Exhibit 4.15
TECO ENERGY, INC.
and
THE BANK OF NEW YORK
As Trustee
------------
NINTH SUPPLEMENTAL INDENTURE
dated as of June 10, 2003
Supplementing the Indenture
dated as of August 17, 1998
------------
$300,000,000
7.50 % Notes Due 2010
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION............................... 2
Section 101. Definitions................................................................... 2
Section 102. Section References............................................................ 9
ARTICLE TWO DESIGNATION AND TERMS OF THE NOTES.................................................... 9
Section 201. Establishment of Series....................................................... 9
Section 202. Variations in Terms of Notes.................................................. 9
Section 203. Amount and Denominations; the Depositary...................................... 10
Section 204. Interest Rates and Interest Payment Dates..................................... 10
Section 205. Form and Other Terms of the Notes............................................. 10
Section 206. Authentication and Delivery................................................... 10
Section 207. Redemption; No Sinking Fund................................................... 11
ARTICLE THREE RESTRICTIVE COVENANT.................................................................. 11
Section 301. Applicability of Restrictive Covenant......................................... 11
Section 302. Designation of Restricted and Unrestricted Subsidiaries....................... 12
Section 303. Limitation on Certain Liens................................................... 12
ARTICLE FOUR MISCELLANEOUS......................................................................... 13
Section 401. Effect On Original Indenture.................................................. 13
Section 402. Counterparts.................................................................. 13
Section 403. Recitals...................................................................... 13
Section 404. Governing Law................................................................. 13
EXHIBITS
Exhibit A Form of Note.................................................................. A-1
Exhibit B Supplemental Company Order.................................................... B-1
This Ninth Supplemental Indenture, dated as of June 10, 2003 between
TECO Energy, Inc., a corporation duly organized and existing under the laws of
the State of Florida (hereinafter called the "Company") and having its principal
office at TECO Plaza, 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000, and The
Bank of New York, as trustee (hereinafter called the "Trustee") and having its
principal corporate trust office at 000 Xxxxxxx Xxxxxx, 0xx Xxxxx Xxxx, Xxx
Xxxx, Xxx Xxxx, 00000.
WITNESSETH:
WHEREAS, the Company and the Trustee entered into an Indenture, dated
as of August 17, 1998, as heretofore amended (the "Original Indenture"),
pursuant to which one or more series of debt securities of the Company (the
"Securities") may be issued from time to time; and
WHEREAS, Section 201 of the Original Indenture permits the terms of any
series of Securities to be established in an indenture supplemental to the
Original Indenture; and
WHEREAS, Section 901(7) of the Original Indenture provides that a
supplemental indenture may be entered into by the Company and the Trustee
without the consent of any Holders of the Securities to establish the form and
terms of the Securities of any series; and
WHEREAS, the Company has requested the Trustee to join with it in the
execution and delivery of this Ninth Supplemental Indenture in order to
supplement and amend the Original Indenture by, among other things, establishing
the form and terms of one series of Securities to be known as the Company's
"7.50 % Notes Due 2010" (the "Notes") and amending and adding certain provisions
thereof for the benefit of the Holders of the Notes; and
WHEREAS, the Company and the Trustee desire to enter into this Ninth
Supplemental Indenture for the purposes set forth in Sections 201 and 901 of the
Original Indenture as referred to above; and
WHEREAS, the Company has furnished the Trustee with a Board Resolution
authorizing the execution of this Ninth Supplemental Indenture; and
WHEREAS, all things necessary to make this Ninth Supplemental Indenture
a valid agreement of the Company and the Trustee and a valid supplement to the
Original Indenture have been done,
NOW, THEREFORE, THIS NINTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
to be issued hereunder by holders thereof, the Company and the Trustee mutually
covenant and agree, for the equal and proportionate benefit of the respective
holders from time to time of the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS
All capitalized terms that are used herein and not otherwise defined
herein shall have the meanings assigned to them in the Original Indenture. The
Original Indenture together with this Ninth Supplemental Indenture are
hereinafter sometimes collectively referred to as the "Indenture."
"Adjusted Treasury Rate" means, with respect to any redemption date:
(i) the yield, under the heading which represents the average
for the immediately preceding week, appearing in the most recently
published statistical release designated "H.15(519)" or any successor
publication which is published weekly by the Board of Governors of the
Federal Reserve System and which establishes yields on actively traded
United States Treasury securities adjusted to constant maturity under
the caption "Treasury Constant Maturities," for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is
within three months before or after the Remaining Life, as defined
below, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue will be determined and
the Adjusted Treasury Rate will be interpolated or extrapolated from
such yields on a straight line basis, rounding to the nearest month);
or
(ii) if such release (or any successor release) is not
published during the week preceding the calculation date or does not
contain such yields, the rate per annum equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed
as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
The Adjusted Treasury Rate will be calculated on the third Business Day
preceding the redemption date.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that beneficial ownership of 10% or more of the
Voting Stock of a Person will be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" have correlative meanings.
"Board of Directors" means:
(i) with respect to a corporation, the board of directors of
the corporation;
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(ii) with respect to a partnership, the board of directors of
the general partner of the partnership; and
(iii) with respect to any other Person, the board or committee
of such Person serving a similar function.
"Business Day" shall mean any day other than a Saturday or Sunday that
is neither a legal holiday nor a day on which banking institutions are
authorized or required by law or regulations to close in the City of New York.
"Capital Lease Obligation" of a Person means any obligation that is
required to be classified and accounted for as a capital lease on the face of a
balance sheet of such Person prepared in accordance with GAAP; the amount of
such obligation shall be the capitalized amount thereof, determined in
accordance with GAAP; the stated maturity thereof shall be the date of the last
payment of rent or any other amount due under such lease prior to the first date
upon which such lease may be terminated by the lessee without payment of a
penalty; and such obligation shall be deemed secured by a Lien on any property
or assets to which such lease relates.
"Capital Stock" means any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of or interests
in (however designated) corporate stock, including any Preferred Stock or letter
stock; provided, that Hybrid Preferred Securities are not considered Capital
Stock for purposes of this definition.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes to be redeemed that would be used, at the time
of selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of such Notes (the "Remaining Life").
"Comparable Treasury Price" means (1) the average of five Reference
Treasury Dealer Quotations for such redemption date, after excluding the highest
and lowest Reference Treasury Dealer Quotations, or (2) if the Independent
Investment Banker obtains fewer than five such Reference Treasury Dealer
Quotations, the average of all such quotations.
"Consolidated Current Liabilities" means, for any period, the aggregate
amount of liabilities of the Company and its Restricted Subsidiaries which may
properly be classified as current liabilities (including taxes accrued as
estimated), after (1) eliminating all inter-company items between the Company
and any Restricted Subsidiary and (2) deducting all current maturities of
long-term Indebtedness, all as determined in accordance with GAAP.
"Consolidated Net Tangible Assets" means, for any period, the total
amount of assets (less accumulated depreciation or amortization, allowances for
doubtful receivables, other applicable reserves and other properly deductible
items) as set forth on the most recently available quarterly or annual
consolidated balance sheet of the Company and its Restricted Subsidiaries,
determined on a consolidated basis in accordance with GAAP, and after giving
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effect to purchase accounting and after deducting therefrom, to the extent
otherwise included, the amounts of:
(i) Consolidated Current Liabilities;
(ii) minority interests in Consolidated Subsidiaries held by
Persons other than the Company or a Restricted Subsidiary;
(iii) excess of cost over fair value of assets of businesses
acquired, as determined in good faith by the Board of Directors as
evidenced by Board resolutions;
(iv) any revaluation or other write-up in value of assets
subsequent to December 31, 2002, as a result of a change in the method
of valuation in accordance with GAAP;
(v) unamortized debt discount and expenses and other
unamortized deferred charges, goodwill, patents, trademarks, service
marks, trade names, copyrights, licenses organization or developmental
expenses and other intangible items;
(vi) treasury stock; and
(vii) any cash set apart and held in a sinking or other
analogous fund established for the purpose of redemption or other
retirement of Capital Stock to the extent such obligation is not
reflected in Consolidated Current Liabilities.
"Consolidated Subsidiary" means, any Subsidiary whose accounts are or
are required to be consolidated with the accounts of the Company in accordance
with GAAP.
"Credit Facilities" means, one or more debt facilities or commercial
paper facilities, in each case with banks or other institutional lenders
providing for revolving credit loans, term loans, receivables financing
(including through the sale of receivables to such lenders or to special purpose
entities formed to borrow from such lenders against such receivables) or letters
of credit, in each case, as amended, restated, modified, supplemented, renewed,
refunded, restructured, replaced or refinanced in whole or in part from time to
time.
"Depositary" shall mean the Depository Trust Company or any successor
depository.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the issuance date of the Notes.
"Hybrid Preferred Securities" means any preferred securities issued by
a Hybrid Preferred Securities Subsidiary, where such preferred securities have
the following characteristics:
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(i) such Hybrid Preferred Securities Subsidiary lends
substantially all of the proceeds from the issuance of such preferred
securities to the Company in exchange for subordinated debt issued by
the Company or lends substantially all of the proceeds from the
issuance of such preferred securities to a second Hybrid Preferred
Securities Subsidiary, which in turn lends substantially all of the
proceeds from the issuance of its preferred securities to the Company
in exchange for subordinated debt issued by the Company;
(ii) such preferred securities contain terms providing for the
deferral of distributions corresponding to provisions providing for the
deferral of interest payments on such subordinated debt; and
(iii) the Company makes periodic interest payments on such
subordinated debt, which interest payments are in turn used by the
Hybrid Preferred Securities Subsidiary or Hybrid Preferred Securities
Subsidiaries to make corresponding payments to the holders of the
Hybrid Preferred Securities.
"Hybrid Preferred Securities Subsidiary" means
(i) any business trust:
(A) all of the common equity interest of which is
owned (either directly or indirectly through one or more
wholly-owned Subsidiaries of the Company) at all times by the
Company or whose sole depositor is another Hybrid Preferred
Securities Subsidiary;
(B) that has been formed for the purpose of issuing
Hybrid Preferred Securities; and
(C) substantially all of the assets of which consist
at all times solely of subordinated debt issued by the Company
or the preferred securities of a second Hybrid Preferred
Securities Subsidiary and payments made from time to time on
such subordinated debt or preferred securities, as the case
may be; or
(ii) any limited liability company (or similar entity):
(A) all of the common equity interest of which is
owned (either directly or indirectly through one or more
wholly-owned Subsidiaries of the Company) at all times by the
Company;
(B) that has been formed for the purpose of issuing
Hybrid Preferred Securities; and
(C) substantially all of the assets of which consist
at all times solely of subordinated debt issued by the Company
and payments made from time to time on such subordinated debt.
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"Indebtedness" of any Person means, without duplication:
(i) the principal of and premium (if any) in respect of (A)
indebtedness of such Person for money borrowed and (B) indebtedness
evidenced by notes, debentures, bonds or other similar instruments for
the payment of which such Person is responsible or liable;
(ii) all Capital Lease Obligations of such Person;
(iii) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations
and all obligations under any title retention agreement (but excluding
trade accounts payable arising in the ordinary course of business);
(iv) all obligations of such Person for the reimbursement of
any obligor on any letter of credit, bankers' acceptance or similar
credit transaction (other than obligations with respect to letters of
credit securing obligations (other than obligations described in
clauses (i) - (iii) above) entered into in the ordinary course of
business of such Person to the extent such letters of credit are not
drawn upon or, if and to the extent drawn upon, such drawing is
reimbursed no later than the third Business Day following receipt by
such Person of a demand for reimbursement following payment on the
letter of credit);
(v) all obligations of the type referred to in clauses (i)
through (iv) above of other Persons and all dividends of other Persons
for the payment of which, in either case, such Person is responsible or
liable as obligor, guarantor or otherwise; and
(vi) all obligations of the type referred to in clauses (i)
through (v) above of other Persons secured by any Lien on any property
or asset of such Person (whether or not such obligation is assumed by
such Person), the amount of such obligation being deemed to be the
lesser of the value of such property or assets and the amount of the
obligation so secured.
"Independent Investment Banker" means any of Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, Citigroup Global Markets Inc., Xxxxxx Xxxxxxx & Co.
Incorporated or X.X. Xxxxxx Securities Inc. or any of their respective
successors, as designated by the Company, or if those firms are unwilling or
unable to serve as such, an independent investment and banking institution of
national standing appointed by the Company.
"Interest Payment Date" shall have the meaning set forth in Section
204(a) hereof.
"Interest Rate" shall have the meaning set forth in Section 204(a)
hereof.
"Lien" means any lien, mortgage, pledge, security interest, conditional
sale, title retention agreement or other charge or encumbrance of any kind.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor
thereto which is a nationally recognized statistical rating organization, or if
such entity shall cease to rate the Notes
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or shall cease to exist and there shall be no such successor thereto, any other
nationally recognized statistical rating organization selected by the Company
which is acceptable to the trustee.
"Non-Recourse Debt" means Indebtedness:
(i) as to which neither the Company nor any of its Restricted
Subsidiaries (A) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute
Indebtedness), (B) is directly or indirectly liable as a guarantor or
otherwise, or (C) constitutes the lender;
(ii) no default with respect to which (including any rights
that the holders of the Indebtedness may have to take enforcement
action against an Unrestricted Subsidiary) would permit upon notice,
lapse of time or both any holder of any other Indebtedness (other than
the Notes or any Credit Facility) of the Company or any of its
Restricted Subsidiaries to declare a default on such other Indebtedness
or cause the payment of the Indebtedness to be accelerated or payable
prior to its stated maturity; and
(iii) as to which the lenders have been notified in writing
that they will not have any recourse to the stock or assets of the
Company or any of its Restricted Subsidiaries.
"Original Issue Date" shall mean the date upon which the Notes are
initially issued by the Company, such date to be set forth on the face of the
Note.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
of any government.
"Preferred Stock" as applied to the Capital Stock of any corporation,
means Capital Stock of any class or classes (however designated) that is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation; provided, that Hybrid Preferred Securities are not considered
Preferred Stock for purposes of this definition.
"Record Date" shall mean the fifteenth calendar day (whether or not a
Business Day) immediately preceding the related Interest Payment Date. The
Record Date shall constitute the Regular Record Date for purposes of the
Original Indenture.
"Reference Treasury Dealer" means:
(i) each of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Citigroup Global Markets Inc., Xxxxxx Xxxxxxx & Co. Incorporated, X.X.
Xxxxxx Securities Inc. and any of their respective successors;
provided that, if any such Reference Treasury Dealer ceases to be a
primary U.S. Government securities dealer in New York City (a
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"Primary Treasury Dealer"), the Company will substitute another
Primary Treasury Dealer; and
(ii) up to one other Primary Treasury Dealers selected by the
Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Independent Investment Banker, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Independent Investment Banker at 5:00
p.m., New York City time, on the third Business Day preceding such redemption
date.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"Standard & Poor's" shall mean Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc., and any successor thereto which is
a nationally recognized statistical rating organization, or if such entity shall
cease to rate the Notes or shall cease to exist and there shall be no such
successor thereto, any other nationally recognized statistical rating
organization selected by the Company which is acceptable to the trustee.
"Stated Maturity Date" shall have the meaning set forth in Section
204(a) hereof.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Tampa Electric" means Tampa Electric Company, a Florida corporation
and wholly-owned subsidiary of the Company.
"TPS" means TECO Power Services Corporation, a Florida corporation and
wholly-owned subsidiary of the Company.
"Unrestricted Subsidiary" means each of TPS and its Subsidiaries and
any other Subsidiary of the Company (other than any Subsidiary existing on the
issuance date of the Notes or any successor to any of them) that is designated
by the Board of Directors as an Unrestricted Subsidiary pursuant to a Board
Resolution, but only to the extent that such Subsidiary being designated as an
Unrestricted Subsidiary:
(i) has no Indebtedness other than Non-Recourse Debt;
(ii) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the
Company unless the terms of any such agreement, contract, arrangement
or understanding are no less favorable to the Company
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or such Restricted Subsidiary than those that might be obtained at the
time from Persons who are not Affiliates of the Company;
(iii) is a Person with respect to which neither the Company
nor any of its Restricted Subsidiaries has any direct or indirect
obligation (a) to subscribe for additional Capital Stock or (b) to
maintain or preserve such Person's financial condition or to cause such
Person to achieve any specified levels of operating results;
(iv) has not guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of the Company or any of
its Restricted Subsidiaries; and
(v) has at least one director on its Board of Directors that
is not a director or executive officer of the Company or any of its
Restricted Subsidiaries and has at least one executive officer that is
not a director or executive officer of the Company or any of its
Restricted Subsidiaries.
"Voting Stock" means securities of any class or classes the holders of
which are ordinarily, in the absence of contingencies, entitled to vote for
corporate directors (or persons performing similar functions).
SECTION 102. SECTION REFERENCES
Each reference to a particular section set forth in this Ninth
Supplemental Indenture shall, unless the context otherwise requires, refer to
this Ninth Supplemental Indenture.
ARTICLE TWO
DESIGNATION AND TERMS OF THE NOTES
SECTION 201. ESTABLISHMENT OF SERIES
There is hereby created a series of Securities to be known and
designated as the "7.50 % Notes Due 2010" (the "Notes"), which shall rank
equally with each other and all other unsecured and unsubordinated indebtedness
of the Company. For the purposes of the Original Indenture, the Notes shall
constitute a single series of Securities.
SECTION 202. VARIATIONS IN TERMS OF NOTES
Subject to the terms and conditions set forth in the Original Indenture
and in this Ninth Supplemental Indenture, the terms of any particular Note may
vary from the terms of any other Note as contemplated by Section 301 of the
Original Indenture, and the terms for a particular Note will be set forth in
such Note as delivered to the Trustee or an Authenticating Agent for
authentication pursuant to Section 303 of the Original Indenture.
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SECTION 203. AMOUNT AND DENOMINATIONS; THE DEPOSITARY
The initial principal amount of Notes that may be issued under this
Ninth Supplemental Indenture shall be $300,000,000. Additional Notes may be
issued under this Ninth Supplemental Indenture in unlimited principal amounts as
permitted by the Original Indenture. The authorized denominations of Notes shall
be $1,000 or integral multiples of $1,000 in excess thereof.
The Notes shall be issuable only in fully registered form, without
coupons, and will initially be registered in the name of the Depository or its
nominee who is hereby designated as "U.S. Depositary" under the Original
Indenture.
SECTION 204. INTEREST RATES AND INTEREST PAYMENT DATES
(a) Interest Rate. The Notes shall bear interest at the annual rate of
7.50% (the "Interest Rate") from the Original Issue Date to June 15, 2010 (the
"Stated Maturity Date"). Interest on the Notes will be payable semi-annually on
June 15 and December 15 of each year (each, an "Interest Payment Date"),
commencing on December 15, 2003. Such interest will be payable to the holder
thereof as of the related Record Date.
(b) Computation of Interest. The amount of interest payable for any
period will be computed on the basis of a year of 360 days consisting of twelve
30-day months. Except for the effect of any adjustment in the Interest Payment
Date as provided in the following sentence, the amount of interest payable for
any period shorter than a full six-month period for which interest is computed,
will be computed on the basis of the actual number of days elapsed in such a
180-day period. If any Interest Payment Date would otherwise be a day that is
not a Business Day, the payment required to be made on such Interest Payment
Date will be postponed to the next succeeding Business Day, and no interest will
accrue on such payment for the period from and after such Interest Payment Date
to the date of such payment on the next succeeding Business Day, except that, if
such Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case with the same force
and effect as if made on such date.
SECTION 205. FORM AND OTHER TERMS OF THE NOTES
(a) Attached hereto as Exhibit A is the form of Note, which form is
hereby established as the form in which Notes may be issued, and which shall be
completed with the series designation, stated maturity, interest rate and CUSIP
number applicable to the Notes upon such issuance.
(b) Subject to (a) above, any Note may be issued in such other form as
may be provided by, or not inconsistent with, the terms of the Original
Indenture and this Ninth Supplemental Indenture.
SECTION 206. AUTHENTICATION AND DELIVERY
As provided in and pursuant to Section 303 of the Original Indenture,
each time that the Company delivers Notes to the Trustee or Authenticating Agent
for authentication after the
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initial issuance of Notes under this Indenture, the Company shall deliver a
Supplemental Company Order in the form of Exhibit B to this Ninth Supplemental
Indenture for the authentication and delivery of such Notes and the Trustee or
such Authenticating Agent shall authenticate and deliver such Notes.
SECTION 207. REDEMPTION; NO SINKING FUND
The Notes are subject to redemption, in whole or in part, at any time,
and at the option of the Company, at a redemption price equal to the greater of:
(i) 100% of the principal amount of Notes then outstanding to be
redeemed, or
(ii) the sum of the present values of the remaining scheduled
payments of principal and interest on the Notes then outstanding to be
redeemed (not including any portion of such payments of interest
accrued as of the redemption date) discounted to the redemption date
on a semiannual basis (computed based on a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate, plus 50 basis
points (0.50%), as calculated by an Independent Investment Banker,
plus, in both of the above cases, accrued and unpaid interest thereon to the
redemption date.
The Company will mail a notice of redemption at least 30 days but no
more than 60 days before the redemption date to each Holder of Notes to be
redeemed. If the Company elects to partially redeem Notes, the Trustee will
select in a fair and appropriate manner the Notes to be redeemed.
Unless the Company defaults in payment of the redemption price, on and
after the redemption date, interest will cease to accrue on the Notes or
portions thereof called for redemption.
The Notes are not entitled to the benefit of any sinking fund or
analogous provision.
ARTICLE THREE
RESTRICTIVE COVENANT
SECTION 301. APPLICABILITY OF RESTRICTIVE COVENANT
The provisions of this Article Three shall be applicable as long as any
of the Notes are outstanding. The covenant contained in Section 303 shall apply
only when the Notes are rated below BBB- (or an equivalent rating) by Standard &
Poor's or below Baa3 (or an equivalent rating) by Moody's.
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SECTION 302. DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES
The Board of Directors may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary if that designation would not cause an Event of Default
or an event that with notice or the passage of time or both would constitute an
Event of Default; provided that in no event will any Restricted Subsidiary
existing on the issuance date of the Notes or any substantial portion of any of
such Restricted Subsidiary's businesses be transferred to or held by an
Unrestricted Subsidiary. The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary if the designation would not cause an
Event of Default or an event that with notice or the passage of time or both
would constitute an Event of Default.
Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary will be evidenced to the Trustee by filing with the Trustee a
certified copy of the resolution of the Board of Directors of the Company giving
effect to such designation and an officers' certificate certifying that such
designation complied with the conditions contained in the definition of
"Unrestricted Subsidiary" and was permitted by this Section 302. If, at any
time, any Unrestricted Subsidiary would fail to meet the requirements as an
Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted
Subsidiary for purposes of the Indenture.
SECTION 303. LIMITATION ON CERTAIN LIENS
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any of its property of any character, including without limitation
any shares of Capital Stock of Tampa Electric, without making effective
provision whereby the Notes shall be (so long as any such other creditor shall
be so secured) equally and ratably secured. The foregoing restrictions shall not
apply to:
(i) Liens securing Indebtedness of the Company or its Restricted
Subsidiaries, provided that on the date such Liens are created, and
after giving effect to such Indebtedness, the aggregate principal
amount at maturity of all the secured Indebtedness of the Company at
such date shall not exceed 5% of Consolidated Net Tangible Assets;
(ii) Liens for taxes, assessments or governmental charges or
levies to the extent not past due;
(iii) pledges or deposits to secure obligations under xxxxxxx'x
compensation laws or similar legislation and other statutory
obligations of the Company;
(iv) Liens imposed by law, such as materialman's, mechanic's,
workmen's and other similar liens;
(v) purchase money Liens upon or in property acquired and held by
the Company in the ordinary course of business to secure the purchase
price of such property or to secure Indebtedness incurred solely for
the purpose of financing the acquisition of any such property to be
subject to such Liens, or Liens existing on any such property at the
time of acquisition, or extensions, renewals or replacements of any of
the foregoing for the same or a lesser amount, provided that no such
Lien shall extend to or cover any
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property other than the property being acquired and no such extension,
renewal or replacement shall extend to or cover property not
theretofore subject to the Lien being extended, renewed or replaced;
and
(vi) Liens incurred by Tampa Electric that are not prohibited by
applicable legal and regulatory requirements, including without
limitation the rules and regulations of the Florida Public Service
Commission.
ARTICLE FOUR
MISCELLANEOUS
SECTION 401. EFFECT ON ORIGINAL INDENTURE
The Ninth Supplemental Indenture is a supplement to the Original
Indenture. As supplemented by this Ninth Supplemental Indenture, the Original
Indenture is in all respects ratified, approved and confirmed, and the Original
Indenture and this Ninth Supplemental Indenture shall together constitute one
and the same instrument.
SECTION 402. COUNTERPARTS
This Ninth Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute one and the same instrument.
SECTION 403. RECITALS
The recitals contained herein shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this Ninth
Supplemental Indenture.
SECTION 404. GOVERNING LAW
This Ninth Supplemental Indenture shall be governed by and construed in
accordance with the laws of the jurisdiction that govern the Original Indenture
and its construction.
[The balance of this page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Ninth
Supplemental Indenture to be duly executed as of the date and year first written
above.
TECO ENERGY, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President - Treasury
and Risk Management and Treasurer
THE BANK OF NEW YORK, AS TRUSTEE
By: /s/ Xxxx XxXxxxxx
----------------------------------------
Name: Xxxx XxXxxxxx
Title: Vice President
14
EXHIBIT A
FORM OF NOTE
CUSIP NO.: 872375 AK 6 PRINCIPAL AMOUNT: $_______
REGISTERED NO. __
TECO ENERGY, INC.
7.50% Notes Due 2010
|X| Check this box if the Note is a Global Note.
Applicable if the Note is a Global Note:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
This Note is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of Cede & Co., or such
other nominee of The Depository Trust Company, a New York corporation, or any
successor depositary ("Depositary"), as requested by an authorized
representative of the Depositary. This Note is exchangeable for Notes registered
in the name of a person other than the Depositary or its nominee only in the
limited circumstances described in the Indenture and may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary.
ORIGINAL ISSUE DATE: INTEREST PAYMENT DATES: June 15 and SINKING FUND: N/A
June 13, 2003 December 15 of each year, commencing
December 15, 2003. YIELD TO MATURITY: N/A
ISSUE PRICE: 98.932% (as a
percentage of principal amount) SPECIFIED CURRENCY: U.S. dollars REDEMPTION: Redeemable in whole or
(if other than U.S. dollars): N/A in part, at the Company's option,
STATED MATURITY: from time to time at the redemption
June 15, 2010 AUTHORIZED DENOMINATIONS: N/A prices described on the reverse of
(Only applicable if Specified this Note.
INTEREST RATE: 7.50% per annum. Currency is other than U.S. dollars)
REMARKETING PROVISIONS: N/A
DEPOSITARY: The Depository Trust
Company
TECO ENERGY, INC., a corporation duly organized and existing under the
laws of the State of Florida (herein called the "Company," which term includes
any successor Corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum set forth on the face of this Note on the Stated Maturity, upon
the presentation and surrender hereof at the principal corporate trust office of
The Bank of New York, or its successor in trust (the "Trustee") or such other
office as the Trustee has designated in writing, and to pay interest on the
unpaid principal balance hereof at a rate per annum (computed based on a 360-day
year consisting of twelve 30-day months) equal to the Interest Rate set forth on
the face of this Note for the period from the Original Issue Date to, but
excluding, the Stated Maturity.
Interest will be payable on the Interest Payment Dates to the Person in
whose name this Note is registered at the close of business on the related
Record Date, which is the fifteenth calendar day (whether or not a Business Day)
immediately preceding the related Interest Payment Date. In each case, payments
shall be made in accordance with the provisions hereof, until the principal
hereof is paid or duly made available for payment.
Interest on this Note will be computed on the basis of a year of 360
days consisting of twelve 30-day months.
Payment of the principal of (and premium, if any) and any such interest
on this Note shall be made in immediately available funds at the office or
agency of the Company maintained for that purpose in the City of New York in the
State of New York, in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
2
IN WITNESS WHEREOF, TECO ENERGY, INC. has caused this instrument to be duly
executed.
Dated: _____________
TRUSTEE'S CERTIFICATE TECO ENERGY, INC.
OF AUTHENTICATION
This is one of the series
designated therein referred By: ______________________________
to in the within-mentioned Name:
Indenture. Title:
THE BANK OF NEW YORK,
as Authenticating Agent for the Trustee
By: __________________________________
Authorized signatory
(REVERSE OF NOTE)
TECO ENERGY, INC.
7.50% Notes Due 2010
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Notes"), issued and to be issued under an Indenture dated as
of August 17, 1998, as supplemented by the Ninth Supplemental Indenture, dated
as of June 10, 2003 (as such has been or shall be amended or supplemented, the
"Indenture"), between the Company and The Bank of New York, as trustee (the
"Trustee", which term includes any successor Trustee under the Indenture), to
which Indenture reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Notes and of the terms upon which the Notes
are, and are to be, authenticated and delivered. This Note is one of the
securities of the series designated on the face hereof.
DEFINITIONS
The following terms, as used herein, have the following meanings unless the
context or use clearly indicates another or different meaning or intent:
"Adjusted Treasury Rate" means, with respect to any redemption date:
(i) the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published
statistical release designated "H.15(519)" or any successor
publication which is published weekly by the Board of Governors of the
Federal Reserve System and which establishes yields on actively traded
United States Treasury securities adjusted to constant maturity under
the caption "Treasury Constant Maturities," for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is
within three months before or after the Remaining Life, as defined
below, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue will be determined and
the Adjusted Treasury Rate will be interpolated or extrapolated from
such yields on a straight line basis, rounding to the nearest month);
or
(ii) if such release (or any successor release) is not published during the
week preceding the calculation date or does not contain such yields,
the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, calculated using a price
for the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such
redemption date.
The Adjusted Treasury Rate will be calculated on the third Business Day
preceding the redemption date.
4
"Business Day" shall mean any day other than a Saturday or Sunday that is
neither a legal holiday nor a day on which banking institutions are authorized
or required by law or regulations to close in the City of New York.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes to be redeemed that would be used, at the time
of selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of such Notes (the "Remaining Life").
"Comparable Treasury Price" means (1) the average of five Reference
Treasury Dealer Quotations for such redemption date, after excluding the highest
and lowest Reference Treasury Dealer Quotations, or (2) if an Independent
Investment Banker obtains fewer than five such Reference Treasury Dealer
Quotations, the average of all such quotations.
"Depositary" shall mean The Depository Trust Company or any successor
depositary.
"Independent Investment Banker" means any of Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated, Citigroup Global Markets Inc., Xxxxxx Xxxxxxx & Co.
Incorporated or X.X. Xxxxxx Securities Inc. or any of their respective
successors, as designated by the Company, or if those firms are unwilling or
unable to serve as such, an independent investment and banking institution of
national standing appointed by the Company.
"Interest Payment Date" shall mean the date on which interest on this Note
is paid, which date(s) are set forth on the face of this Note.
"Reference Treasury Dealer" means:
(i) each of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Citigroup
Global Markets Inc., Xxxxxx Xxxxxxx & Co. Incorporated, X.X. Xxxxxx
Securities Inc. and any of their respective successors; provided that,
if any such Reference Treasury Dealer ceases to be a primary U.S.
Government securities dealer in New York City ("Primary Treasury
Dealer"), the Company will substitute another Primary Treasury Dealer;
and
(ii) up to one other Primary Treasury Dealer selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
an Independent Investment Banker, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Independent Investment Banker at 5:00 p.m., New York
City time, on the third Business Day preceding such redemption date.
INTEREST RATE
This Note will bear interest at the rate per annum (computed based on a
360-day year consisting of twelve 30-day months) identified on the face of this
Note.
5
OPTIONAL REDEMPTION
The Notes are subject to redemption, in whole or in part, at any time, and
at the option of the Company, at a redemption price equal to the greater of:
(i) 100% of the principal amount of Notes then outstanding to be redeemed,
or
(ii) the sum of the present values of the remaining scheduled payments of
principal and interest on the Notes then outstanding to be redeemed
(not including any portion of such payments of interest accrued as of
the redemption date) discounted to the redemption date on a semiannual
basis (computed based on a 360-day year consisting of twelve 30-day
months) at the Adjusted Treasury Rate, plus 50 basis points (0.50%),
as calculated by an Independent Investment Banker,
plus, in both of the above cases, accrued and unpaid interest thereon to the
redemption date.
The Company will mail a notice of redemption at least 30 days but no more
than 60 days before the redemption date to each Holder of Notes to be redeemed.
If the Company elects to partially redeem the Notes, the Trustee will select in
a fair and appropriate manner the Notes to be redeemed.
Unless the Company defaults in payment of the redemption price, on and
after the redemption date, interest will cease to accrue on the Notes or
portions thereof called for redemption.
The Notes are not entitled to the benefit of any sinking fund or analogous
provision.
TRANSFER OR EXCHANGE
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registerable in the Security Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Company in any place where the principal of (and premium, if any) and
interest on this Note are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes of this series and of like tenor,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons and, except
for such Notes issued in book-entry form, only in denominations of $1,000 and
any integral multiple of $1,000. As provided in the Indenture and subject to
certain limitations therein set forth, this Note is exchangeable for a like
aggregate principal amount of Notes of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
6
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company or the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
OTHER PROVISIONS
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected and of the Holders of 66 2/3%
in principal amount of the Securities at the time Outstanding of all series to
be affected. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. To the extent
permitted by law, any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Note at the times, place and rate, and in the coin or currency,
herein prescribed.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
This Note shall be governed by and construed in accordance with the laws of
The State of New York.
7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship Under Uniform Gifts
to Minors Act and not as tenants in common _______________________
(State)
UNIF GIFT MIN ACT--__________ CUSTODIAN __________
(Cust) (Minor)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please Insert Social Security or
Other Identifying Number of Assignee
------------------------------------
------------------------------------
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PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
--------------------------------------------------------------------------------
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the within Security of TECO ENERGY, INC. and does hereby irrevocably constitute
and appoint __________________________________________________ attorney to
transfer said Security on the books of the Company, with full power of
substitution in the premises.
Dated:
------------------------ --------------------------------------
--------------------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatsoever.
8
EXHIBIT B
TECO ENERGY, INC.
7.50% NOTES DUE 2010
SUPPLEMENTAL COMPANY ORDER
Pursuant to Section 206 of Article Two of the Ninth Supplemental Indenture,
dated as of June 10, 2003, to the Indenture, dated as of August 17, 1998, as
amended, you are instructed to prepare and authenticate a Note, of the series
identified above, in the principal amount of $______________. The Note is being
delivered in exchange for issued and outstanding Notes of the series identified
above.
IN WITNESS WHEREOF, I have hereunto set my hand this ___ day of ________,
____.
TECO ENERGY, INC.
By:
-------------------------------------
Name:
Title:
Exhibit B--1
