Exhibit 4.37
TECO ENERGY, INC.
5.11% TRUST PREFERRED SECURITY OF TECO CAPITAL TRUST II
October __, 2004
[NAME OF REMARKETING AGENT]
Ladies and Gentlemen:
[Name of Remarketing Agent], a _________________________________
(the "Remarketing Agent"), is undertaking to remarket the 5.11% Trust Preferred
Securities, stated liquidation amount $25 per Trust Preferred Security (the
"Trust Preferred Securities"), issued by TECO Capital Trust II, a statutory
business trust created under Delaware law (the "Trust"), pursuant to the
Purchase Contract Agreement dated as of January 15, 2002 (the "Purchase Contract
Agreement") between TECO Energy, Inc., a Florida corporation (the "Company"),
and The Bank of New York, as purchase contract agent (the "Purchase Contract
Agent").
The Trust Preferred Securities have been issued pursuant to and are
governed by, the Amended and Restated Trust Agreement dated as of January 15,
2002, among TECO Funding Company II, LLC (the "LLC"), as the depositor, The Bank
of New York, as property trustee (the "Property Trustee"), and The Bank of New
York (Delaware), as the Delaware Trustee (the "Delaware Trustee"), and the
holders from time to time of undivided beneficial ownership interests in the
assets of the Trust, (the "Trust Agreement"). Each Trust Preferred Security was
issued as part of an equity security unit of the Company (the "Unit") that
initially also included a contract (a "Purchase Contract") under which the
holder agreed to purchase from the Company, and the Company agreed to sell to
the holders, on January 15, 2005, a number of shares (the "Issuable Common
Stock") of common stock, par value $1.00 per share, of the Company equal to the
Settlement Rate (as defined in the Purchase Contract Agreement) as set forth in
the Purchase Contract Agreement.
In accordance with the terms of the Purchase Contract Agreement, the
Trust Preferred Securities constituting a part of the Units have been pledged by
the Purchase Contract Agent, as attorney-in-fact of the holders of the Unit, to
The Bank of New York, as collateral agent (the "Collateral Agent"), pursuant to
the Pledge Agreement, dated as of January 15, 2002 (the "Pledge Agreement"),
among the Company, the Purchase Contract Agent, the Collateral Agent and The
Bank of New York, as custodial agent (the "Custodial Agent") and Securities
Intermediary ("Securities Intermediary"), to secure the holders' obligation to
purchase Common Stock under the Purchase Contracts.
Pursuant to the terms of the Trust Agreement, the Trust issued
16,000,000 of its Trust Preferred Securities and used the proceeds therefrom to
purchase from the LLC its preferred securities (the "LLC Preferred Securities")
with an aggregate stated liquidation value equal to the aggregate stated
liquidation value
(the "Stated Amount") of, and with terms similar to those of, the Trust
Preferred Securities;
Pursuant to the terms of the Limited Liability Company Agreement of
TECO Funding Company II, LLC dated as of November 17, 2000, as amended through
the date hereof (the "LLC Agreement"), the LLC used the proceeds from the
issuance and sale of its LLC Preferred Securities to the Trust and from the
issuance and sale of its common securities (the "LLC Common Securities" and,
together with the LLC Preferred Securities, the "LLC Securities") to TECO to
purchase the 5.11% Junior Subordinated Notes due January 15, 2007 (the "Notes")
issued by TECO pursuant to an Indenture, dated as of August 17, 1998, as amended
through the date hereof and as supplemented by the Sixth Supplemental Indenture,
dated January 15, 2002 (the "Indenture"), such Notes having an aggregate
principal amount equal to the aggregate stated liquidation value of the LLC
Preferred Securities and LLC Common Securities combined.
Payments on the LLC Preferred Securities and, indirectly, the Trust
Preferred Securities are guaranteed (the "Guarantee") by the Company on an
unsecured and subordinated basis, pursuant to the Guarantee Agreement dated as
of January 15, 2002 (the "Guarantee Agreement") between the Company and The Bank
of New York, as guarantee trustee (the "Guarantee Trustee").
Section 1. Appointment and Obligations of the Remarketing Agent.
(a) The Company, the Purchase Contract Agent, the LLC and the Trust
hereby appoint ____________ as exclusive Remarketing Agent (the "Remarketing
Agent") and ________________ hereby accepts appointment as Remarketing Agent,
for the purpose of (i) the remarketing ("Remarketing") of the Trust Preferred
Securities pursuant to the remarketing procedures, as set forth in the Purchase
Contract Agreement, the Pledge Agreement, the LLC Agreement and the Trust
Agreement, as the case may be (such procedures, the "Remarketing Procedures"),
on behalf of the holders thereof and (ii) performing such other duties as are
assigned to the Remarketing Agent in the Remarketing Procedures and the Trust
Agreement, all in accordance with and pursuant to the Remarketing Procedures and
the Trust Agreement.
(b) The Remarketing Agent agrees (i) to use its commercially
reasonable best efforts to remarket the Remarketed Trust Preferred Securities
(as defined below) tendered or deemed tendered to the Remarketing Agent in the
Remarketing, (ii) to notify the Company, the LLC, the Trust, the Depositary and
the Indenture Trustee promptly of the Reset Rate (as defined in the Trust
Agreement) in accordance with the Trust Agreement and (iii) to establish the
Reset Rate and carry out such other duties as are assigned to the Remarketing
Agent in the Remarketing Procedures, all in accordance with the provisions of
the Remarketing Procedures and the Trust Agreement.
(c) On the third Business Day immediately preceding October 15, 2004
(the "Remarketing Date"), the Remarketing Agent shall use its commercially
reasonable best efforts to remarket, at a price equal to at least 100.25% of the
Remarketing Value, the Remarketed Trust Preferred Securities tendered or deemed
tendered for purchase.
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(d) If, as a result of the efforts described in Section 1(b), the
Remarketing Agent determines that it will be able to remarket all Remarketed
Trust Preferred Securities tendered or deemed tendered for purchase at a price
of 100.25% of the Remarketing Value prior to 4:00 p.m., New York City time, on
the Remarketing Date, the Remarketing Agent shall (i) determine the Reset Rate
that will enable it to remarket all Remarketed Trust Preferred Securities
tendered or deemed tendered for Remarketing, but in no event will the Reset Rate
be lower than 5.11% (the initial rate), and (ii) commit to purchase on a
third-trading day settlement basis, and on the third Trading Day following the
Remarketing Date, shall purchase, the Agent-purchased Treasury Consideration (as
defined in the Purchase Contract Agreement).
(e) If, notwithstanding the efforts described in Section 1(b), the
Remarketing Agent cannot remarket the Trust Preferred Securities on the
Remarketing Date, the Remarketing Agent will continue to attempt to remarket the
Trust Preferred Securities on one or more occasions until the Purchase Contract
Date (as defined in the Purchase Contract Agreement) in accordance with the
Remarketing Procedures and the Trust Agreement (each such remarketing, the
"Subsequent Remarketing"), provided that (i) the notice of any Subsequent
Remarketing cannot be given until the Failed Remarketing notice has been
published in accordance with the Remarketing Procedures in respect of any
immediately proceeding Failed Remarketing and (ii) the Remarketing Date in
respect of any Subsequent Remarketing must fall no later than on the Business
Day (as defined in the Purchase Contract Agreement) immediately preceding the
Purchase Contract Date (as defined in the Purchase Contract Agreement).
(f) If, by 4:00 p.m., New York City time, on the Remarketing Date
(including a Remarketing Date of any Subsequent Remarketing), the Remarketing
Agent is unable to remarket all the Trust Preferred Securities subject to the
Remarketing as notified to the Remarketing Agent by the Purchase Contract Agent
and the Custodial Agent on or prior to the first Business Day prior to the
Remarketing Date (the "Remarketed Trust Preferred Securities") tendered or
deemed tendered for purchase, a failed Remarketing ("Failed Remarketing") shall
be deemed to have occurred, and the Remarketing Agent shall, on such date, so
advise by telephone the Purchase Contract Agent, the Indenture Trustee, the
Company, the LLC, the Trust, the Collateral Agent and the Property Trustee.
(g) On the third Business Day following the Failed Remarketing, the
Remarketing Agent shall remit (i) to the Collateral Agent the Remarketed Trust
Preferred Securities consisting of the Pledged Trust Preferred Securities, and
(ii) to the Custodial Agent the balance of the Remarketed Trust Preferred
Securities.
(h) By approximately 4:30 p.m., New York City time, on the
Remarketing Date (or any Subsequent Remarketing Date), provided that there has
not been a Failed Remarketing, the Remarketing Agent shall advise, by telephone
(i) the Company, the LLC, the Trust, the Purchase Contract Agent, the Depositary
and the Indenture Trustee, of the Reset Rate determined in the Remarketing and
the number of Remarketed Trust Preferred Securities remarketed in the
Remarketing, (ii) each purchaser (or the Depositary Participant thereof)
purchasing Trust Preferred Securities sold in the Remarketing of the Reset Rate
and the number of Trust Preferred Securities such purchaser is to purchase and
(iii) each purchaser to give instructions to its Depositary Participant to pay
the purchase price on the Purchase Contract
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Settlement Date in same day funds against delivery of the Trust Preferred
Securities purchased through the facilities of the Depositary.
(i) In accordance with the Depositary's normal procedures, on the
Remarketing Date, the transactions described above with respect to each Trust
Preferred Security tendered for purchase and remarketed in the Remarketing shall
be executed through the Depositary, and the accounts of the appropriate
Depositary participants shall be debited and credited, respectively, and such
Trust Preferred Securities delivered by book-entry as necessary to effect
purchases and remarketings of such Trust Preferred Securities.
(j) On the Remarketing Date, the tender and settlement procedures
set forth in this Section 1, including provisions for payment by purchasers of
the Trust Preferred Securities in the Remarketing, shall be subject to
modification to the extent required by the Depositary or if the book-entry
system is no longer available for the Trust Preferred Securities at the time of
the Remarketing, to facilitate the tendering and remarketing of the Trust
Preferred Securities in certificated form. In addition, the Remarketing Agent
may modify the settlement procedures set forth herein in order to facilitate the
settlement process.
(k) On the Remarketing Date, the Remarketing Agent shall retain as a
remarketing fee for itself an amount not exceeding 25 basis points (0.25%) of
the total proceeds from the sale of the Remarketed Trust Preferred Securities.
The Remarketing Agent shall use the portion of the proceeds attributable to the
Trust Preferred Securities that were components of Equity Security Units to
purchase (in open market or at treasury auction, in its discretion) the amount
and types of U.S. Treasury securities set forth in clauses (i) and (ii) of the
definition of "Remarketing Value" set forth in Section 5.2(b)(i) of the Purchase
Contract Agreement and shall deliver such securities through the Purchase
Contract Agent to the Collateral Agent to secure the obligations under the
related purchase contracts of the Holders of Equity Security Units whose Trust
Preferred Securities were included in the Remarketing. The Remarketing Agent
shall remit the portion of the proceeds attributable to the Trust Preferred
Securities that were not components of Equity Security Units to the holders of
such Trust Preferred Securities. The Remarketing Agent shall remit the any
remaining balance of the proceeds to the Purchase Contract Agent for the benefit
of the Holders of Equity Security Units participating in the Remarketing.
(l) The Remarketing of the Trust Preferred Securities is also
provided for in the Purchase Contract Agreement, the Pledge Agreement and the
Trust Agreement.
Section 2. Representations, Warranties and Agreements of the
Company, the LLC and the Trust. The Company, the LLC and the Trust, jointly and
severally, hereby represent, warrant and agree each as to itself and the Company
as to the LLC and the Trust that, (i) on and as of the date hereof, (ii) on and
as of the date of the Prospectus or other Remarketing Materials (each as defined
below) first distributed in connection with the Remarketing (the "Commencement
Date"), and (iii) on and as of the Remarketing Date, as follows:
(a) [IN THE EVENT THAT A REGISTRATION STATEMENT IS NOT REQUIRED
INSERT THE FOLLOWING: The Company has provided to the Remarketing Agent, for use
in connection with remarketing of the Trust Preferred Securities, a preliminary
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remarketing memorandum and remarketing memorandum [AND, DESCRIBE OTHER MATERIALS
IF ANY]. Such remarketing memorandum (including the documents incorporated or
deemed incorporated by reference therein, [AND DESCRIBE OTHER MATERIALS] are
hereafter called, collectively, the "Prospectus," and such preliminary marketing
memorandum (including the documents incorporated or deemed incorporated by
reference therein) is hereafter called a "Preliminary Prospectus"). The Company
hereby consents to the use of the Prospectus and the Preliminary Prospectus in
connection with the Remarketing.]
[IN THE EVENT THAT A REGISTRATION STATEMENT IS REQUIRED INSERT THE
FOLLOWING: A registration statement (File No. 333- _______) of the Company and
the Trust (the "Registration Statement"), including a prospectus, relating to
the Remarketing and the Remarketed Trust Preferred Securities, the Notes and the
Guarantee (collectively, the "Securities") has been filed under the Securities
Act of 1933, as amended, and the rules and regulations of the Commission
thereunder (the "Securities Act") with the Securities and Exchange Commission
(the "Commission") and has become effective. The preliminary prospectus related
to such Registration Statement as first filed pursuant to Rule 424(b) of the
Securities Act is referred to herein as the "Preliminary Prospectus," and the
final prospectus related to such Registration Statement as first filed pursuant
to Rule 424(b) of the Securities Act is referred to herein as the "Prospectus".
Unless the context otherwise requires, following a dissolution of the Trust, all
references herein to (1) if the LLC shall not have been dissolved or otherwise
terminated, the Trust and Trust Preferred Securities shall be deemed to refer to
the LLC and LLC Preferred Securities, respectively, or (2) if the LLC shall have
been dissolved or otherwise terminated, the Trust Preferred Securities shall be
deemed to refer to the Notes.
(b) On the effective date of the Registration Statement, the
Registration Statement, including any documents incorporated by reference
therein at such time conformed in all material respects to the requirements of
the Securities Act, the Trust Indenture Act of 1939, as amended, and the rules
and regulations of the Commission thereunder (the "Trust Indenture Act"), and
did not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading; and on the date hereof, the Registration Statement, and
the Prospectus conform in all material respects to the requirements of the
Securities Act and the Trust Indenture Act, and neither of such documents,
considered together with any Remarketing Materials related thereto, includes any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading.
Neither of the foregoing statements applies to (i) statements in or omissions
from any of such documents based upon written information furnished to the
Company by the Remarketing Agent, if any, specifically for use therein or (ii)
that part of the Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act.
Reference made herein to any Preliminary Prospectus, the Prospectus
or any other information furnished by the Company to the Remarketing Agent for
distribution to investors in connection with the Remarketing (the "Remarketing
Materials") shall be deemed to refer to and include any documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the Securities Act as
of the date of such Preliminary Prospectus or Prospectus, as the case may be,
or, in the case of Remarketing Materials, referred to as incorporated by
reference therein, and any reference to any amendment or supplement to any
Preliminary Prospectus, the Prospectus or
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the Remarketing Materials shall be deemed to refer to and include any document
filed under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), after the date of such Preliminary Prospectus or Prospectus incorporated
by reference therein pursuant to Item 12 of Form S-3 or, if so incorporated
therein, the Remarketing Materials, as the case may be; and any reference to any
amendment to the Registration Statement shall be deemed to include any annual
report of the Company or the Trust filed with the Commission pursuant to Section
13(a) or 15(d) of the Exchange Act after the date and time that the Registration
Statement, or any post-effective amendment, is declared effective by the
Commission, that is incorporated by reference in the Registration Statement.]
(c) No stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto has been issued and no
proceeding for that purpose has been initiated or, to the Company's knowledge,
threatened by the Commission; and no order preventing or suspending the use of
the Preliminary Prospectus or the Prospectus has been issued by the Commission.
(d) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act of the
State of Delaware (the "Delaware Business Trust Act") with the power and
authority to own property and conduct its business as described in the
Prospectus; the Trust is not a party to or bound by any agreement or instrument
other than the Purchase Contract Agreement, the Trust Agreement, the Pledge
Agreement and this Agreement (collectively, the "Unit-Related Trust Agreements")
and the LLC Agreement and the other agreements entered into in connection with
the transactions contemplated thereby and hereby; the Trust has no liabilities
or obligations other than those arising out of the transactions contemplated by
this Agreement and the Trust Agreement as described in the Prospectus; and the
Trust is not a party to or subject to any action, suit or proceeding of any
nature.
(e) The LLC has been duly formed and is validly existing as a
limited liability company in good standing under the Delaware Limited Liability
Company Act (the "Delaware LLC Act") with the power and authority to own
property and conduct its business as described in the Prospectus; the LLC is not
a party to or bound by any agreement or instrument other than the Purchase
Contract Agreement, the LLC Agreement, the Pledge Agreement, the Trust Agreement
and this Agreement (the "Unit-Related LLC Agreements" and, together with the
Unit-Related Trust Agreements, the "Unit Agreements") and the other agreements
entered into in connection with the transactions contemplated thereby and
hereby; the LLC has no liabilities or obligations other than those arising out
of the transactions contemplated by this Agreement and the LLC Agreement as
described in the Prospectus; and the LLC is not a party to or subject to any
action, suit or proceeding of any nature.
(f) Each of the Securities and the Unit Agreements, the Guarantee
Agreement and the Indenture (the "Transaction Agreements") has been duly
authorized by the Company, the LLC and the Trust, as the case may be, and
conforms or will conform, as the case may be, in all material respects to the
description thereof contained in the Prospectus.
(g) There are no preemptive or other rights to subscribe for or to
purchase, nor is there any restriction on the voting or transfer of, any of the
Securities pursuant to the
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Company's Articles of Incorporation or by-laws, the LLC Agreement, the Trust
Agreement or any agreement or instrument, except as such preemptive or other
rights and/or restrictions are expected with respect to the transactions
contemplated by the Purchase Contract Agreement, the Pledge Agreement, the LLC
Agreement and the Trust Agreement.
(h) The Units have been duly executed and delivered by the Company,
have been duly and validly issued and are validly outstanding, and constitute
valid and binding obligations of the Company entitled to the benefits of the
Purchase Contract Agreement and enforceable against the Company in accordance
with their terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
(i) The Notes have been duly executed and delivered as contemplated
by the Indenture against payment of the agreed consideration therefor, assuming
due authentication and valid delivery by the Indenture Trustee, have been duly
and validly issued and are validly outstanding, and constitute valid and binding
obligations of the Company entitled to the benefits of the Indenture, and
enforceable against the Company in accordance with their terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
(j) The Guarantee Agreement has been duly executed, delivered and,
assuming due authentication and valid delivery by the Guarantee Trustee, issued
and constitutes a valid and binding obligation of the Company and is enforceable
against the Company in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing.
(k) The unissued shares of Common Stock to be issued and sold by the
Company upon settlement of the Purchase Contracts have been duly and validly
authorized and reserved for issuance and, when issued and delivered in
accordance with the provisions of the Purchase Contracts, will be duly and
validly issued, fully paid and non-assessable; and the issuance of such Common
Stock will not be subject to any preemptive or similar rights.
(l) The LLC Securities have been validly issued, are fully paid and
non-assessable, and will conform in all material respects to the descriptions
contained in the Prospectus.
(m) Assuming due authentication by the Property Trustee, the Trust
Preferred Securities have been validly issued, are fully paid and
non-assessable, and will conform in all material respects to the descriptions
contained in the Prospectus.
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(n) Each of the Transaction Agreements has been duly executed by the
proper officers of the Company and delivered by the Company, and constitutes a
valid and binding agreement of the Company enforceable against the Company in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(o) The Securities and the Transaction Agreements will conform in
all material respects to the descriptions thereof contained in the Prospectus.
(p) The Remarketing, the execution, delivery and performance of the
Transaction Agreements, the issuance and sale or exchange, as the case may be,
of the Securities and the consummation by the Company, the LLC, and the Trust,
as the case may be, of the transactions contemplated hereby and thereby
(collectively, the "Transactions") have not or will not, as the case may be, (1)
breach any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company, any of its significant subsidiaries (as the
term "significant subsidiary" is defined in rule 1-02 of regulation S-X
promulgated by the Commission, each such subsidiary being referred to in this
Agreement as a "Significant Subsidiary"), the LLC or the Trust is a party or by
which the Company, any of its Significant Subsidiaries, the LLC or the Trust is
bound or to which any of the properties or assets of the Company, any of its
Significant Subsidiaries, the LLC or the Trust is subject, except for such
breaches or defaults as would not, individually or in the aggregate, cause a
material adverse change in the financial position, shareholders' equity or
results of operations of the Company, (2) violate the provisions of the charter
or by-laws (or equivalent organizational documents) of the Company, any of its
Significant Subsidiaries, the LLC or the Trust or (3) violate any statute or any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company, any of its Significant Subsidiaries, the LLC, the
Trust or any of their respective properties or assets, except for such
violations as would not, individually or in the aggregate, cause a material
adverse change in the financial position, shareholders' equity or results of
operations of the Company, and (4) require any material consent, approval,
authorization or order of, or filing or registration with, any such court or
governmental agency or body for the consummation of the Transaction Agreements
or the issuance and sale or exchange of the Securities, as the case may be,
except for (a) the registration under the Securities Act of the Securities, (b)
the qualification of the Indenture, the Guarantee Agreement and the Trust
Agreement under the Trust Indenture Act, and (c) such consents, approvals,
authorizations, registrations or qualifications as (i) may be required under the
Exchange Act and applicable state securities laws in connection with the
Remarketing or (ii) have or will have already be obtained or made.
Section 3. Fees and Expenses. The Company, the LLC and the Trust,
jointly and severally, covenant and agree with the Remarketing Agent that the
Company will pay or cause to be paid the following: (i) the costs incident to
the preparation and printing of the Registration Statement, the Preliminary
Prospectus, the Prospectus and any Remarketing Materials and any amendments or
supplements thereto; (ii) the costs of distributing the Registration Statement,
the Preliminary Prospectus, the Prospectus and any Remarketing Materials and any
amendments or supplements thereto; (iii) any fees and expenses of qualifying the
Remarketed Trust Preferred
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Securities under the securities laws of the several jurisdictions as provided in
Section 4(g) and of preparing, printing and distributing a Blue Sky memorandum
(including related reasonable fees and expenses of counsel to the Remarketing
Agent); and (iv) all other costs and expenses incident to the performance of the
obligations of the Company, the LLC and the Trust hereunder.
Section 4. Further Agreements of the Company. The Company, the LLC
and the Trust agree, jointly and severally agree to use their reasonable best
efforts:
(a) To prepare the Registration Statement, the Preliminary
Prospectus or the Prospectus, or if none is required, a remarketing memorandum,
including any preliminary remarketing memorandum, in each case, in a form
approved by the Remarketing Agent, in connection with the Remarketing, and to
file any such Prospectus pursuant to the Securities Act within the period
required by the Securities Act; to make no further amendment or any supplement
to the Registration Statement, the Preliminary Prospectus, Prospectus or the
Remarketing Materials which shall be reasonably disapproved by the Remarketing
Agent promptly after reasonable notice thereof; to advise the Remarketing Agent,
promptly after any of them receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective or
any supplement to the Preliminary Prospectus or the Prospectus or any amended
Prospectus has been filed (except for periodic filings with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act) and to
furnish the Remarketing Agent with copies thereof; to file within the time
periods prescribed by the Exchange Act all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of the Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of Remarketed Trust Preferred
Securities; to advise the Remarketing Agent, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of the Prospectus, of the suspension of the
qualification of the Remarketed Trust Preferred Securities for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement, the Preliminary Prospectus, the
Prospectus or the Remarketing Materials or for additional information; and, in
the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or any Prospectus or the
Remarketing Materials or suspending any such qualification, to use promptly its
best efforts to obtain the withdrawal of such order.
(b) To furnish promptly to the Remarketing Agent and counsel for the
Remarketing Agent a conformed copy of the Registration Statement as originally
filed with the Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith.
(c) Prior to 10:00 a.m., New York City time, on the Business Day (as
defined in the Purchase Contract Agreement) next succeeding the date of this
Agreement and from time to time, to deliver promptly to the Remarketing Agent in
New York City such number of the following documents as the Remarketing Agent
shall reasonably request: (i) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in each case
excluding exhibits other than this Agreement, the Trust Agreement, the Purchase
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Contract Agreement and the Indenture), (ii) the Preliminary Prospectus, the
Prospectus and any amended or supplemented Preliminary Prospectus or Prospectus,
(iii) any document incorporated by reference in the Preliminary Prospectus,
Prospectus and the Remarketing Materials (excluding exhibits thereto) and (iv)
any Remarketing Materials; and, if the delivery of a prospectus is required at
any time in connection with the Remarketing and if at such time any event shall
have occurred as a result of which the Preliminary Prospectus or Prospectus or
the Remarketing Materials as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if for any other reason it shall be
necessary during such same period to amend or supplement the Preliminary
Prospectus, Prospectus or Remarketing Materials or to file under the Exchange
Act any document incorporated by reference in the Prospectus in order to comply
with the Securities Act or the Exchange Act, to notify the Remarketing Agent
and, upon its request, to file such document and to prepare and furnish without
charge to the Remarketing Agent and to any dealer in Securities as many copies
as the Remarketing Agent may from time to time reasonably request of an amended
or supplemented Prospectus which will correct such statement or omission or
effect such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement, the Preliminary Prospectus, or the Prospectus or any
supplement to the Preliminary Prospectus or Prospectus that may, in the
reasonable judgment of the Company or the Remarketing Agent, be required by the
Securities Act or requested by the Commission.
(e) Prior to filing with the Commission (i) any amendment to the
Registration Statement or supplement to the Preliminary Prospectus or Prospectus
or any document incorporated by reference in the Prospectus or (ii) any
Preliminary Prospectus or Prospectus pursuant to Rule 424 of the Securities Act,
to furnish a copy thereof to the Remarketing Agent and counsel for the
Remarketing Agent; and not to file any such amendment or supplement until each
of the Remarketing Agent and counsel for the Remarketing Agent shall have had an
opportunity to review and comment on such amendment or supplement; provided,
however, that the foregoing statements in this Section 4(e) shall not apply to
periodic filings with the Commission pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act.
(f) To make generally available to securityholders of the Company
and of the Trust and to deliver to the Remarketing Agent, as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the
Securities Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Securities Act
(including, at the option of the Company, Rule 158 under the Securities Act).
(g) Promptly from time to time to take such action as the
Remarketing Agent may reasonably request to qualify the Remarketed Trust
Preferred Securities and the obligations of the Company under the Notes and the
Guarantee for offering and sale under the securities laws of such jurisdictions
as the Remarketing Agent may reasonably request and to comply with such laws so
as to permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of the Trust
Preferred Securities; provided that in connection therewith, neither the
Company, the LLC nor the Trust shall be required to
10
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction.
Section 5. Conditions to the Remarketing Agent's Obligations. The
obligations of the Remarketing Agent hereunder are subject to the accuracy, on
and as of the date when made, of the representations and warranties of the
Company, the LLC and the Trust, jointly and severally, contained herein, to the
performance by the Company, the LLC and the Trust, jointly and severally, of
their obligations hereunder and to each of the following additional conditions.
The Remarketing Agent may in its sole discretion waive on their behalf
compliance with any conditions to its obligations hereunder.
(a) On the Remarketing Date at 9:30 a.m., New York City time,
PriceWaterhouseCoopers LLP, the independent auditors, or another independent
accounting firm with nationally recognized reputation, that have audited the
consolidated financial statements of the Company, shall have furnished to the
Remarketing Agent a letter or letters, dated the respective dates of delivery
thereof, in form and substance reasonably satisfactory to the Remarketing Agent,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" with respect to certain financial information
contained in the Prospectus and the Remarketing Materials.
(b) No stop order suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of the Company, the
LLC or the trustees of the Trust, shall be contemplated by the Commission.
(c) Subsequent to the execution of this Agreement, there shall not
have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business, properties
or results of operations of the Company and its subsidiaries taken as a whole
which, in the judgment of the Remarketing Agent, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Securities; (ii) any downgrading in
the rating of any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Company (other
than an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any material
suspension or material limitation of trading in securities generally on the New
York Stock Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (iv) any banking moratorium declared
by U.S. Federal or New York authorities or a material disruption in commercial
banking or securities settlement or clearance services in the United States; (v)
any outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial national
or international calamity or emergency; or (vi) any change in financial,
political or economic conditions in the United States or elsewhere, if, in the
judgment of the Remarketing Agent, the effect of any event or change referred to
in clauses (v) or (vi) is so adverse and material as to make it impractical or
inadvisable to proceed with completion of the Remarketing.
11
(d) The Trust Preferred Securities shall have been duly listed on the New York
Stock Exchange.
(e) The Company and the Trust shall have complied with the
provisions of Section 4(c) hereof with respect to the furnishing of a Prospectus
on the Business Day next succeeding the date of this Agreement.
(f) The Remarketing Agent shall have received a certificate, dated
the Remarketing Date, of any vice-president and a principal financial or
accounting officer of the Company in which such officers shall state that, to
the best of their knowledge after reasonable investigation, the representations
and warranties of the Company in this Agreement are true and correct, that the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Remarketing Date,
that 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, to their knowledge, are contemplated by the Commission and
that, subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change in the business, financial
position or results of operations of the Company and its Significant
Subsidiaries except as set forth or contemplated by the Prospectus or as
described in such certificate.
(g) Xxxxxx X. XxXxxxxx, general counsel of the Company (or her
successor), shall have furnished to the Remarketing Agent her written opinion,
dated the Remarketing Date, in form and substance reasonably satisfactory to the
Remarketing Agent, to the effect that:
(i) The Company is duly incorporated and is validly existing
as a corporation and in good standing under the laws of the State of Florida,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus and to enter into and perform its
obligations under the .
(ii) The execution, delivery and performance of the
Transaction Agreements and the and the issuance and sale
of the Securities and compliance with the terms and provisions thereof did not
and will not, as the case may be, breach or violate of any of the terms and
provisions of or constitute a default under (a) any order known to such counsel
of any governmental agency having jurisdiction over the Company or any of its
properties or any agreement or instrument known to such counsel to which the
Company is a party or by which the Company is bound or to which any of the
properties of the Company is subject, except as would not, individually or in
the aggregate, cause a material adverse change in the financial position,
shareholders' equity or results of operations of the Company or affect the
validity of the Securities or the legal authority of the Company to comply with
the terms of the Securities or the Transaction Agreements or (B) the Articles of
Incorporation or by-laws of the Company, and the Company has full power and
authority to authorize and cause the Trust Preferred Securities to be remarketed
as contemplated by this Agreement.
(iii) Each of the Transaction Agreements has been duly
authorized, executed and delivered by the Company and, in the case of the Notes,
assuming due authentication and valid delivery by the Indenture Trustee, in the
case of the Indenture, assuming due authentication and valid delivery by the
Indenture Trustee, in the case of the Guarantee,
12
assuming valid execution and delivery by the Guarantee Trustee, and, in the case
of the LLC Agreement, assuming valid execution and delivery by the Trust,
constitutes a valid and binding agreement of the Company enforceable against the
Company in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing.
(iv) The has been duly authorized,
executed and delivered by the Company.
(v) No filing, registration, or qualification with, or
authorization, approval, consent, license, order or decree of, the Florida
Public Service Commission is necessary or required in connection with the due
authorization, execution, delivery and performance by either of the Company, the
Trust or the LLC of its obligations under this Agreement and the transactions
contemplated by this agreement and the Transaction Agreements, except such as
have been obtained or made.
(vi) There are no preemptive or other rights to subscribe
for or to purchase, nor any restriction upon the voting or transfer of, any
Securities issuable pursuant to the Company's Articles of Incorporation or
by-laws or any agreement or other instrument known to such counsel, except as
such preemptive or other rights and/or restrictions are expected with respect to
the transactions contemplated by the Purchase Contract Agreement, the Pledge
Agreement, the LLC Agreement and the Trust Agreement.
In giving such opinion, such counsel may limit her opinion to the
laws of the State of Florida, and such counsel may rely as to all matters
governed by the laws of jurisdictions other than the laws of the State of
Florida, upon the opinion of counsel satisfactory to the Remarketing Agent.
In addition to the matters set forth above, such opinion shall also
include a statement to the effect that no facts have come to her attention that
lead her to believe that (i) such Registration Statement, at the time such
Registration Statement became effective, or any amendment or supplement to the
Registration Statement as of its effectiveness date, contained an 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, or
(ii) that the Prospectus, as of its date and the Remarketing Date, contained an
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, except that she need express no comment
with respect to the financial statements, schedules and other financial and
statistical data included or incorporated by reference in the Registration
Statement or Prospectus or with respect to the Form T-1.
Notwithstanding of any of the forgoing, if the securities subject to the
Remarketing are the LLC Preferred Securities or the Notes, such counsel shall
have furnished to the Remarketing Agent her written opinion, dated the
Remarketing Date, in form and substance reasonably satisfactory to the
Remarketing Agent, to the effect set forth above, with such modifications as
13
may be appropriate to reflect the fact that such opinion is given in connection
with the Remarketing of the LLC Preferred Securities or the Notes, as the case
may be.
(h) Xxxxxx & Dodge LLP, counsel to the Company, shall have furnished
to the Remarketing Agent its written opinion, dated the Remarketing Date, in
form and substance reasonably satisfactory to Remarketing Agent, to the effect
that:
(i) The Securities and the Transaction Agreements conform or
will conform in all material respects to the descriptions thereof contained in
the Prospectus.
(ii) [IF A TAX SECTION IS IN THE PROSPECTUS, INCLUDE THIS
PARAGRAPH AND MODIFY AS APPROPRIATE. Based upon current law, the assumptions and
facts stated or referred to in the Final Prospectus Supplement (including under
the caption "U.S. Federal Income Tax Consequences") and certain representations
the Remarketing Agent and TECO Energy, Inc. have provided to us and subject to
the qualifications and limitations set forth in the Final Prospectus Supplement
(including under the caption "U.S. Federal Income Tax Consequences"), the
statements set forth in the Final Prospectus Supplement under the caption "U.S.
Federal Income Tax Consequences," insofar as they purport to constitute
summaries of United States federal income tax laws and regulations or legal
conclusions with respect thereto (but not insofar as they relate to
expectations, intentions or determinations), constitute accurate summaries of
the matters described under such caption in all material respects.]
(iii) The Sixth Supplemental Indenture, the Trust Agreement
and the Guarantee Agreement have been duly qualified under the Trust Indenture
Act.
(iv) The Registration Statement has become effective under
the Securities Act, and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement or any part thereof
has been issued under the Securities Act and no proceedings for that purpose
have been instituted or are pending or threatened by the Commission.
(v) The Registration Statement relating to the Securities,
as of its effective date, the Prospectus, as of its date, and each amendment or
supplement thereto, as of their respective effective or issue dates (but
excluding the financial statements and schedules and other financial and
statistical data and the Form T-1 included or incorporated by reference therein,
as to which such counsel need express no opinion) complied as to form in all
material respects with the Securities Act, the Trust Indenture Act and the
Exchange Act, as applicable.
(vi) No filing, registration, or qualification with, or
authorization, approval, consent, license, order or decree of, any court or
governmental agency or body is necessary or required in connection with the due
authorization, execution, delivery and performance by the Company, the Trust or
the LLC of its obligations under this Agreement and the transactions
contemplated by this agreement and the Transaction Agreements except such as
have been obtained or made under the Act, the Rules and Regulations thereunder,
and the Trust Indenture Act or such as may be required under state securities
laws as to which such counsel expresses no opinion.
14
(vii) The Company is exempt from the provisions of the Public
Utility Holding Company Act, except Section 9(a)(2) thereof relating to the
acquisition of securities of other public utility companies.
(i) [Xxxxxxxx, Xxxxxx & Finger, P.A.] shall have furnished to the
Remarketing Agent its written opinion, as special Delaware counsel to the
Company, the LLC and the Trust, addressed to the Remarketing Agent and dated
such Remarketing Date, in form and substance satisfactory to the Remarketing
Agent, to the effect that:
(i) The LLC has been duly formed and is validly existing in
good standing as a limited liability company under the Delaware LLC Act. Under
the LLC Act and the LLC Agreement, the LLC has the power and authority to own
property and to conduct its business as described in the Prospectus and to enter
into and perform its obligations under this Agreement and the LLC Securities.
(ii) The LLC Securities have been duly authorized for
issuance by the LLC Agreement and have been validly issued and are fully paid
and non-assessable limited liability company interests in the LLC. The holders
of the LLC Securities (the "LLC Securityholders"), as members of the LLC, shall
not be obligated personally for any of the debts, obligations or liabilities of
the LLC, whether arising in contract, tort or otherwise solely by reason of
being a member of the LLC, except as the LLC Securityholders may be obligated to
make payments provided for in the LLC Agreement and to repay any funds
wrongfully distributed to them.
(iii) Assuming the LLC Agreement has been duly authorized,
executed and delivered by the Company, the LLC Agreement constitutes a valid and
binding obligation of the LLC and is enforceable against the LLC in accordance
with its terms, except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation,
fraudulent conveyance or transfer and other similar laws relating to or
affecting the rights and remedies of creditors generally, principles of equity,
including applicable law relating to fiduciary duties (regardless of whether
considered and applied in a proceeding in equity or at law), and the effect of
applicable public policy on the enforceability of provisions relating to
indemnification or contribution.
(iv) The issuance by the LLC of the LLC Securities, the
purchase by the LLC of the Notes, and the consummation by the LLC of the
transactions contemplated by the do not violate any of the
provisions of the LLC Agreement or any applicable Delaware law or administrative
regulation.
(v) Assuming that the LLC derives no income from or
connected with sources within the State of Delaware and has no assets,
activities (other than the filing of documents with the Secretary of State of
Delaware) or employees in the state of Delaware, no filing with, or
authorization, approval consent, license, order, registration, qualification or
decree of, or with any Delaware court or Delaware governmental authority or
agency (other than as may be required under the securities or blue sky laws of
the State of Delaware, as to which such counsel need express no opinion) is
necessary or required to be obtained by the LLC solely in
15
connection with the due authorization, execution and delivery by the LLC of the
or the offering, issuance, exchange or delivery of the LLC
Preferred Securities to the Trust.
(vi) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Business Trust Act.
Under the Delaware Business Trust Act and the Trust Agreement, the Trust has the
power and authority to own property and to conduct its business as described in
the Prospectus and to enter into and perform its obligations under this
Agreement and the Trust Securities.
(vii) The Trust Preferred Securities have been duly
authorized by the Trust and have been validly issued and (subject to the terms
in this paragraph) are fully paid and are non-assessable undivided beneficial
interests in the assets of the Trust, the holders of the Trust Preferred
Securities are entitled to the benefits of the Trust Agreement (subject to the
limitations set forth in clause (v) below) and will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware (such counsel may note that the holders of Trust Preferred
Securities will be subject to the withholding provisions of the Trust Agreement
and will be required to make payment or provide indemnity or security as set
forth in the Trust Agreement). The Trust Preferred Securities are the only
interests in the assets of the Trust authorized to be issued by the Trust.
(viii) Assuming the Trust Agreement has been duly authorized
by the Company and has been duly executed and delivered by the Company, and
assuming due authorization, execution and delivery of the Trust Agreement by the
Property Trustee and the Delaware Trustee, the Trust Agreement constitutes a
valid and binding obligation of the Company and the LLC, and is enforceable
against the Company and the LLC, in accordance with its terms, except to the
extent that enforcement thereof may be limited by bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation, fraudulent conveyance or
transfer and other similar laws relating to or affecting the rights and remedies
of creditors generally, principles of equity, including applicable law relating
to fiduciary duties (regardless of whether considered and applied in a
proceeding in equity or at law), and the effect of applicable public policy on
the enforceability of provisions relating to indemnification or contribution.
(ix) The issuance by the Trust of the Trust Preferred
Securities, the purchase by the Trust of the LLC Preferred Securities and the
consummation by the Trust of the transactions contemplated by the do not violate any of the provisions of the Trust Agreement or any
applicable Delaware law or administrative regulation.
(x) Assuming that the Trust derives no income from or
connected with sources within the State of Delaware and has no assets,
activities (other than having a Delaware Trustee as required by the Delaware
Business Trust Act and the filing of documents with the Secretary of State of
Delaware) or employees in the state of Delaware, no filing with, or
authorization, approval consent, license, order, registration, qualification or
decree of, or with any Delaware court or Delaware governmental authority or
agency (other than as may be required under the securities or blue sky laws of
the State of Delaware, as to which such counsel need express no opinion) is
necessary or required to be obtained by the Trust solely in
16
connection with the due authorization, execution and delivery by the Trust of
the or the offering, issuance, exchange or delivery of the
Trust Preferred Securities.
(j) [Xxxxx, Xxxxxx & Xxxxxx, LLP] shall have furnished to the
Remarketing Agent its written opinion, as counsel to The Bank of New York, as
Property Trustee, Guarantee Trustee and Indenture Trustee, addressed to the
Remarketing Agent and dated the Remarketing Date, in form and substance
satisfactory to the Remarketing Agent, to the effect that:
(i) Each of the Property Trustee, the Guarantee Trustee and
the Indenture Trustee, is duly incorporated as a New York banking corporation
with all necessary power and authority to execute and deliver and perform their
respective obligations under the terms of the Indenture, the Trust Agreement and
the Guarantee Agreement.
(ii) The execution, delivery and performance by the Property
Trustee of the Trust Agreement, the execution, delivery and performance by the
Guarantee Trustee of the Guarantee Agreement and the execution, delivery and
performance by the Indenture Trustee of the Indenture have been duly authorized
by all necessary corporate action on the part of the Property Trustee, the
Guarantee Trustee and the Indenture Trustee, respectively. The Trust Agreement
has been duly executed and delivered by the Property Trustee, the Guarantee
Agreement has been duly executed and delivered by the Guarantee Trustee and the
Indenture has been duly executed and delivered by the Indenture Trustee, and
each constitutes the valid and binding agreement of the Property Trustee, the
Guarantee Trustee and the Indenture Trustee, respectively, enforceable against
the Property Trustee, the Guarantee Trustee and the Indenture Trustee,
respectively, in accordance with their terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing.
(iii) The execution, delivery and performance of the Trust
Agreement, the Guarantee Agreement and the Indenture by the Property Trustee,
the Guarantee Trustee and the Indenture Trustee, respectively, do not conflict
with or constitute a breach of the charter or by-laws of the Property Trustee,
the Guarantee Trustee and the Indenture Trustee, respectively.
(iv) No consent, approval or authorization of, or
registration with or notice to, any New York or federal banking authority is
required for the execution, delivery or performance by the Property Trustee, the
Guarantee Trustee and the Indenture Trustee of the Trust Agreement, the
Guarantee Agreement and the Indenture, respectively.
(k) [Xxxxxxxx, Xxxxxx & Finger, P.A.] shall have furnished to the
Remarketing Agent its written opinion, with respect to The Bank of New York
(Delaware), as Delaware Trustee, addressed to the Remarketing Agent and dated
the Remarketing Date, in form and substance satisfactory to the Remarketing
Agent, to the effect that:
(i) The Delaware Trustee has been duly incorporated and is
validly existing as a banking corporation in good standing under the laws of the
State of Delaware with all necessary corporate power and authority to execute
and deliver, and to carry out and perform its obligations under, the terms of
the Trust Agreement.
17
(ii) The execution, delivery and performance by the Delaware
Trustee of the Trust Agreement have been duly authorized by all necessary
corporate action on the part of the Delaware Trustee. The Trust Agreement
constitutes the valid and binding agreement of the Delaware Trustee, and is
enforceable against the Delaware Trustee in accordance with its terms, subject
to bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance or transfer and other similar laws relating
to or affecting the rights and remedies of creditors generally, principles of
equity, including applicable law relating to fiduciary duties (regardless of
whether considered and applied in a proceeding in equity or at law), and the
effect of applicable public policy on the enforceability of provisions relating
to indemnification or contribution.
(iii) The execution, delivery and performance of the Trust
Agreement by the Delaware Trustee do not conflict with or constitute a breach of
the charter or by-laws of the Delaware Trustee.
(iv) No consent, approval or authorization of, or
registration with or notice to, any Delaware or federal banking authority is
required for the execution, delivery or performance by the Delaware Trustee of
the Trust Agreement.
(l) [Xxxxx Xxxxxx & Xxxxxx, LLP] shall have furnished to the
Remarketing Agent its written opinion, as counsel to The Bank of New York, as
Purchase Contract Agent, addressed to the Remarketing Agent and dated the
Remarketing Date, in form and substance satisfactory to the Remarketing Agent,
to the effect that:
(i) The Purchase Contract Agent is duly incorporated as a
New York banking corporation with all necessary power and authority to execute,
deliver and perform its obligations under the Purchase Contract Agreement and
the Pledge Agreement.
(ii) The execution, delivery and performance by the Purchase
Contract Agent of the Purchase Contract Agreement and the Pledge Agreement have
been duly authorized by all necessary corporate action on the part of the
Purchase Contract Agent. The Purchase Contract Agreement and the Pledge
Agreement have been duly executed and delivered by the Purchase Contract Agent,
and constitute the valid and binding obligations of the Purchase Contract Agent,
enforceable against the Purchase Contract Agent in accordance with their terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
(iii) The execution, delivery and performance of the
Purchase Contract Agreement and the Pledge Agreement by the Purchase Contract
Agent does not conflict with or constitute a breach of the charter or by-laws of
the Purchase Contract Agent.
(iv) No consent, approval or authorization of, or
registration with or notice to, any New York or federal banking authority is
required for the execution, delivery or performance by the Purchase Contract
Agent of the Purchase Contract Agreement and the Pledge Agreement.
18
(m) [Xxxxx, Xxxxxx & Xxxxxx, LLP] shall have furnished to the
Remarketing Agent its written opinion, as counsel to The Bank of New York, as
Collateral Agent, Custodial Agent and Securities Intermediary, addressed to the
Remarketing Agent and dated the Remarketing Date, in form and substance
satisfactory to the Remarketing Agent, to the effect that:
(i) Each of the Collateral Agent, Custodial Agent and
Securities Intermediary is duly incorporated as a New York banking corporation
with all necessary power and authority to execute, deliver and perform its
obligations under the Pledge Agreement.
(ii) The execution, delivery and performance by the
Collateral Agent, Custodial Agent and Securities Intermediary Agent of the
Pledge Agreement has been duly authorized by all necessary corporate action on
the part of the Collateral Agent, Custodial Agent and Securities Intermediary.
The Pledge Agreement has been duly executed and delivered by the Collateral
Agent, Custodial Agent and Securities Intermediary, and constitutes the valid
and binding obligations of the Collateral Agent, Custodial Agent and Securities
Intermediary, enforceable against the Collateral Agent, Custodial Agent and
Securities Intermediary in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing.
(iii) The execution, delivery and performance of the Pledge
Agreement by the Collateral Agent, Custodial Agent and Securities Intermediary
does not conflict with or constitute a breach of the charter or bylaws of the
Collateral Agent, Custodial Agent and Securities Intermediary.
(iv) No consent, approval or authorization of, or
registration with or notice to, any state or federal governmental authority or
agency is required for the execution, delivery or performance by the Collateral
Agent, Custodial Agent and Securities Intermediary of the Pledge Agreement.
(n) The LLC, the Trust and the Company will furnish the Remarketing
Agent with such conformed copies of such opinions, certificates, letters and
documents as the Remarketing Agent may reasonably request.
Section 6. Indemnification and Contribution.
(a) The Company, the LLC and the Trust, jointly and severally, will
indemnify and hold harmless the Remarketing Agent, its partners, directors and
officers and each person, if any, who controls the Remarketing Agent within the
meaning of Section 15 of the Securities Act, against any losses, claims, damages
or liabilities, joint or several, to which the Remarketing Agent may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus and any related
Remarketing Materials, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary
19
prospectus supplement and any related Remarketing Materials, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Remarketing Agent for any legal or other
expenses reasonably incurred by the Remarketing Agent in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company, the LLC and the
Trust will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by the Remarketing Agent specifically for use therein; provided,
further, that, this indemnity with respect to the Prospectus or any related
preliminary prospectus or preliminary prospectus supplement shall not inure to
the benefit of the Remarketing Agent (or any person controlling such Remarketing
Agent) from whom the person asserting any such loss, claim, damage or liability
purchased the Remarketed Trust Preferred Securities that are the subject thereof
if the Remarketing Agent did not send or deliver to such person a copy of the
Prospectus (or the Prospectus, as amended or supplemented) excluding documents
incorporated therein by reference at or prior to the confirmation of the sale of
the Remarketed Trust Preferred Securities to such person (but only to the extent
that such loss, claim, damage or liability is finally determined by a court of
competent jurisdiction to arise out of the untrue statement or omission of a
material fact that was corrected in the Prospectus (or the Prospectus, as
amended or supplemented) that was not delivered by the Remarketing Agent at or
prior to confirmation of sale) in any case where such delivery is required by
the Act, the Company has provided to the Remarketing Agent sufficient quantities
of the Prospectus (or the Prospectus, as amended or supplemented) in sufficient
time to enable the Remarketing Agent to deliver to such person a copy of the
Prospectus (or the Prospectus, as amended or supplemented) in a timely manner,
and the untrue statement or omission of a material fact contained in the
Prospectus or any related preliminary prospectus or preliminary prospectus
supplement was corrected in the Prospectus (or the Prospectus, as amended or
supplemented) or the Remarketing Materials.
(b) The Remarketing Agent will indemnify and hold harmless the
Company, the LLC, the Trust, their respective trustees, directors and officers,
and each person, if any who controls the Company, the LLC or the Trust within
the meaning of Section 15 of the Securities Act, against any losses, claims,
damages or liabilities to which the Company, the LLC or the Trust may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement Remarketing Materials related thereto, or any related preliminary
prospectus or preliminary prospectus supplement or Remarketing Materials related
thereto, or arise out of or are based upon the omission or the alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company, the LLC or the Trust by the
Remarketing Agent specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company, the LLC and the Trust in
connection with
20
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Remarketing Agent on the other from the
offering of the remarketed Trust Preferred Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company, the LLC or
the Trust, as the case may be, on the one hand and the Remarketing Agent on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Remarketing Agent on the other shall be deemed to be in the same
proportion as the aggregate stated liquidation amount (if the remarketed
securities are the Trust Preferred Securities or the LLC Preferred Securities)
or the aggregate principal amount (if the remarketed securities are the Notes)
of the remarketed securities bear to the remarketing fees and underwriting
discounts and commissions received by the Remarketing Agent. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company, the LLC
or the Trust and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or
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liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any reasonable legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any action
or claim which is the subject of this subsection (d). 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.
(e) The obligations of the Company, the LLC or the Trust under this
Section shall be in addition to any liability which the Company, the LLC or the
Trust may otherwise have and shall extend, upon the same terms and conditions,
to each person, if any, who controls the Remarketing Agent within the meaning of
the Securities Act; and the obligations of the Remarketing Agent under this
Section shall be in addition to any liability which the Remarketing Agent may
otherwise have and shall extend, upon the same terms and conditions, to each
director or trustee of the Company, the LLC or the Trust, as applicable, to each
officer of the Company, the LLC or the Trust who has signed a Registration
Statement and to each person, if any, who controls the Company, the LLC or the
Trust within the meaning of the Securities Act.
Section 7. Resignation and Removal of the Remarketing Agent. The
Remarketing Agent may resign and be discharged from its duties and obligations
hereunder by giving 60 days' prior written notice to the Company, the Depositary
and the Indenture Trustee. The Company may remove the Remarketing Agent by
giving 60 days' prior written notice to the removed Remarketing Agent, the
Depositary and the Indenture Trustee upon any of (i) the Remarketing Agent
becomes involved as a debtor in a bankruptcy, insolvency or similar proceeding;
(ii) the Remarketing Agent shall be subject to one or more legal restrictions
preventing the performance of its obligations hereunder; or (iii) the
Remarketing Agent shall determine that (A) there has been an occurrence of a
material adverse change of the kind described under Section 5(c) or (B) using
its commercially reasonable efforts, the Remarketing Agent would be unable to
consummate the Remarketing on the terms and in the manner contemplated in the
Prospectus and the Remarketing Materials.
Notwithstanding any other provision in this Section 7, no such
resignation nor any such removal shall become effective until the Company shall
have appointed at least one nationally recognized broker-dealer as successor
Remarketing Agent and such successor Remarketing Agent shall have entered into a
with the Company, in which it shall have agreed to conduct
the Remarketing in accordance with the Remarketing Procedures. The provisions of
Sections 3, 6, and 7 shall survive the resignation or removal of any Remarketing
Agent pursuant to this Agreement.
Section 8. Dealing in the Remarketed Trust Preferred Securities. The
Remarketing Agent, when acting as a Remarketing Agent or in its individual or
any other capacity, may, to the extent permitted by law, buy, sell, hold and
deal in any of the Remarketed Trust Preferred Securities (or LLC Preferred
Securities or Notes, as the case may be, if either the LLC Preferred Securities
or Notes are Remarketed). The Remarketing Agent may exercise any vote or join in
any action which any beneficial owner of Remarketed Trust Preferred Securities
(or LLC Preferred Securities or Notes, as the case may be, if either the LLC
Preferred Securities or Notes are Remarketed) may be entitled to exercise or
take pursuant to the Purchase Contract Agreement, the LLC Agreement, the Trust
Agreement or the Indenture with like effect as if it did
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not act in any capacity hereunder. The Remarketing Agent, in its individual
capacity, either as principal or agent, may also engage in or have an interest
in any financial or other transaction with the Company or the Trust as freely as
if it did not act in any capacity hereunder.
Section 9. Remarketing Agent's Performance; Duty of Care; Supervising
Obligations.
The duties and obligations of the Remarketing Agent shall be
determined solely by the express provisions of this Agreement, the Purchase
Contract Agreement, the LLC Agreement and the Trust Agreement. No implied
covenants or obligations of or against the Remarketing Agent shall be read into
this Agreement, the Purchase Contract Agreement, the LLC Agreement or the Trust
Agreement. In the absence of gross negligence, bad faith or willful misconduct
on the part of the Remarketing Agent, the Remarketing Agent may conclusively
rely upon any document furnished to it, which purports to conform to the
requirements of this Agreement, the Purchase Contract Agreement, the LLC
Agreement or the Trust Agreement as to the truth of the statements expressed in
any of such documents. The Remarketing Agent shall be protected in acting upon
any document or communication reasonably believed by it to have been signed,
presented or made by the proper party or parties. The Remarketing Agent, acting
under this Agreement, shall incur no liability to the Company or to any holder
of Remarketed Trust Preferred Securities in its individual capacity or as
Remarketing Agent for any action or failure to act, on its part in connection
with a Remarketing or otherwise, except if such liability is judicially
determined to have resulted from gross negligence, bad faith or willful
misconduct on its part. The Remarketing Agent may, but shall not be obligated to
purchase Remarketed Trust Preferred Securities (or LLC Preferred Securities or
Notes, as the case may be, if either the LLC Preferred Securities or Notes are
Remarketed) for its own account. If at any time during the term of this
Agreement, any Event of Default under the Indenture, the LLC Agreement or the
Trust Agreement, or any event that with the passage of time or the giving of
notice or both would become on Event of Default under the Indenture, the LLC
Agreement or the Trust Agreement, has occurred and is continuing under the
Indenture, the LLC Agreement or the Trust Agreement, then the obligations and
duties of the Remarketing Agent under this Agreement shall be suspended until
such default or event has been cured. The Company will cause the Indenture
Trustee, the Purchase Contract Agent and the Regular Trustees to give the
Remarketing Agent notice of all such defaults and events of which such trustee,
agent or administrator is aware.
Section 10. Termination. This Agreement shall terminate as to the
Remarketing Agent on the effective date of the resignation or removal of the
Remarketing Agent pursuant to Section 7. In addition, the obligations of the
Remarketing Agent hereunder may be terminated by it by notice given to the
Company prior to 10:00 a.m., New York City time, on the Remarketing Date if,
prior to that time, any of the conditions described in Section 5 are not
satisfied.
Section 11. Notices. Except as otherwise stated herein, all statements,
requests, notices and agreements hereunder shall be in writing, as follows:
(a) if to the Remarketing Agent shall be delivered or sent by mail
or facsimile transmission to ___________;
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(b) if to the Company shall be delivered or sent by mail or
facsimile transmission to the address of the Company, set forth in the
Registration Statement, Attention: Secretary at fax: (000) 000-0000, with a copy
to counsel for the Company, Xxxxxx & Dodge LLP, at the address set forth on the
Registration Statement, at fax: (000) 000-0000.
(c) if to the LLC shall be delivered or sent by mail or facsimile
transmission to 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000.
(d) if to the Trust shall be delivered or sent by mail or facsimile
transmission to: x/x Xxx Xxxx xx Xxx Xxxx, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx Xxxx,
Xxx Xxxx, Xxx Xxxx 00000, Fax: (000) 000-0000.
(e) if the Property Trustee shall be delivered or sent by mail or
facsimile transmission to x/x Xxx Xxxx xx Xxx Xxxx, 000 Xxxxxxx Xxxxxx, 00xx
Xxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Fax: (000) 000-0000;
(f) if to the Indenture Trustee shall be delivered or sent by mail
or facsimile transmission to x/x Xxx Xxxx xx Xxx Xxxx, 000 Xxxxxxx Xxxxxx, 00xx
Xxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Fax: (000) 000-0000; and
(g) if to the Collateral Agent or the Custodial Agent shall be
delivered or sent by mail or facsimile transmission to x/x Xxx Xxxx xx Xxx Xxxx,
000 Xxxxxxx Xxxxxx, 00xx Xxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Fax: (212)
000-0000.
Any such statements, requests, notices or agreements will be made in
writing and shall be deemed to have been given, (i) upon delivery when delivered
by hand, (ii) one Business Day after being sent by a private nationally or
internationally recognized overnight courier service, (iii) when sent by
facsimile, upon receipt of confirmation of transmission.
Section 12. Benefit of Agreement. This Agreement shall be binding
upon, and inure solely to the benefit of, the Remarketing Agent, the Company,
the Trust, the LLC, the officers and directors of the Company and each person
who controls the Company or the Remarketing Agent, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser or
any of the Trust Preferred Securities (or LLC Preferred Securities or Notes, if
the same are remarketed) from the Remarketing Agent shall be deemed a successor
or assign by reason merely of such purchase.
Section 13. Jurisdiction. The Company hereby submits to the
nonexclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
Section 14. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York, without regard to conflicts
of laws principles thereof.
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Section 15. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
Section 16. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
Section 17. Entire Agreement. This Agreement, the Purchase Contract
Agreement, the Pledge Agreement, the LLC Agreement and the Trust Agreement
constitute the only agreements relating to the matters stated herein and therein
with respect to Remarketing.
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If the foregoing correctly sets forth the agreement among the
Company, the LLC, the Trust, the Purchase Contract Agent and the Remarketing
Agent, please indicate your acceptance in the space provided for that purpose
below.
Very truly yours,
TECO ENERGY, INC.
By:________________________________
Name:
Title:
TECO FUNDING COMPANY II, LLC
By:________________________________
Name:
Title:
TECO CAPITAL TRUST II
By:________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Purchase Contract Agent
By:________________________________
Name:
Title:
Accepted:
[NAME OF REMARKETING AGENT]
By:______________________________
Authorized Representative
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