar as
such opinion
-12-
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
Registration Statement, as of its effective date, or any
amendment thereto, as of its effective date, contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading or that the
Prospectus, as of its issue date 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 Forms T-1 or the financial statements, including the
notes thereto and supporting schedules, or other financial
information and data contained in the Registration Statement
or the Prospectus. With respect to such statement, such
counsel may state that its belief is based upon procedures set
forth therein satisfactory to the Representatives but is
without independent investigation or verification.
(e) The Representatives shall have received an opinion
addressed to the Underwriters, dated the Closing Date, of Xxxxxx X.
XxXxxxxx, Esq., general counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a 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 Prospectus and to enter into
and perform its obligations under this Agreement;
(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 Prospectus; except as otherwise disclosed
in the Registration Statement and the Prospectus, 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) The Offered Securities and the Indenture each
has been duly authorized, executed and delivered by the
Company; the Offered Securities,
-13-
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 Registration Statement
of written contracts and other documents to which the Company
is a party are accurate in all material respects; to the best
of such counsel's knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or
referred to in the Registration Statement or to be filed as
exhibits thereto other than those described or referred to
therein or filed or incorporated by reference as exhibits
thereto, and the descriptions thereof or references thereto
are correct in all material respects;
(v) No filing, registration, or qualification with,
or authorization, approval, consent, license, order or decree
of any governmental agency or body or any court (including
without limitation the Florida Public Service Commission) is
necessary or required in connection with the due
authorization, execution and delivery of this Agreement or the
Indenture or for the offering, issuance, sale or delivery of
the Offered Securities by the Company;
(vi) The execution, delivery and performance by the
Company of this Agreement, the Offered Securities and the
Indenture and the consummation of the transactions
contemplated by this Agreement and in the Registration
Statement (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 Prospectus under the
caption "Use of Proceeds") 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) This 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
-14-
satisfactory to the Representatives. 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
Registration Statement, as of its effective date, or any amendment
thereto, as of its effective date, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as its issue date 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 Forms T-1 or the financial
statements, including the notes thereto and supporting schedules, or
other financial information and data contained in the Registration
Statement or the Prospectus. With respect to such statement, such
counsel may state that her belief is based upon procedures set forth
therein satisfactory to the Representatives but is without independent
investigation or verification.
(f) The Representatives shall have received from Ropes & Xxxx,
counsel for the Underwriters, such opinion or opinions addressed to the
Underwriters, dated the Closing Date, with respect to the incorporation
of the Company, the validity of the Offered Securities delivered on
such Closing Date, the Registration Statement, the Prospectus and other
related matters as the Representatives 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.
(g) The Representatives 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, that no stop order suspending the effectiveness of any
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated
by the Commission and, that subsequent to the date of the most recent
financial statements in the Prospectus, 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
Prospectus or as described in such certificate.
(h) The Representatives shall have received a letter addressed
to the Underwriters, 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.
-15-
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Representatives may in their sole discretion waive compliance with
any conditions to the obligations of the Underwriters.
-16-
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each
Underwriter, its partners, directors and officers and each person, if
any, who controls such Underwriter within the meaning of Section 15 of
the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the 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 Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse such Underwriter for any
legal or other expenses reasonably incurred by such Underwriter 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 any Underwriter through the Representatives specifically for
use therein, it being understood and agreed that the only such
information furnished by the Underwriters consists of the information
described as such in subsection (b) below; and, provided, further,
that, this indemnity with respect to the Prospectus or any related
preliminary prospectus or preliminary prospectus supplement shall not
inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim,
damage or liability purchased the Offered Securities that are the
subject thereof if (i) such Underwriter did not send or deliver to such
person a copy of the Prospectus (or the Prospectus, as amended or
supplemented) excluding 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 Prospectus (or the Prospectus, as amended or
supplemented) that was not delivered by such Underwriter at or prior to
confirmation of sale) in any case where such delivery is required by
the Act, (ii) the Company has provided to such Underwriter sufficient
quantities of the Prospectus (or the Prospectus, as amended or
supplemented) in sufficient time to enable such Underwriter to deliver
to such person a copy of the Prospectus (or the Prospectus, as amended
or supplemented) in a timely manner, and (iii) the untrue statement or
omission of a material fact contained in the Prospectus or any related
preliminary prospectus or preliminary prospectus supplement was
corrected in the Prospectus (or the Prospectus, as amended or
supplemented).
(b) Each Underwriter, severally and not jointly, 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 Act, against any losses, claims, damages or
liabilities to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect
-17-
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or
any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated
therein or 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 any Underwriter through the Representatives
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 furnished by the Underwriters consists
of the following information in the Prospectus: (i) the selling
concession and discount reallowance figures and the third sentence
appearing in the third paragraph under the caption "Underwriting", (ii)
the second and third sentences appearing in the fifth paragraph under
the caption "Underwriting", and (iii) the information contained in the
eighth paragraph under the caption "Underwriting."
(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 an 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
-18-
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 Underwriters 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 Underwriters 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 Underwriters
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 underwriting discounts and commissions
received by the Underwriters. The relative fault 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
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), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Offered Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter 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 Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
(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 person, if
any, who controls the Underwriter within the meaning of the Act; and
the obligations of each Underwriter under this Section shall be in
addition to any liability which such Underwriter may otherwise have and
shall extend, upon the same terms and conditions, to each director of
the Company, to each officer of the Company who has signed the
Registration Statement and to each person, if any, who controls the
Company within the meaning of the 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 such Underwriter 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
any Underwriter, 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 Underwriters 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 Underwriters
-19-
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 Underwriters is not consummated for any reason other
than solely because of a default under Section 9 hereof or the occurrence of any
event specified in clause (iii), (iv) or (v) of Section 6(c), the Company will
reimburse the non-defaulting Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
9. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail on the Closing Date to purchase the Offered Securities
which it or they are obligated to purchase under this Agreement (the "DEFAULTED
SECURITIES"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such principal amounts as may be agreed upon and
upon the terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of the Defaulted
Securities does not exceed 10% of the aggregate principal amount of the
Offered Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of the Defaulted
Securities exceeds 10% of the aggregate principal amount of the Offered
Securities to be purchased on such date, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any Underwriter
from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement either (i) the Representatives or (ii) the Company shall have
the right to postpone the Closing Date for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, shall be directed to the Representatives and be
mailed, delivered or telegraphed and confirmed to: Banc of America Securities
LLC, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Attention: Xxxxxx
Xxxxxxxx, BNY Capital Markets, Inc., Xxx Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000 Attention: Xxx Xxxxxxx; Credit Suisse First Boston Corporation, 00
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Transaction Advisory Group,
and Xxxxxxx Xxxxx Barney, Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: Yukari Saegusa, 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.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder. No purchaser of the Offered
Securities from an Underwriter shall be deemed to be a successor by reason
merely of such purchase.
12. 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.
13. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
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
Underwriters in accordance with its terms.
Very truly yours,
TECO ENERGY, INC.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written by the following Representatives for themselves and the
other Underwriters named in Schedule A to the Underwriting Agreement.
BANC OF AMERICA SECURITIES LLC
By /s/ Xxxx Xxxxx
Authorized Signatory
BNY CAPITAL MARKETS, INC.
By /s/ Xxxxxx Xxxxxxx
Authorized Signatory
CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ Xxxxx X. Xxxxxx
Authorized Signatory
Xxxxx X. Xxxxxx
Director
XXXXXXX XXXXX XXXXXX INC.
By /s/ Xxxxxx Xxxxxx
Authorized Signatory
Xxxxxx Xxxxxx
Managing Director
SCHEDULE A
UNDERWRITER PRINCIPAL AMOUNT
----------- ----------------
6.125% NOTES DUE 2007 7.000% NOTES DUE 2012 TOTAL
Banc of America Securities LLC................... $60,000,000 $80,000,000 $140,000,000
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
BNY Capital Markets, Inc......................... 60,000,000 80,000,000 140,000,000
Xxx Xxxx Xx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Credit Suisse First Boston Corporation........... 60,000,000 80,000,000 140,000,000
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Xxxxxxx Xxxxx Xxxxxx Inc......................... 60,000,000 80,000,000 140,000,000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
BNP Paribas...................................... 15,000,000 20,000,000 35,000,000
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
CIBC World Markets Corp.......................... 15,000,000 20,000,000 35,000,000
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Scotia Capital (USA) Inc......................... 15,000,000 20,000,000 35,000,000
0 Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Tokyo-Mitsubishi Securities (USA), Inc........... 15,000,000 20,000,000 35,000,000
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
TOTAL............................................ $300,000,000 $400,000,000 $700,000,000
SCHEDULE B
List of Significant Subsidiaries
1. Tampa Electric Company
2. TECO Power Services Corporation
3. TECO Transport Corporation
4. TECO Diversified, Inc.
