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EXHIBIT 1.1
EXECUTION COPY
$200,000,000
TECO ENERGY, INC.
7.20% NOTES DUE 2011
UNDERWRITING AGREEMENT
September 21, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. TECO Energy, Inc., a Florida corporation ("COMPANY"),
proposes to issue and sell $200,000,000 principal amount of its 7.20% Notes due
2011 ("OFFERED SECURITIES") to Credit Suisse First Boston Corporation (the
"UNDERWRITER"), 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 amended and supplemented by a fourth supplemental indenture
dated as of April 30, 2001 and a fifth supplemental indenture dated as of
September 10, 2001 (the Base Indenture, as so amended and supplemented, being
referred to as the "INDENTURE"). The Company hereby agrees with the Underwriter
as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Underwriter that:
(a) A registration statement (No. 333-61758), 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
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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 the Underwriter, 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 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 and in which the failure to so qualify could 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 A
hereto) has been duly incorporated and is validly existing as a
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 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; the Offered
Securities have been duly authorized by the Company; and when the
Offered Securities are validly authenticated, delivered and paid for
pursuant to this Agreement on the Closing Date (as defined below), and,
in the case of the Indenture, when validly executed and delivered by
the Trustee, the Indenture will have been duly executed and delivered
by the Company, the Offered Securities will have been duly executed,
issued and delivered by the Company and will conform to the description
thereof contained in the Prospectus, and the Indenture and the Offered
Securities 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 to 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 have been obtained and 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,
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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 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, if
determined adversely to the Company or any of its subsidiaries, 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 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 except the notes to the interim
financial statements) 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.
(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 such 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.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Underwriter, and the Underwriter agrees to purchase from the Company
$200,000,000 principal amount of the Offered Securities. The purchase price of
the Offered Securities shall consist of: (a) $160,093,129.89 (the "DOLLAR
PRICE") to be retained by the Underwriter in connection with the purchase of the
Outstanding Notes (as defined below) pursuant to the Purchase Agreement between
the Underwriter and Xxxxxx Xxxxxxx & Co. Incorporated, dated September 14, 2001,
(b) (i) $51,384,870.11, which includes accrued interest of $5,800,000 from May
1, 2001 to September 21, 2001 on the Offered Securities, less (ii) accrued
interest on the Dollar Price to be retained by the Underwriter, calculated at
the Underwriter's cost of funds, from September 17, 2001 to the Closing Date,
and (c) the delivery by the Underwriter to the Company of $150,000,000 aggregate
principal amount of Remarketed Notes due September 15, 2038, issued by the
Company on September 16, 1998 (the "OUTSTANDING NOTES").
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The Company will deliver against payment of the purchase price
(including that portion of the purchase price consisting of delivery by the
Underwriter 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") and registered in the name of Cede & Co., as nominee for
DTC, and to be credited to the Underwriter's account 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 the Underwriter 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 Underwriter 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 September 26, 2001, or at such other time not
later than seven full business days thereafter as the Underwriter 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 Underwriter
pursuant to Section 6, will be delivered at the offices of Xxxxxx & Dodge LLP,
Xxx Xxxxxx 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 Underwriter. It is understood that the Underwriter
proposes 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 the
Underwriter that it will furnish to counsel for the Underwriter, one conformed
copy of the registration statement relating to the Offered Securities, 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 Underwriter 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 Underwriter 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 CSFB has reasonably objected in writing, and the Company will
also advise the Underwriter 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 Underwriter 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 the 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 Underwriter 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
Underwriter's consent to, nor the Underwriter's delivery of, any such
amendment or 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
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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 the 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
Underwriter reasonably requests. The Company will pay the expenses of
printing and distributing to the Underwriter all such documents.
(f) The Company will use its best efforts, in cooperation with
the Underwriter, to qualify the Offered Securities for sale and to
determine their eligibility for investment under the laws of such
jurisdictions as the Underwriter designates 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 the 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
the 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, and (ii) from time to
time, such other information concerning the Company as the 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 Underwriter, 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 Underwriter designates 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 Underwriter 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 Underwriter.
(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, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of the Underwriter 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 Underwriter,
but in no event ending later than thirty (30) days from the Closing
Date.
6. Conditions of the Obligations of the Underwriter. The obligation of
the Underwriter 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:
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(a) The Underwriter shall have received a letter, 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;
(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 (B) and (C) 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 contained in the Registration Statement
(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.
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(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 Underwriter, 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 Underwriter, 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 (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 Underwriter, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities.
(d) The Underwriter shall have received an opinion, 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 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 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, when validly authenticated
and delivered by the Trustee, will be validly issued; the
Offered Securities and 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 the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and
fair dealing; 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 expresses 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,
constitute a breach of, or default or similar event under or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company
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pursuant to any written contract, indenture, mortgage, deed of
trust, loan or credit agreement, note lease or any other
agreement or instrument that is listed as an exhibit to the
Company's Form 10-K for the year ended December 31, 2000 or
any of the Company's Forms 10-Q and 8-K filed thereafter but
on or prior to the date of such opinion, nor will such action
result in any violation of the provisions of (i) the charter
or by-laws of the Company; (ii) any applicable statute or rule
or regulation, or (iii) any judgment, order, writ or decree
known to us, of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the
Company or any of its properties, assets or operations;
(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
Prospectus, will not be an "investment company" as defined in
the Investment Company Act of 1940;
(vi) The Indenture has been duly qualified under the
Trust Indenture Act;
(vii) This Agreement has been duly authorized,
executed and delivered by the Company;
(viii) 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 best of 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;
(ix) 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;
(x) 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;
(xi) 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, 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
(xii) The statements made in the Prospectus under the
captions "Description of the Notes" and "Description of Debt
Securities," insofar as such statements purport to constitute
a summary of the terms of any of the Indenture or the Offered
Securities, constitute accurate summaries thereof in all
material respects.
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, and such counsel may
rely as to all matters governed by the laws of jurisdictions
other than the law of The Commonwealth of Massachusetts, the
law of the State of Florida and the federal law of the United
States, upon the opinion of counsel satisfactory to the
Underwriter. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the
Company and certificates of public officials. In rendering its
opinion, such counsel may rely as to matters of Florida law
upon the opinion of Xxxxxx X. XxXxxxxx, Esq. 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
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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, or other
financial 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 Underwriter but is without
independent check and verification.
(e) The Underwriter shall have received an opinion, 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
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, 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 the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing;
(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 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 or the
Indenture or for the offering, issuance, sale or delivery of
the Offered Securities by the Company, except such as have
been obtained and made under the Act, the Rules and
Regulations thereunder, and the Trust Indenture Act and such
as may be required under state securities laws as to which
such counsel expresses no opinion;
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(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,
constitute a breach of, or default or similar event 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 written contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other
agreement or instrument that is listed as an exhibit to the
Company's Form 10-K for the year ended December 31, 2000 or
any of the Company's Forms 10-Q and 8-K filed thereafter but
on or prior to the date of such opinion, nor will such action
result in any violation of the provisions of (i) the charter
or by-laws of the Company or any Significant Subsidiary, (ii)
any applicable statute, rule or regulation, or (iii) any
judgment, order, writ or decree known to such counsel, of any
government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any
Significant Subsidiary or any of their properties, assets or
operations; 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 satisfactory to the
Underwriter.
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, or other financial 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 Underwriter but is
without independent check and verification.
(f) The Underwriter shall have received from Ropes & Xxxx,
counsel for the Underwriter, such opinion or opinions, 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 Statements, the Prospectus and other related matters as
the Underwriter 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 Underwriter 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 Underwriter 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
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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 Underwriter with such conformed copies of such
opinions, certificates, letters and documents as the Underwriter reasonably
requests. The Underwriter may in its sole discretion waive compliance with any
conditions to the obligations of the Underwriter.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless the
Underwriter, its partners, directors and officers and each person, if
any, who controls the Underwriter within the meaning of Section 15 of
the Act, against any losses, claims, damages or liabilities, joint or
several, to which the 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 the Underwriter for any
legal or other expenses reasonably incurred by the 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 the Underwriter specifically for use therein, it being
understood and agreed that the only such information furnished by the
Underwriter 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 the Underwriter
(or any person controlling the Underwriter) from whom the person
asserting any such loss, claim, damage or liability purchased the
Offered Securities that are the subject thereof if the 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
the Underwriter at or prior to confirmation of sale) in any case where
such delivery is required by the Act, the Company has provided to the
Underwriter sufficient quantities of the Prospectus (or the Prospectus,
as amended or supplemented) in sufficient time to enable the
Underwriter to deliver to such person a copy of the Prospectus (or the
Prospectus, as amended or supplemented) in a timely manner, and 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) The Underwriter 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 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 the
Underwriter 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 Underwriter consists of
the following information in the Prospectus: (i) the selling concession
and discount reallowance figures and the third sentence appearing in
the fourth paragraph under the caption "Underwriting", (ii) the second
clause of the second sentence and the third sentence appearing in the
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sixth paragraph under the caption "Underwriting", and (iii) the
information contained in the seventh and tenth paragraphs under the
caption "Underwriting". Notwithstanding the foregoing, indemnification
under this Section 7(b) shall not be available to the Company with
respect to the information in the seventh paragraph under the caption
"Underwriting" in the Prospectus to the extent such information is an
untrue statement or alleged untrue statement because the Offered
Securities are not of the class and type of securities described in
Rule 2720(c)(3)(C) of the Conduct Rules of the National Association of
Securities Dealers, Inc.
(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
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 Underwriter 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 Underwriter 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 Underwriter 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 Underwriter. 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), the Underwriter shall not 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 the
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 the Underwriter under this
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Section shall be in addition to any liability which the 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 a 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 the 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
the 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 Underwriter 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 Underwriter
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 Underwriter is not consummated for any reason other
than solely because of the occurrence of any event specified in clause (iii),
(iv) or (v) of Section 6(c), the Company will reimburse the Underwriter 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. Notices. All communications hereunder will be in writing and, if
sent to the Underwriter, will be mailed, delivered or telegraphed and confirmed
to Credit Suisse First Boston Corporation, Eleven Madison Avenue, New York, N.Y.
10010-3629, Attention: Transactions Advisory Group, or, if sent to the Company,
will be mailed, delivered or telegraphed 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 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 the Underwriter shall be deemed to be a successor by reason
merely of such purchase.
11. Representation of the Underwriter. The Underwriter represents to
the Company that on the Closing Date the Underwriter will deliver the
Outstanding Notes to the Company free and clear of any pledge, lien, security
interest, encumbrance or claim that the Underwriter created, permitted or
imposed on the Outstanding Notes from September 17, 2001 to the Closing Date;
and to the knowledge of the Underwriter, the Outstanding Notes to be delivered
by the Underwriter pursuant to this Agreement were at the time acquired by the
Underwriter free of any pledges, liens, security interests, encumbrances or
claims; and the Underwriter has full power and authority to effect the delivery
of the Outstanding Notes as contemplated by this Agreement.
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.
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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
Underwriter in accordance with its terms.
Very truly yours,
TECO ENERGY, INC.
By /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President - Finance and
Chief Financial Officer
15
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxxxx X. Xxxx
------------------------------
Name: Xxxxxxx X. Xxxx
Title: Director
16
SCHEDULE A
LIST OF SIGNIFICANT SUBSIDIARIES
1. Tampa Electric Company
2. TECO Power Services Corporation
3. TECO Transport Corporation
4. TECO Coal Corporation
5. TECO Diversified, Inc.
B-1
