EXHIBIT 1.2
CONFORMED COPY
TECO ENERGY, INC.
$200,000,000
Medium-Term Note Program
Due from 9 Months to 40 Years from Date of Issue
AGENCY AGREEMENT
September 11, 1998
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Citicorp Securities, Inc.
000 Xxxx Xxxxxx
0xx Xxxxx, Xxxx 0
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentleman:
TECO Energy, Inc., a Florida corporation (the "Company"), confirms
its agreement with each of you with respect to the issue and sale from
time to time by the Company of up to $200,000,000 (or the equivalent
thereof in one or more foreign currencies or composite currencies)
aggregate initial public offering price of its medium-term notes due from
9 months to 40 years from date of issue (the "Notes"). The Notes will be
issued under an Indenture dated as of August 17, 1998 (the "Base
Indenture") between the Company and The Bank of New York, as Trustee (the
"Trustee"), and will have the maturities, interest rates, redemption
provisions, if any, and other terms as set forth in indentures
supplemental to the Base Indenture (each, a "Supplemental Indenture," the
Base Indenture as amended by such Supplemental Indentures referred to
herein as the "Indenture").
The Company hereby appoints Xxxxxx Xxxxxxx & Co. Incorporated and
Citicorp Securities, Inc. (individually an "Agent" and collectively the
"Agents") as its agents, subject to Section 8, Section 11 and the
Company's right to sell Notes directly to investors without the use of
agents for the purpose of soliciting and receiving offers to purchase
Notes from the Company by others and, on the basis of the representations
and warranties herein contained, but subject to the terms and conditions
herein set forth, each Agent agrees to use reasonable efforts to solicit
and receive offers to purchase Notes upon terms acceptable to the Company
at such times and in such amounts as the Company shall from time to time
specify. In addition, any Agent may also purchase Notes as principal
pursuant to the terms of a purchase agreement relating to such sale (a
"Purchase Agreement") in accordance with the provisions of Section 2(b)
hereof.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement, including a prospectus,
relating to the Notes. Such registration statement, including the
exhibits thereto and any amendments thereto, is hereinafter referred to
as the "Registration Statement." The Company proposes to file with the
Commission from time to time, pursuant to Rule 424 under the Securities
Act of 1933, as amended (the "Securities Act"), supplements to the
prospectus included in the Registration Statement that will describe
certain terms of the Notes. The prospectus in the form in which it
appears in the Registration Statement is hereinafter referred to as the
"Base Prospectus." The term "Prospectus" means the Base Prospectus
together with the prospectus supplement or supplements (each a
"Prospectus Supplement") specifically relating to Notes, as filed with,
or transmitted for filing to, the Commission pursuant to Rule 424. As
used herein, the terms "Base Prospectus" and "Prospectus" shall include
in each case the documents, if any, incorporated by reference therein.
The terms "supplement," "amendment" and "amend" as used herein shall
include all documents deemed to be incorporated by reference in the
Prospectus that are filed subsequent to the date of the Base Prospectus
by the Company with the Commission pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
1. Representations and Warranties. The Company represents and
warrants to and agrees with each Agent as of the Commencement Date (as
defined below), as of each date on which an Agent solicits offers to
purchase Notes from the Company, as of each date on which the Company
accepts an offer to purchase Notes (including any purchase by an Agent
pursuant to a Purchase Agreement), as of each date the Company issues and
delivers Notes, and as of each date the Registration Statement or the
Base Prospectus is amended or supplemented, as follows (it being
understood that such representations, warranties and agreements shall be
deemed to relate to the Registration Statement, the Base Prospectus and
the Prospectus, each as amended or supplemented to each such date):
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is
in effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus, on the
date it was or is filed with the Commission, (A) complied or will
comply in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder and
(B) did not contain and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(ii) each part of the Registration Statement, when such part became
effective, did not contain and each such part, as amended or
supplemented, if applicable, when so amended or supplemented, will
not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading, (iii) the Registration
Statement, on the date it was declared effective, and the
Prospectus, as of the date of the Base Prospectus, complied and, as
amended or supplemented, if applicable, on the date of such
Amendment or Supplement, will comply in all material respects with
the Securities Act and the applicable rules and regulations of the
Commission thereunder, and (iv) the Prospectus does not contain and,
as amended or supplemented, if applicable, on the date of such
Amendment or Supplement, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that (1) the
representations and warranties set forth in this paragraph do not
apply (x) to statements or omissions in the Registration Statement
or the Prospectus based upon information relating to an Agent
furnished to the Company in writing by such Agent expressly for use
therein or (y) to that part of the Registration Statement that
constitutes the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), of
the Trustee and (2) the representations and warranties set forth in
clauses 1(b)(ii) and 1(b)(iv) above, when made as of the
Commencement Date or as of any date on which an Agent solicits
offers to purchase Notes from the Company or on which the Company
accepts an offer to purchase Notes, shall be deemed not to cover
information concerning an offering of particular Notes to the extent
such information will be set forth in a supplement to the Base
Prospectus;
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
State of Florida, and has the power and authority (corporate and
otherwise) to own its property and to conduct its business as
described in the Prospectus;
(d) Each of the Company's "significant subsidiaries" (as
defined in Rule 1-02(w) of Regulation S-X of the Exchange
Act) is a corporation duly incorporated and validly existing in good
standing under the laws of the jurisdiction of its incorporation,
and has full power and authority (corporate and other) to own its
properties and to conduct its business as described in the
Registration Statement and Prospectus;
(e) All of the issued shares of capital stock of each of the
Company's significant subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable and are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances and claims.
(f) Each of the Company and its significant subsidiaries is
duly qualified as a foreign corporation in all jurisdictions where
it owns or leases substantial real properties or in which the
conduct of its business requires qualification as a foreign
corporation and in which the failure to so qualify could have a
material adverse effect on the business, financial condition or
prospects of the Company and its subsidiaries taken as a whole;
(g) The Company has full power and lawful authority to
authorize, execute and deliver this Agreement and any applicable
Purchase Agreement (as hereinafter defined) on the terms and
conditions set forth herein and therein and the Agreement and any
applicable Purchase Agreement have been duly authorized, executed
and delivered by the Company;
(h) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms;
(i) The Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the purchasers thereof, will be
entitled to the benefits of the Indenture and will be valid and
binding obligations of the Company;
(j) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Notes, the Indenture and any applicable Purchase Agreement will
not result in a breach of or constitute a default under nor will it
violate the provisions of any indenture, mortgage, deed of trust,
agreement, or other instrument to which the Company is a party or by
which it or any of its property is bound nor will it violate the
provisions of the Restated Articles of Incorporation or by-laws of
the Company or any statute, or any order, rule or regulation, to the
extent applicable to the Company, of any court or other governmental
or regulatory body and no consent, approval, authorization or order
of, or qualification with, any governmental or regulatory body,
including the Florida Public Service Commission, is required for the
performance by the Company of its obligations under this Agreement,
the Notes, the Indenture and any applicable Purchase Agreement,
except, as have been obtained and except such as may be required by
the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Notes;
(k) There has not occurred any material adverse change in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole,
from that set forth in the Prospectus;
(l) The financial statements of the Company, together with
related notes, incorporated in the Registration Statement and the
Prospectus present fairly, in accordance with generally accepted
accounting principles consistently applied (except as stated therein
and except the notes to the interim financial statements), the
financial position and the results of operations of the Company and
its predecessors at the dates and for the respective periods to
which they apply;
(m) The Company is not and, after giving effect to the
offering and sale of the Notes and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as such term is defined in the Investment Company Act of
1940, as amended;
(n) The Company has filed an appropriate exemption statement
pursuant to the provisions of the Public Utility Holding Company Act
of 1935 (the "1935 Act") and is exempt from all provisions of the
1935 Act except Section 9(a)(2)thereof relating to the acquisition
of securities of other public utility companies. The Company is not
subject to the jurisdiction of the Florida Public Service Commission
with respect to the issue and sale of the Notes.
(o) PricewaterhouseCoopers LLP, successor to Coopers & Xxxxxxx
LLP who have certified financial statements of the Company, are
independent public accountants as required by the Securities Act and
the rules and regulations of the Commission thereunder; and
(p) The Company has complied with all provisions of
Section 517.075, Florida Statutes relating to doing business with
the Government of Cuba or with any person or affiliate located in
Cuba.
2. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. In connection with an Agent's
actions as agent hereunder, such Agent agrees to use reasonable
efforts to solicit offers to purchase Notes upon the terms and
conditions set forth in the Prospectus as then amended or
supplemented.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time
or permanently, the solicitation of offers to purchase Notes. Upon
receipt of notice from the Company, the Agents will forthwith
suspend solicitations of offers to purchase Notes from the Company
until such time as the Company has advised the Agents that such
solicitation may be resumed. While such solicitation is suspended,
the Company shall not be required to deliver any certificates,
opinions or letters in accordance with Sections 5(a), 5(b) and 5(c);
provided, however, that if the Registration Statement or Prospectus
is amended or supplemented during the period of suspension (other
than by an amendment or supplement providing solely for a change in
the interest rates, redemption provisions, amortization schedules or
maturities offered on the Notes or for a change the Agents deem to
be immaterial), no Agent shall be required to resume soliciting
offers to purchase Notes until the Company has delivered such
certificates, opinions and letters as such Agent may reasonably
request.
The Company agrees to pay to each Agent, as consideration for
the sale of each Note resulting from a solicitation made or an offer
to purchase received by such Agent, a commission in the form of a
discount from the purchase price of such Note equal to the
percentage set forth below of the purchase price of such Note:
Term
Commission
Rate
From 9 months to less than 1
year
.125%
From 1 year to less than 18
months
.150%
From 18 months to less than 2
years
.200%
From 2 years to less than 3
years
.250%
From 3 years to less than 4
years
.350%
From 4 years to less than 5
years
.450%
From 5 years to less than 6
years
.500%
From 6 years to less than 7
years
.550%
From 7 years to less than 10
years
.600%
From 10 years to less than 15
years
.625%
From 15 years to less than 20
years
From 20 years to less than 30
years
30 years and beyond
.700%
.750%
Subject to
negotiation
Each Agent shall communicate to the Company, orally or in
writing, each offer to purchase Notes received by such Agent as
agent that in its judgment should be considered by the Company. The
Company shall have the sole right to accept offers to purchase Notes
and may reject any offer in whole or in part. Each Agent shall have
the right to reject any offer to purchase Notes that it considers to
be unacceptable, and any such rejection shall not be deemed a breach
of its agreements contained herein. The procedural details relating
to the issue and delivery of Notes sold by the Agents as agents and
the payment therefor shall be as set forth in the Supplemental
Indenture relating to such Notes. Additional procedural details
relating to such Notes may be set forth in one or more letter
agreements between the Company and the Trustee.
(b) Purchases as Principal. Each sale of Notes to an Agent as
principal shall be made in accordance with the terms of this
Agreement. In connection with each such sale, the Company will
enter into a Purchase Agreement that will provide for the sale of
such Notes to and the purchase thereof by such Agent. Each Purchase
Agreement will take the form of a written agreement between such
Agent and the Company, which may be substantially in the form of
Exhibit A hereto (a "Purchase Agreement").
An Agent's commitment to purchase Notes pursuant to a Purchase
Agreement shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and
shall be subject to the terms and conditions herein set forth. Each
Purchase Agreement shall specify the principal amount of Notes to be
purchased by such Agent pursuant thereto, the maturity date of such
Notes, the price to be paid to the Company for such Notes, the
interest rate and interest rate formula, if any, applicable to such
Notes and other terms of such Notes. Each such Purchase Agreement
may also specify any requirements for officers' certificates,
opinions of counsel and letters from the independent public
accountants of the Company pursuant to Section 4 hereof. A Purchase
Agreement may also specify certain provisions relating to the
reoffering of such Notes by such Agent.
Each Purchase Agreement shall specify the time and place of
delivery of and payment for such Notes. Unless otherwise specified
in a Purchase Agreement, the procedural details relating to the
issue and delivery of Notes purchased by an Agent as principal and
the payment therefor shall be as set forth in the Supplemental
Indenture relating to such Notes. Additional procedural details
relating to such Notes may be set forth in one or more letter
agreements between the Company and the Trustee. Each date of
delivery of and payment for Notes to be purchased by an Agent
pursuant to a Purchase Agreement is referred to herein as a
"Settlement Date."
Unless otherwise specified in a Purchase Agreement, if you are
purchasing Notes as principal you may resell such Notes to other
dealers. Any such sales may be at a discount, which shall not
exceed the amount set forth in the Prospectus Supplement relating to
such Notes.
(c) Delivery. The documents required to be delivered by
Section 4 of this Agreement as a condition precedent to each Agent's
obligation to begin soliciting offers to purchase Notes as an agent
of the Company shall be delivered at the office of Ropes & Gray,
counsel for the Agents, not later than 10:00 a.m., New York City
time, on the date hereof, or at such other time and/or place as the
Agents and the Company may agree upon in writing, but in no event
later than the day prior to the earlier of (i) the date on which the
Agents begin soliciting offers to purchase Notes or (ii) the first
date on which the Company accepts any offer by an Agent to purchase
Notes pursuant to a Purchase Agreement. The date of delivery of
such documents is referred to herein as the "Commencement Date."
(d) Obligations Several. The Company acknowledges that the
obligations of the Agents under this Agreement are several and not
joint.
3. Agreements. The Company agrees with each Agent that:
(a) Prior to the termination of the offering of the Notes
pursuant to this Agreement or any Purchase Agreement, the Company
will not file any Prospectus Supplement relating to Notes or any
amendment to the Registration Statement unless the Company has
previously furnished to the Agents copies thereof for their review
and will not file any such proposed supplement or amendment to which
the Agents reasonably object; provided, however, that (i) the
foregoing requirement shall not apply to any of the Company's
periodic filings with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, copies of which filings the
Company will cause to be delivered to the Agents promptly after
being transmitted for filing with the Commission and (ii) any
Prospectus Supplement that merely sets forth the terms or a
description of particular Notes shall only be reviewed and approved
by the Agent or Agents offering such Notes. Subject to the
foregoing sentence, the Company will promptly cause each Prospectus
Supplement to be filed with or transmitted for filing to the
Commission in accordance with Rule 424(b) under the Securities Act.
The Company will promptly advise the Agents (i) of the filing of any
amendment or supplement to the Base Prospectus (except that notice
of the filing of an amendment or supplement to the Base Prospectus
that merely sets forth the terms or a description of particular
Notes shall only be given to the Agent or Agents offering such
Notes), (ii) of the filing and effectiveness of any amendment to the
Registration Statement, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or
supplement to the Base Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution
or threatening of any proceeding for that purpose, and (v) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use reasonable efforts to prevent
the issuance of any such stop order or notice of suspension of
qualification and, if issued, to obtain as soon as practicable the
withdrawal thereof. If the Base Prospectus is amended or
supplemented as a result of the filing under the Exchange Act of any
document incorporated by reference in the Prospectus, no Agent shall
be obligated to solicit offers to purchase Notes so long as it is
not reasonably satisfied with such document.
(b) If, at any time when a prospectus relating to Notes is
required to be delivered under the Securities Act, any event occurs
or condition exists as a result of which the Prospectus, as then
amended or supplemented, would include an untrue statement of a
material fact, or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances when the
Prospectus, as then amended or supplemented, is delivered to a
purchaser, not misleading, or if, in the opinion of the Company, it
is necessary at any time to amend or supplement the Prospectus, as
then amended or supplemented, to comply with applicable law, the
Company will immediately notify the Agents by telephone (with
confirmation in writing) to suspend solicitation of offers to
purchase Notes and, if so notified by the Company, the Agents shall
forthwith suspend such solicitation and cease using the Prospectus,
as then amended or supplemented. If the Company shall decide to
amend or supplement the Registration Statement or Prospectus, as
then amended or supplemented, it shall so advise the Agents promptly
by telephone (with confirmation in writing) and, at its expense,
shall prepare and cause to be filed with the Commission, except as
otherwise expressly provided, at such time it deems appropriate, an
amendment or supplement to the Registration Statement or Prospectus,
as then amended or supplemented, reasonably satisfactory to the
Agents, that will correct such statement or omission or effect such
compliance, and will supply such amended or supplemented Prospectus
to the Agents in such quantities as they may reasonably request. If
any documents, certificates, opinions and letters furnished to the
Agents pursuant to Sections 3(f), 5(a), 5(b) and 5(c) in connection
with the preparation and filing of such amendment or supplement are
reasonably satisfactory to the Agents, upon the filing with the
Commission of such amendment or supplement to the Prospectus or upon
the effectiveness of an amendment to the Registration Statement, the
Agents will resume the solicitation of offers to purchase Notes
hereunder. Notwithstanding any other provision of this paragraph,
until the distribution of any Notes an Agent may own as principal
has been completed up to a maximum of fifteen days from the date of
the Purchase Agreement, if any event described above in this
paragraph occurs, the Company will, at its own expense, forthwith
prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or Prospectus,
as then amended or supplemented, reasonably satisfactory to such
Agent, will supply such amended or supplemented Prospectus to such
Agent in such quantities as it may reasonably request, and shall
furnish to such Agent pursuant to Sections 3(f), 5(a), 5(b), and
5(c) such documents, certificates, opinions, and letters as it may
request in connection with the preparation and filing of such
amendment or supplement.
(c) The Company will make generally available to its security
holders an earning statement that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of
the Commission thereunder covering a twelve month period beginning
not later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in Rule 158 under the
Securities Act) of the Registration Statement with respect to each
sale of Notes. If such fiscal quarter is the first fiscal quarter
of the Company's fiscal year, such earning statement shall be made
available not later than 90 days after the close of the period
covered thereby and in all other cases shall be made available not
later than 45 days after the close of the period covered thereby.
(d) The Company will furnish to each Agent, without charge, a
conformed copy of the Registration Statement, including exhibits and
all amendments thereto, and as many copies of the Prospectus, any
documents incorporated by reference therein and any supplements and
amendments thereto as such Agent may reasonably request.
(e) The Company will cooperate in the qualification of the
Notes for offer and sale under the securities or Blue Sky laws of
such jurisdictions in the United States as the Agents shall
reasonably request and help to maintain such qualifications for as
long as the Agents shall reasonably request.
(f) The Company shall furnish to the Agents such relevant
documents and certificates of officers of the Company relating to
the business, operations and affairs of the Company, the
Registration Statement, the Base Prospectus, any amendments or
supplements thereto, the Indenture, any Supplemental Indenture, the
Notes, this Agreement, any Purchase Agreement and the performance by
the Company of its obligations hereunder or thereunder as the Agents
may from time to time reasonably request.
(g) The Company shall notify the Agents promptly in writing of
any downgrading, or of its receipt of any notice of any intended or
potential downgrading or of any review for possible change that does
not indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act.
(h) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its
obligations under this Agreement and any Purchase Agreement,
including (i) the preparation and filing of the Registration
Statement and the Prospectus and all amendments and supplements
thereto, (ii) the preparation, issuance and delivery of the Notes,
(iii) the fees and disbursements of the Company's counsel and
accountants and of the Trustee and its counsel, (iv) the
qualification of the Notes under securities or Blue Sky laws in
accordance with the provisions of Section 3(e), including filing
fees and the fees and disbursements of counsel for the Agents in
connection therewith and in connection with the preparation of any
Blue Sky Memoranda in an amount not exceeding $5,000 with respect to
any such memorandum, (v) the printing and delivery to the Agents in
quantities as hereinabove stated of copies of the Registration
Statement and all amendments thereto and of the Prospectus and any
amendments or supplements thereto, (vi) any fees charged by rating
agencies for a requested rating of the Notes (the Company agrees the
Agent shall not be obligated to pay bills for unrequested ratings)
(vii) any expenses incurred by the Company in connection with a
"road show" presentation to potential investors and (ix) the fees
and disbursements of counsel for the Agents incurred in connection
with the offering and sale of the Notes, including any opinions to
be rendered by such counsel xxxxxxxxx, and (x) any out-of-pocket
expenses incurred by the Agents which have been approved by the
Company.
(i) During the period beginning the date of any Purchase
Agreement and continuing to and including the Settlement Date with
respect to such Purchase Agreement (which period shall not exceed 15
days), the Company will not, without such Agent's prior written
consent, offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company or warrants to purchase debt
securities of the Company substantially similar to such Notes (other
than (A) the Notes that are to be sold pursuant to such Purchase
Agreement, (B) Notes previously agreed to be sold by the Company,
(C) commercial paper issued in the ordinary course of business and
(D) in connection with Acquisitions), except as may otherwise be
provided in such Purchase Agreement.
4. Conditions of the Obligations of the Agents. Each Agent's
obligation to solicit offers to purchase Notes as agent of the Company,
each Agent's obligation to purchase Notes pursuant to any Purchase
Agreement, and the obligation of a purchaser to purchase Notes sold
through an Agent as agent will be subject to the accuracy in all material
respects of the representations and warranties on the part of the Company
herein, to the accuracy in all material respects of the statements of the
Company's officers made in each certificate furnished pursuant to the
provisions hereof, and to the performance and observance by the Company
in all material respects of all covenants and agreements herein contained
on its part to be performed and observed (in the case of an Agent's
obligation to solicit offers to purchase Notes, at the time of such
solicitation, and, in the case of an Agent's or other purchaser's
obligation to purchase Notes, at the time the Company accepts the offer
to purchase such Notes and at the time of issuance and delivery) and (in
each case) to the following additional conditions precedent when and as
specifi ed:
(a) Prior to such solicitation or purchase, as the case may
be:
(i) there shall not have occurred any change in the
condition, financial or otherwise, or in the earnings, business
or operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus, as amended or
supplemented at the time of such solicitation or at the time
such offer to purchase was made, that, in the reasonable
judgment of the relevant Agent, is material and adverse and
that makes it, in the reasonable judgment of such Agent,
impracticable to market the Notes on the terms and in the
manner contemplated by the Prospectus, as so amended or
supplemented;
(ii) there shall not have occurred any (A) suspension or
material limitation of trading generally on or by, as the case
may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc.,
the Chicago Board Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (B) suspension of
trading of any securities of the Company on any exchange or in
any over-the-counter market, (C) declaration of a general
moratorium on commercial banking activities in New York by
either Federal or New York State authorities or (D) any
outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the
reasonable judgment of the relevant Agent, is material and
adverse and, in the case of any of the events described in
clauses 4(a)(ii)(A) through 4(a)(ii)(D), such event, singly or
together with any other such event, makes it, in the reasonable
judgment of such Agent, impracticable to market the Notes on
the terms and in the manner contemplated by the Prospectus, as
amended or supplemented at the time of such solicitation or at
the time such offer to purchase was made; and
(iii) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in
the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act;
except (A) in each case described in Section 4(a)(i), 4(a)(ii) or
4(a)(iii) above, as disclosed to the relevant Agent in writing by
the Company prior to such solicitation or, in the case of a purchase
of Notes, as disclosed to the relevant Agent before the offer to
purchase such Notes was made, or (B) in each case described in
Section 4(a)(ii) above, the relevant event shall have occurred and
been known to the relevant Agent before such solicitation or, in the
case of a purchase of Notes, before the offer to purchase such Notes
was made.
(b) On the Commencement Date and, if called for by any
Purchase Agreement, on the corresponding Settlement Date, the
relevant Agents shall have received:
(i) The opinion, dated as of such date, of Xxxxxx & Dodge
LLP, outside counsel for the Company, to the effect that:
(A) the Company has been duly incorporated, is
validly existing as a corporation in good standing under
the laws of the State of Florida has the corporate power
and authority to own its property and to conduct its
business as described in the Prospectus, as then amended
or supplemented;
(B) each of this Agreement and any applicable
Written Purchase Agreement has been duly authorized,
executed and delivered by the Company;
(C) the Indenture has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed
and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with
its terms, subject to bankruptcy, insolvency fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles;
(D) the Notes have been duly authorized and, if
executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for
by the purchasers thereof on the date of such opinion,
would be entitled to the benefits of the Indenture and
would be valid and binding obligations of the Company,
enforceable in accordance with their respective terms,
subject to bankruptcy, insolvency fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights
and to general equity principles;
(E) the execution and delivery by the Company of,
and the performance by the Company of its obligations
under, this Agreement, the Notes, the Indenture and any
applicable Purchase Agreement will not contravene any
provision of applicable law or the restated Articles of
incorporation or by-laws of the Company or constitute a
default under any agreement or other instrument binding
upon the Company or any of its subsidiaries that is listed
as an exhibit to the Company's Form 10-K for the year
ended December 31, 1997, or any subsequently filed
periodic report, or, to the best of such counsel's
knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction
over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification
with, any governmental body or agency is required for the
performance by the Company of its obligations under this
Agreement, the Notes, the Indenture and any applicable
Purchase Agreement, except as has been obtained and except
such as may be required by the securities or Blue Sky laws
of the various states in connection with the offer and
sale of the Notes or the rules of the National Association
of Securities Dealers;
(F) The Registration Statement has become effective under
the Securities Act, and, to the best of the knowledge of
such counsel, no stop order suspending the effectiveness
of the Registration Statement
or of any part thereof has been issued and no proceedings
for that purpose have been instituted or are pending or
contemplated under the Securities Act;
(G) the statements in the Prospectus, as then
amended or supplemented, under the captions "Description
of the Debt Securities," insofar as such statements
constitute summaries of the provisions of the Indenture
fairly summarize the matters referred to therein;
(H) such counsel is of the opinion ascribed to it in
the Prospectus, as then amended or supplemented, under the
caption "Certain Federal Income Tax Consequences";
(I) such counsel (1) is of the opinion that each
document filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus, as then
amended or supplemented (except for financial statements
and schedules and other financial and statistical data
included therein as to which such counsel need not express
any opinion) complied when so filed as to form in all
material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder, (2)
nothing has come to such counsel's attention which has
caused it to believe that (except for financial statements
and schedules and other financial and statistical data as
to which such counsel need not express any belief and
except for that part of the Registration Statement that
constitutes the Form T-1 heretofore referred to) each part
of the Registration Statement, as then amended, if
applicable, when such part became effective, contained any
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary
to make the statements therein not misleading, (3) is of
the opinion that the Registration Statement and
Prospectus, as then amended or supplemented, if applicable
(except for financial statements and schedules and other
financial or statistical data included therein as to which
such counsel need not express any opinion) comply as to
form in all material respects with the Securities Act and
the applicable rules and regulations of the Commission
thereunder and (4) nothing has come to such counsel's
attention which causes it to believe that (except for
financial statements and schedules and other financial or
statistical data as to which such counsel need not express
any belief) the Prospectus, as then amended or
supplemented, if applicable, as of the date such opinion
is delivered contains any untrue statement of a material
fact or omits to state a material fact necessary in order
to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided that in the case of an opinion delivered on the
Commencement Date or pursuant to Section 5(b), the opinion
and belief set forth in clauses 4(b)(i)(I)(3) and
4(b)(i)(I)(4) above shall be deemed not to cover
information concerning an offering of particular Notes to
the extent such information will be set forth in a
supplement to the Base Prospectus.
In rendering such opinion, Xxxxxx & Xxxxx may rely as to such
matters governed by Florida law upon the opinion of
Xxxxxx X. XxXxxxxx, corporate counsel to the Company
(provided Xxxxxx & Dodge shall state that they believe both they
and you are justified in relying upon such opinion).
(ii) The opinion, dated as of such date, of Xxxxxx X.
XxXxxxxx, corporate counsel to the Company, to the effect that:
(A) Each of the Company's "significant subsidiaries"
(as defined in Rule 1-02(w) of Regulation S-X of the
Exchange Act) that is a Florida corporation is a
corporation duly incorporated and validly existing in good
standing under the laws of the state of Florida, and has
full power and authority (corporate and other) to own its
properties and to conduct its business as described in the
Registration Statement and Prospectus; and
(B) All of the issued shares of capital stock of
each of the Company's significant subsidiaries have been
duly authorized and validly issued, are fully paid and
nonassessable and are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances and
claims.
(iii) The opinion, dated as of such date, of Ropes &
Gray, counsel for the Agents, covering such matters as the
Agents may reasonably request, such counsel having received
such papers and information as they may reasonably request to
enable them to pass on such matters.
(c) On the Commencement Date and, if called for by any
Purchase Agreement, on the corresponding Settlement Date, the
relevant Agents shall have received a certificate of the Company,
dated the Commencement Date or such Settlement Date, as the case may
be, and signed by an executive officer of the Company, to the effect
set forth in Section 4(a)(iii) and to the effect that the
representations and warranties of the Company contained in this
Agreement are, to the best of his or her knowledge true and correct
in all material respects as of such date and that the Company has
complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied on or before
such date.
(d) On the Commencement Date and, if called for by any
Purchase Agreement, on the corresponding Settlement Date,
PricewaterhouseCoopers LLP, independent public accountants, shall
have furnished to the relevant Agents a letter or letters, dated the
Commencement Date or such Settlement Date, as the case may be, in
form and substance satisfactory to such Agents containing statements
and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or
incorporated by reference into the Prospectus, as then amended or
supplemented.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to the relevant Agents such appropriate
further information, certificates and documents as they may
reasonably request.
5. Additional Agreements of the Company.
(a) Each time the Registration Statement or Prospectus is
amended or supplemented (other than by an amendment or supplement
providing solely for a change in the interest rates, redemption
provisions, amortization schedules or maturities offered on the
Notes or for a change the Agents deem to be immaterial), upon the
reasonable request of the Agent the Company will deliver or cause to
be delivered forthwith to each Agent a certificate of the Company
signed by an executive officer of the Company, dated the date of
such amendment or supplement, as the case may be, in form reasonably
satisfactory to the Agents, of the same tenor as the certificate
referred to in Section 4(c) relating to the Registration Statement
or the Prospectus as amended or supplemented to the time of delivery
of such certificate.
(b) Each time the Company furnishes a certificate pursuant to
Section 5(a), the Company will furnish or cause to be furnished
forthwith to each Agent a written opinion of independent counsel for
the Company. Any such opinion shall be dated the date of such
amendment or supplement, as the case may be, shall be in a form
satisfactory to the Agents and shall be of the same tenor as the
opinion referred to in Section 4(b)(i), but modified to relate to
the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion. In lieu of
such opinion, counsel last furnishing such an opinion to an Agent
may furnish to each Agent a letter to the effect that such Agent may
rely on such last opinion to the same extent as though it were dated
the date of such letter (except that statements in such last opinion
will be deemed to relate to the Registration Statement and the
Prospectus as amended or supplemented to the time of delivery of
such letter.)
(c) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental
financial information or such amended or supplemental information is
incorporated by reference in the Prospectus, the Company, upon the
reasonable request of the Agent, shall cause its independent public
accountants forthwith to furnish each Agent with a letter, dated the
date of such amendment or supplement, as the case may be, in form
satisfactory to the Agents, of the same tenor as the letter referred
to in Section 4(d), with regard to the amended or supplemental
financial information included or incorporated by reference in the
Registration Statement or the Prospectus as amended or supplemented
to the date of such letter.
6. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Agent and each person, if any, who controls any Agent within the
meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof or the
Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by (A) any such untrue statement
or omission or alleged untrue statement or omission based upon (i)
information relating to such Agent furnished to the Company in
writing by such Agent expressly for use therein or (ii) information
in that part of the Registration Statement that constitutes the Form
T-1, (B) failure to deliver the Prospectus as most recently
supplemented or amended with or prior to the written confirmation of
such sale or (C) sales made following notice pursuant to Section
3(b) and prior to delivery of an amended or supplemented Prospectus.
(b) Each Agent agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the
Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Agent, but only with
reference to information relating to such Agent furnished to the
Company in writing by such Agent expressly for use in the
Registration Statement or the Prospectus or any amendments or
supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect
of which indemnity may be sought pursuant to either Section 6(a) or
6(b) above, such person (the "indemnified party") shall promptly
notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that
the indemnifying party shall not, in respect of the legal expenses
of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees
and expenses of more than one separate firm (in addition to any
local counsel) for all such indemnified parties and that all such
fees and expenses shall be reimbursed as they are incurred. Such
firm shall be designated in writing by the Agents that are
indemnified parties, in the case of parties indemnified pursuant to
Section 6(a) above, and by the Company, in the case of parties
indemnified pursuant to Section 6(b) above. The indemnifying party
shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss
or liability by reason of such settlement or judgment.
(d) To the extent the indemnification provided for in Section
6(a) or 6(b) is unavailable to an indemnified party or insufficient
in respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in lieu
of indemnifying such indemnified party thereunder, shall contribute
to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and each Agent on the other
hand from the offering of such Notes or (ii) if the allocation
provided by clause 6(d)(i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 6(d)(i) above but also the
relative fault of the Company on the one hand and each Agent on the
other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and each Agent on the other
hand in connection with the offering of such Notes shall be deemed
to be in the same respective proportions as the total net proceeds
from the offering of such Notes (before deducting expenses) received
by the Company bear to the total discounts and commissions received
by each Agent in respect thereof. The relative fault of the Company
on the one hand and each Agent on the other hand shall be determined
by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the Company or by such Agent and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. Each Agent's obligation to
contribute pursuant to this Section 6 shall be several in the
proportion that the principal amount of the Notes the sale of which
by or through such Agent gave rise to such losses, claims, damages
or liabilities bears to the aggregate principal amount of the Notes
the sale of which by or through any Agent gave rise to such losses,
claims, damages or liabilities, and not joint.
(e) The Company and the Agents agree that it would not be just
or equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation (even if the Agents were treated
as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred
to in Section 6(d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities
referred to in Section 6(d) shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Agent shall be
required to contribute any amount in excess of the amount by which
the total price at which the Notes referred to in Section 6(d) that
were offered and sold to the public through such Agent exceeds the
amount of any damages that such Agent has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission
or alleg ed omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 6 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in
this Section 6, representations, warranties and other statements of
the Company, its officers and the Agents set forth in or made
pursuant to this Agreement or any Purchase Agreement will remain in
full force and effect regardless of (i) any termination of this
Agreement or any such Purchase Agreement, (ii) any investigation
made by or on behalf of any Agent or any person controlling any
Agent or by or on behalf of the Company, its officers or directors
or any person controlling the Company and (iii) acceptance of and
payment for any of the Notes.
7. Position of the Agents. In acting under this Agreement and in
connection with the sale of any Notes by the Company (other than Notes
sold to an Agent pursuant to a Purchase Agreement), each Agent is acting
solely as agent of the Company and does not assume any obligation towards
or relationship of agency or trust with any purchaser of Notes. An Agent
shall make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes has been
solicited by such Agent and accepted by the Company, but such Agent shall
not have any liability to the Company in the event any such purchase is
not consummated for any reason. If the Company shall default in its
obligations to deliver Notes to a purchaser whose offer it has accepted,
the Company shall hold the relevant Agent harmless against any loss,
claim, damage or liability arising from or as a result of such default
and shall, in particular, pay to such Agent the commission it would have
received had such sale been consummated.
8. Termination. This Agreement may be terminated at any time by
the Company or, as to any Agent, by the Company or such Agent upon the
giving of written notice of such termination to the other parties hereto,
but without prejudice to any rights, obligations or liabilities of any
party hereto accrued or incurred prior to such termination. The
termination of this Agreement shall not require termination of any
Purchase Agreement, and the termination of any such Purchase Agreement
shall not require termination of this Agreement. If this Agreement is
terminated, the provisions of the third paragraph of Section 2(a),
Section 2(c), the last sentence of Section 3(b) and Sections 3(c), 3(h),
6, 7, 9, 10 and 13 shall survive; provided that if at the time of
termination an offer to purchase Notes has been accepted by the Company
but the time of delivery to the purchaser or its agent of such Notes has
not occurred, the provisions of Sections 1, 2(b), 3(a), 3(d), 3(e), 3(f),
3(g), 3(i), 4 and 5 shall also survive until such delivery has been made.
9. Notices. All communications hereunder will be in writing and
shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices shall be sent,
if to the Agents, to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, New York 10036
Facsimile: (000) 000-0000
Attention: Manager - Continuously Offered Products
with a copy to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx, Investment Banking Information Center
and a copy to:
Citicorp Securities, Inc.
000 Xxxx Xxxxxx
0xx Xxxxx, Xxxx 0
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
and a copy to:
Ropes & Gray
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx
and if to the Company, to:
TECO Energy, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
with a copy to:
Xxxxxx & Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
10. Successors. This Agreement and any Purchase Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers, directors and controlling persons
referred to in Section 6 and the purchasers of Notes (to the extent
expressly provided in Section 4), and no other person will have any right
or obligation hereunder.
11. Amendments. This Agreement may be amended or supplemented if,
but only if, such amendment or supplement is in writing and is signed by
the Company and each Agent; provided that the Company may from time to
time, on seven days prior written notice to the Agents but without the
consent of any Agent, amend this Agreement to add as a party hereto one
or more additional firms registered under the Exchange Act, whereupon
each such firm shall become an Agent hereunder on the same terms and
conditions as the other Agents that are parties hereto. The Agents shall
sign any amendment or supplement giving effect to the addition of any
such firm as an Agent under this Agreement.
12. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
except with respect to its conflicts of laws principles.
14. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement between the Company and you.
Very truly yours,
TECO ENERGY, INC.
By: /s/ X. X. Xxxxxxxx
Name: X. X. Xxxxxxxx
Title: Vice President - Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the
date first above written.
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Vice President
CITICORP SECURITIES, INC.
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Managing Director
EXHIBIT A
TECO ENERGY, INC.
Medium-Term Notes
PURCHASE AGREEMENT
[Date]
TECO Energy, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Re: Purchase of Medium-Term Notes due [Maturity Date] (the "Notes")
Reference is made to the Agency Agreement dated September 11, 1998
between you and each of us (the "Agency Agreement"). Capitalized terms
used herein and not defined are used as defined in the Agency Agreement.
We agree to purchase, severally and not jointly, the principal
amount of Notes set forth below opposite our names:
Principal Amount
Name of Notes
Xxxxxx Xxxxxxx & Co. Incorporated $
Citicorp Securities, Inc.
Total. . $
The Notes shall be in the form of, and shall have the terms set
forth in, the Form of Note attached as Exhibit A hereto.
The provisions of Sections 1, 2(b), 2(c), 3 through 6 and 9 through
13 of the Agency Agreement and the related definitions are incorporated
by reference herein and shall be deemed to have the same force and effect
as if set forth in full herein.
If on the Settlement Date any one or more of the Agents shall fail
or refuse to purchase Notes that it has or they have agreed to purchase
on such date, and the aggregate amount of Notes which such defaulting
Agent or Agents agreed but failed or refused to purchase is not more than
one-tenth of the aggregate amount of the Notes to be purchased on such
date, the other Agents shall be obligated severally in the proportions
that the amount of Notes set forth opposite their respective names above
bears to the aggregate amount of Notes set forth opposite the names of
all such non-defaulting Agents, or in such other proportions Xxxxxx
Xxxxxxx may specify, to purchase the Notes which such defaulting Agent or
Agents agreed but failed or refused to purchase on such date; provided
that in no event shall the amount of Notes that any Agent has agreed to
purchase pursuant to this Agreement be increased pursuant to this
paragraph by an amount in excess of one-ninth of such amount of Notes
without the written consent of such Agent. If on the Settlement Date any
Agent or Agents shall fail or refuse to purchase Notes and the aggregate
amount of Notes with respect to which such default occurs is more than
one-tenth of the aggregate amount of Notes to be purchased on such date,
and arrangements satisfactory to Xxxxxx Xxxxxxx and the Company for the
purchase of such Notes are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Agent or the Company. In any such case either Xxxxxx
Xxxxxxx or the Company shall have the right to postpone the Settlement
Date but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting
Agent from liability in respect of any default of such Agent under this
Agreement.
This Agreement is also subject to termination on the terms
incorporated by reference herein. If this Agreement is terminated, the
provisions of Sections 3(h), 6, 9, 10 and 13 of the Agency Agreement
shall survive for the purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Agency Agreement will be
required: ________________.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement between the Agents and you.
Very truly yours,
XXXXXX XXXXXXX & CO. INCORPORATED
By:
Name:
Title:
CITICORP SECURITIES, INC.
By:
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the
date first above written.
TECO ENERGY, INC.
By:
Name:
Title:
