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Exhibit 1.3
EXECUTION COPY
TECO ENERGY, INC.
$400,000,000
7.20 % Notes due 2011
UNDERWRITING AGREEMENT
April 26, 2001
To the Underwriters set forth
on Schedule A hereto
Ladies and Gentlemen:
TECO Energy, Inc., a Florida corporation (the "Company"), proposes
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule A hereto (the "Underwriters") an aggregate
principal amount of $400,000,000 of 7.20 % Notes due 2011 (the "Notes") (as more
fully described in Schedule B hereto). The Notes will be issued pursuant to an
indenture dated as of August 17, 1998 (the "Base Indenture") between the Company
and The Bank of New York, as trustee (the "Indenture Trustee"), as heretofore
amended and as amended and supplemented by the fourth supplemental indenture
dated as of April 30, 2001 (the Base Indenture, as so supplemented and amended,
being referred to herein as the "Indenture").
The Company understands that the Underwriters propose to make a public
offering of the Notes as soon as their representative or representatives (the
"Representatives") deem advisable after this Agreement has been executed and
delivered.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof and as of the
Closing Time referred to in Section 2(b) hereof, and agrees with each
Underwriter, as follows:
(i) Compliance with Registration Requirements. The
Company meets the requirements for use of Form S-3 under the Securities
Act of 1933, as amended (the "1933 Act"). The Company has filed with
the Securities and Exchange Commission (the "Commission") a
registration statement on such Form (File No. 333-50808), which has
become effective (including information, if any, deemed to be part of
the registration statement at the time of effectiveness pursuant to
Rule 430A under the 1933 Act), for the registration under the 1933 Act
of the Notes. Such registration statement meets the requirements set
forth in Rule 415(a)(1)(x) under the 1933 Act and complies in all other
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respects with said Rule, and as amended at the date of this Agreement,
including the exhibits thereto, is hereinafter called the "Registration
Statement". The form of prospectus to be used in connection with the
issuance and sale of the Notes included in such Registration Statement
is hereinafter called the "Basic Prospectus"; the form of prospectus
supplement included in such Registration Statement, or, if the Company
files with the Commission a subsequent prospectus supplement to be used
in connection with the issuance and sale of the Notes in accordance
with Rule 424(b) under the 1933 Act, such subsequent prospectus, is
hereinafter called the "Prospectus Supplement"; and the Basic
Prospectus, as supplemented by the Prospectus Supplement, in the form
in which it shall be filed with the Commission pursuant to Rule 424(b)
is hereinafter called the "Prospectus". Any preliminary form of the
Prospectus which has heretofore been filed pursuant to Rule 424(b) is
hereinafter called the "Preliminary Prospectus". Any reference herein
to the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Securities Exchange Act of 1934, as
amended (the "1934 Act"), on or before the date of this Agreement, or
the issue date of the Basic Prospectus, any Preliminary Prospectus or
the Prospectus, as the case may be; and any reference herein to the
terms "amend," "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
the filing of any document under the 1934 Act after the date of this
Agreement, or the issue date of the Basic Prospectus, any Preliminary
Prospectus or the Prospectus, as the case may be, deemed to be
incorporated therein by reference. 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.
(ii) No Misstatements or Omissions. As of the date hereof,
when the Prospectus is first filed or transmitted for filing pursuant
to Rule 424(b) under the 1933 Act, when, prior to the Closing Time (as
hereinafter defined), any amendment to the Registration Statement
becomes effective (including the filing of any document incorporated by
reference in the Registration Statement), when any amendment or
supplement to the Prospectus is filed with the Commission and at the
Closing Time, (i) the Registration Statement, as then amended as of any
such time, the Prospectus, as then amended or supplemented as of any
such time, and the Indenture will comply in all material respects with
the applicable requirements of the 1933 Act, the Trust Indenture Act of
1939, as amended (the "1939 Act"), and the 1934 Act and the respective
rules and regulations thereunder, and (ii) neither the Registration
Statement, as then amended as of such time, nor the Prospectus, as then
amended or supplemented as of such time, will contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; provided, however, that the Company
makes no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility (Form T-1) under the 1939 Act of the applicable trustees or
(ii) the information contained in or omitted from the Registration
Statement or the Prospectus or any amendment thereof or supplement
thereto in reliance upon and in conformity with information
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furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for use in the Registration
Statement and the Prospectus.
(iii) Status of the Company. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Florida, and has the power and authority
to enter into and perform its obligations under this Agreement and the
Indenture and to own its property and conduct its business as described
in the Prospectus.
(iv) Authorization of Company Agreements. The Notes and
the Indenture (collectively, the "Transaction Documents") have each
been duly authorized by the Company, and, at the Closing Time, will
have been duly executed and delivered by the Company, and, in the case
of the Notes, when validly issued by the Company and validly
authenticated and delivered by the Indenture Trustee, and, in the case
of the Indenture, when validly executed and delivered by the Indenture
Trustee, will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their
respective terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing; the
Indenture has been duly qualified under the 1939 Act; the Notes are
entitled to the benefits of the Indenture; and the Transaction
Documents will conform in all material respects to the descriptions
thereof in the Prospectus.
(v) Authorization of Agreement. This Agreement has been
duly authorized, executed and delivered by the Company.
(vi) Absence of Defaults and Conflicts. Neither the
Company nor any "significant subsidiary" of the Company (as such term
is defined in Rule 1-02 of Regulation S-X (each a "Subsidiary" and,
collectively, the "Subsidiaries") and each of which is listed on
Schedule C hereto) is in violation of its charter, by-laws or other
organizational documents. Neither the Company nor any of its
Subsidiaries is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which the Company or any of
the Subsidiaries is a party or by which any of them may be bound, or to
which any of the property or assets of the Company or any Subsidiary is
subject (collectively, "Agreements and Instruments") except for such
defaults that would not have a material adverse effect on the
condition, financial or otherwise, or in the results of operations or
business affairs of the Company and its subsidiaries, taken as a whole,
whether or not arising in the ordinary course of business (a "Material
Adverse Effect"); and the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated herein
and in the Registration Statement (including the issuance and sale of
the Notes and the use of the proceeds from the sale of the Notes as
described in the Prospectus under the caption "Use of Proceeds") and
compliance by the Company with its obligations hereunder have been duly
authorized by all necessary
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corporate or other action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
Subsidiary pursuant to, the Agreements and Instruments (except for such
conflicts, breaches, defaults, Repayment Events or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor
will such action result in any violation of the provisions of the
charter, by-laws or other organizational documents of the Company or
any Subsidiary or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any Subsidiary or any of their assets, properties or
operations. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company or any Subsidiary.
(vii) Absence of Proceedings. Except as disclosed in the
Prospectus, there are no pending actions, suits or proceedings against
or affecting the Company, any of its subsidiaries or any of their
respective properties that, if determined adversely to the Company or
any of its subsidiaries, would individually or in the aggregate have a
Material Adverse Effect, or would materially and adversely affect the
ability of the Company to perform its obligations under this Agreement,
or which are otherwise material in the context of the sale of the
Notes; and no such actions, suits or proceedings are, to the Company's
knowledge, threatened or contemplated.
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(viii) No Material Adverse Change in Business. Except as
disclosed in the Prospectus, since the date of the latest audited
financial statements included in the Prospectus there has been no
material adverse change in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole.
(ix) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Notes hereunder or the consummation of the transactions
contemplated by this Agreement, except such as have been already
obtained or made or as may be required under the 1933 Act or the rules
and regulations of the Commission thereunder (the "1933 Act
Regulations") or state securities laws.
(x) Subsidiaries. Each of the Subsidiaries 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 to own its properties and to conduct its business
as described in the Registration Statement and Prospectus. All of the
issued shares of capital stock of each of the Subsidiaries have been
duly authorized and validly issued, are fully paid and nonassessable
and are owned directly by the Company or indirectly through a
wholly-owned subsidiary of the Company, free and clear of all liens,
encumbrances and claims.
(xi) Qualification. Each of the Company and the
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.
(xii) Public Utility Holding Company Act. The Company has
filed an appropriate exemption statement pursuant to the provisions of
the Public Utility Holding Company Act of 1935 and is exempt from all
provisions of such Act except Section 9(a)(2) thereof relating to the
acquisition of securities of other public utility companies. The
Company is not subject to the jurisdiction of the Florida Public
Service Commission with respect to the issue and sale of the Notes or
any of the other transactions contemplated by this Agreement.
(xiii) Financial Statements. 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.
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(xiv) Auditors. PricewaterhouseCoopers LLP, who have
certified financial statements of the Company, are independent public
accountants with respect to the Company and its subsidiaries as
required by the 1933 Act and the 1933 Act Regulations.
(xv) Investment Company Act. The Company is not, and upon
the issuance and sale of the Notes as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act").
(xvi) Cuba. The Company and the Subsidiaries have complied
with all provisions of Section 517.075, Florida Statutes relating to
doing business with the Government of Cuba or with any person or
affiliate located in Cuba.
(xvii) Officer's Certificates. Any certificate signed by any
officer of the Company or any of its Subsidiaries delivered to the
Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to
the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS, CLOSING.
(a) Notes. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter and each Underwriter, severally and
not jointly, agrees to purchase from the Company, at the price and with the
terms set forth in Schedule B, the principal amount of Notes set forth in
Schedule A opposite the name of such Underwriter, plus any additional amount of
Notes which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of,
the Notes shall be made at the offices of the Representatives, or at such other
place as shall be agreed upon by the Representatives and the Company at 9:00
A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by the
Representatives and the Company (such time and date of payment and delivery
being herein called the "Closing Time").
Payment shall be made by the Representatives to the Company by wire
transfer of immediately available or next day funds as set forth in Schedule B
to a bank account(s) designated by the Company against delivery to the
Representatives for the respective accounts of the Underwriters of the Notes to
be purchased by them. It is understood that each Underwriter has authorized the
Representatives, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Notes which it has agreed to purchase.
(c) Denominations; Registration. The Notes shall be in such
denominations and registered in such names as the Representatives may request in
writing at least one full business day before the Closing Time. The Notes will
be made available for examination and packaging
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by the Representatives in The City of New York not later than 10:00 A.M.
(Eastern time) on the business day prior to the Closing Time.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each Underwriter
as follows:
(a) Compliance with Securities Regulations and Commission
Requests. Subject to Section 3(b), it will prepare the Prospectus in a form
approved by the Representatives and file such Prospectus (pursuant to Rule
424(b) within the time prescribed under Rule 424(b) or Rule 430(A)(3), as the
case may be) and will notify the Representatives immediately, and confirm the
notice in writing, (i) when any post-effective amendment to the Registration
Statement shall become effective, or any supplement to the Prospectus or any
amended Prospectus shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus or
for additional information, and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Notes for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. It will promptly effect the filings necessary pursuant to Rule
424(b) and will take such steps as it deems necessary to ascertain promptly
whether the form of prospectus transmitted for filing under Rule 424(b) was
received for filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. It will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
withdrawal thereof at the earliest possible moment.
(b) Filing of Amendments. It will give the Representatives notice
of its intention to file or prepare any amendment to the Registration Statement
or any amendment, supplement or revision to the Prospectus, whether pursuant to
the 1933 Act, the 1934 Act or otherwise, will furnish the Representatives with
copies of any such documents a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file or use any such document to
which the Representatives or counsel for the Underwriters shall reasonably
object.
(c) Delivery of Registration Statements. It has furnished or will
deliver to the Representatives and counsel for the Underwriters, without charge,
one originally signed copy of the Registration Statement as originally filed and
of each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and one originally signed copy of all consents and
certificates of experts, and will also deliver to the Representatives, without
charge, a conformed copy of the Registration Statement as originally filed and
of each amendment thereto (without exhibits) for each of the Underwriters. The
copies of the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval System ("▇▇▇▇▇"), except to the extent permitted by Regulation
S-T.
(d) Delivery of Prospectuses. It has delivered to each
Underwriter, without charge, as many copies of each Preliminary Prospectus
relating to the Notes as such Underwriter
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reasonably requested, and it hereby consents to the use of such copies for
purposes permitted by the 1933 Act. It will furnish to each Underwriter, without
charge, during the period when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as
amended or supplemented) as such Underwriter may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. It will comply with
the 1933 Act and the 1933 Act Regulations and the 1934 Act and the rules and
regulations thereunder (the "1934 Act Regulations") so as to permit the
completion of the distribution of the Notes as contemplated in this Agreement
and in the Prospectus. If at any time when a prospectus is required by the 1933
Act to be delivered in connection with sales of the Notes, any event shall occur
or condition shall exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or for the Company, to amend the Registration
Statement or amend or supplement the Prospectus in order that the Prospectus
will not include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at any
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, it will promptly prepare and file with the Commission, subject
to Section 3(b), such amendment or supplement as may be necessary to correct
such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and it will furnish to the
Underwriters such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. It will use its best efforts, in
cooperation with the Underwriters, to qualify the Notes for offering and sale
under the applicable securities laws of such states and other jurisdictions
(domestic or foreign) as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the
effective date of the Registration Statement; provided, however, that it shall
not be obligated to file any general consent to service of process or to qualify
as a foreign corporation or as a dealer in securities in any jurisdiction in
which it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so subject. In
each jurisdiction in which the Notes have been so qualified, it will file such
statements and reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for a period of not less than one year
from the effective date of the Registration Statement.
(g) Rule 158. It will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. It will cause the net proceeds received by it
from the sale of the Notes to be used in the manner specified in the Prospectus
under "Use of Proceeds".
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(i) Restriction on Sale of Notes. During the period of thirty (30)
days following the Closing Time, it will not, without the prior written consent
of Chase Securities Inc. on behalf of the Underwriters, sell or contract to sell
or announce the offering of, any securities of the Company with characteristics
and terms similar to those of the Notes, except that, no earlier than five (5)
days following the Closing Time, the Company may sell or contract to sell or
announce the offering of notes with stated maturities of one year or less.
(j) Reporting Requirements. During the period when the Prospectus
is required to be delivered under the 1933 Act or the 1934 Act, the Company will
file or cause to be filed all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and
the 1934 Act Regulations.
SECTION 4. PAYMENT OF EXPENSES.
(a) Expenses. The Company will pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits and the Forms T-1) as originally
filed and of each amendment thereto, (ii) the printing and reproduction of this
Agreement, the Indenture and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the Notes,
(iii) the preparation, issuance and delivery of the Notes to the Underwriters,
including any transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Notes to the Underwriters, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors, (v) the
qualification of the Notes under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith (which
fees and disbursements of counsel for the Underwriters shall not exceed $5,000),
(vi) the printing and delivery to the Underwriters of copies of each Preliminary
Prospectus and of the Prospectus and any amendments or supplements thereto,
(vii) the fees and expenses of the Indenture Trustee, including the fees and
disbursements of counsel for the trustees in connection with the Indenture and
the Notes, (viii) any fees payable in connection with the rating of the Notes,
and (ix) the fees and expenses incident to the performance of the Company's
other obligations hereunder.
(b) Termination of Agreement. If this Agreement is terminated by
the Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1(a) hereof,
to the performance by the Company of its covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Prospectus shall
have been filed with the Commission pursuant to Rule 424(b) within the
applicable time period prescribed for such filing by the 1933 Act Regulations
and in accordance with Section 3(a) hereof; and no stop
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order suspending the effectiveness of the Registration Statement or any
amendment thereto shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission.
(b) Opinions of Counsel for the Company. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of (i) ▇▇▇▇▇▇ & Dodge LLP, outside counsel for the Company, to the effect
set forth in Exhibit A-1 hereto and (ii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., Vice
President-General Counsel of the Company, to the effect set forth in Exhibit A-2
hereto, each in form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters and addressed to the Underwriters. In giving such opinion such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of Florida and the federal law of the United States,
upon the opinions of counsel satisfactory to the Representatives. Such counsel
may also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company and the Subsidiaries, certificates of representatives of the applicable
trustees and certificates of public officials. In rendering its opinion, ▇▇▇▇▇▇
& Dodge LLP may rely as to matters of Florida law upon the opinion of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, Esq.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Ropes & ▇▇▇▇, the counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters and
addressed to the Underwriters with respect to such matters as the
Representatives may reasonably request. In giving such opinion such counsel may
rely, as to all matters governed by the laws of jurisdictions other than the
federal law of the United States and the laws of the State of New York, upon the
opinions of counsel satisfactory to the Representatives. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Company and
the Subsidiaries, certificates of representatives of the applicable trustees and
certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the results of operations or business
affairs of the Company and its Subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the President or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of Closing Time, to the effect that (i) there has been
no such material adverse change, (ii) the representations and warranties in
Section 1(a) hereof are true and correct with the same force and effect as
though expressly made at and as of Closing Time, (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or are, to the knowledge of
such officers, contemplated by the Commission.
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(e) Accountant's Comfort Letter. At the time of the execution of
this Agreement, the Representatives shall have received from the Company's
independent public accountants a letter dated such date, in form and substance
satisfactory to the Representatives, together with signed or reproduced copies
of such letter for each of the other Underwriters and addressed to the
Underwriters 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 the
Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the
Representatives shall have received from the Company's independent public
accountants a letter, dated as of Closing Time, together with signed or
reproduced copies of such letter for each of the other Underwriters and
addressed to the Underwriters, to the effect that they reaffirm the statements
made in the letter furnished pursuant to subsection (e) of this Section, except
that the specified date referred to shall be a date not more than three business
days prior to Closing Time.
(g) Maintenance of Rating. At Closing Time, the Notes shall be
rated by each of ▇▇▇▇▇'▇ Investors Service, Inc., Standard & Poor's Ratings
Services, a division of The McGraw Hill Companies, Inc. and Fitch, Inc. as set
forth in Schedule B hereto. Since the date of this Agreement, there shall not
have occurred a downgrading in the rating assigned to the Notes or any of the
Company's debt securities by any "nationally recognized statistical rating
agency," as that term is defined by the Commission for purposes of Rule
436(g)(2) under the 1933 Act, and no such organization shall have publicly
announced that it has under surveillance or review its rating of the Notes or
any of the Company's other debt securities.
(h) Additional Documents. At Closing Time counsel for the
Underwriters shall have been furnished with such documents and opinions as they
may require for the purpose of enabling them to pass upon the issuance and sale
of the Notes as herein contemplated, or in order to evidence the accuracy of any
of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Notes as herein contemplated shall
be satisfactory in form and substance to the Representatives and counsel for the
Underwriters.
(i) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representatives by notice to the Company at
any time at or prior to Closing Time and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) Indemnification of Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
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(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any Preliminary Prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company (which
consent shall not be unreasonably withheld, delayed or conditioned);
and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Representatives), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that (i) this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives expressly for use in the
Registration Statement (or any amendment thereto) or any Preliminary Prospectus
or the Prospectus (or any amendment or supplement thereto) and (ii) such
indemnity with respect to any Preliminary Prospectus or the Prospectus shall not
inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, liability, claim,
damage or expense purchased the Notes which are the subject thereof if such
Underwriter did not send or deliver to such person a copy of the Prospectus (or
the Prospectus, as amended or supplemented) excluding documents incorporated
therein by reference at or prior to the confirmation of the sale of the Notes to
such person in any case where such delivery is required by the 1933 Act and the
untrue statement or omission of a material fact contained in any Preliminary
Prospectus or the Prospectus was corrected in the Prospectus (or the Prospectus,
as amended or supplemented). This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Indemnification of the Company, Directors and Officers. Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act
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against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or any
Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such Underwriter through the Representatives
specifically for use in the Registration Statement (or any amendment thereto) or
such Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Actions against Parties, Notification. Promptly after receipt
by an indemnified party under this Section 6 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 this Section 6, notify the
indemnifying party in writing 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 this Section 6. 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 elect by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party; provided, however, that if
the defendants (including impleaded parties) in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it or
other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 6 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof (other than the reasonable costs of investigation)
unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) representing the indemnified
parties), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party.
(d) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such
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settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
SECTION 7. CONTRIBUTION. If the indemnification provided for in Section 6 hereof
is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Notes
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Notes
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Notes pursuant to
this Agreement (before deducting expenses) received by the Company and the total
underwriting discount received by the Underwriters, in each case as set forth on
the cover of the Prospectus, bear to the aggregate public offering price of the
Notes as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by an Underwriter in writing through the
Representatives and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Notes underwritten by it and distributed to the public were
offered to the public exceeds the amount of
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any damages which such Underwriter has otherwise been required to pay by reason
of any such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the principal amount of Notes set forth opposite their respective
names in Schedule A hereto and not joint.
SECTION 8. SURVIVAL.
The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company and the Underwriters contained in this
Agreement or made by or on behalf of the Company or the Underwriters pursuant to
this Agreement or any certificate delivered pursuant hereto shall survive the
delivery of and payment for the Notes to the Underwriters and shall remain in
full force and effect, regardless of any investigation made by or on behalf of
any of them or any of their respective affiliates, officers, directors,
employees, representatives, agents or controlling persons.
SECTION 9. TERMINATION OF AGREEMENT.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
results of operations, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis the effect of which is such as to make it, in the judgment of
the Representatives, impracticable to market the Notes or to enforce contracts
for the sale of the Notes, or (iii) if trading in any securities of the Company
has been suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the American Stock Exchange or the New York
Stock Exchange or in the Nasdaq National Market has been suspended or materially
limited (other than to provide for an orderly market), or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either Federal or New York authorities.
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(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided, further that
Sections 1, 6, 7 and 8 shall survive such termination and remain in full force
and effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of the
Underwriters shall fail at Closing Time to purchase the Notes which it or they
are obligated to purchase under this Agreement (the "Defaulted Securities"), the
Representatives shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such principal amounts as may be agreed upon and upon the terms
herein set forth; if, however, the Representatives shall not have completed such
arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of the Defaulted Securities
does not exceed 10% of the aggregate principal amount of the Notes to be
purchased on such date, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of the Defaulted Securities
exceeds 10% of the aggregate principal amount of the Notes to be purchased on
such date, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any underwriter
from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement either (i) the Representatives or (ii) the Company shall have
the right to postpone Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to the Representatives at the addresses set forth on Schedule B;
notices to the Company shall be directed to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Secretary.
SECTION 12. PARTIES. This Agreement shall each inure to the benefit of and be
binding upon the Underwriters, the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters,
the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any
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provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the
Underwriters, the Company and their respective successors, and said controlling
persons and officers, directors and their heirs and legal representatives, and
for the benefit of no other person, firm or corporation. No purchaser of Notes
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. UNDERWRITERS' INFORMATION. The parties hereto acknowledge and agree
that the only information provided by any Underwriter to the Company through the
Representatives specifically for use in the Registration Statement or Prospectus
shall be the statements contained in the third, seventh and ninth paragraphs
under the heading "Underwriting" in the Prospectus.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. EFFECT OF HEADINGS. The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
SECTION 16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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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 the Underwriters.
Very truly yours,
TECO ENERGY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President - Finance
and Chief Financial Officer
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The foregoing Agreement is
hereby confirmed and accepted as
of the date first written above.
CHASE SECURITIES INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Authorized Signatory
For themselves and the other Underwriters named in Schedule A to the foregoing
Agreement
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SCHEDULE A
UNDERWRITER PRINCIPAL AMOUNT
----------- ----------------
Chase Securities Inc..................................... $200,000,000
BNY Capital Markets, Inc................................. 66,666,666.67
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated....... 66,666,666.67
SunTrust Equitable Securities Corporation................ 66,666,666.67
Total.............................................. $400,000,000
21
SCHEDULE B
TITLE: 7.20 % Notes due 2011
AGGREGATE PRINCIPAL AMOUNT: $400,000,000
INTEREST PAYMENT DATES: May 1 and November 1 of each year, beginning
November 1, 2001.
MATURITY: May 1, 2011
OPTIONAL REDEMPTION: The Notes will be redeemable, at the option of the Company,
in whole or in part from time to time, at the redemption prices described in the
Prospectus under the heading "Description of the Notes -- Optional Redemption".
The Notes may not be redeemed at any time at the option of the holders.
RATING: ▇▇▇▇▇'▇ Investors Service, Inc.: A3
Standard & Poor's Ratings Services: A-
Fitch, Inc.: A
PURCHASE PRICE: 99.083 %
CLOSING: 9:00 A.M. on May 1, 2001, at the offices of ▇▇▇▇▇▇ & Dodge LLP, in
Boston, Massachusetts, in Federal (same day) funds.
SETTLEMENT AND TRADING: Book-Entry Only via the Depository Trust Company
("DTC"). The Notes will trade in DTC's Same Day Funds Settlement System.
NOTICES: Notices to be given to the Underwriters should be directed to the
Representatives as follows:
Chase Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy of any notice pursuant to Section 6(c) to:
1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Legal Department
The respective principal amounts of the Notes to be purchased by each of the
Underwriters are set forth opposite their names in Schedule A hereto.
22
SCHEDULE C
List of Significant Subsidiaries
1. Tampa Electric Company
2. TECO Transport Corporation
3. TECO Diversified, Inc.
4. TECO Power Services Corporation
5. TECO Coal Corporation
23
EXHIBIT A-1
FORM OF OPINION OF COMPANY COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(i)
Capitalized terms used herein shall have the same definitions as set
forth in the underwriting agreement (the "Agreement") to which this Exhibit A-1
is attached.
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Florida and has the corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the
Agreement.
(ii) The Agreement has been duly authorized, executed and
delivered by the Company.
(iii) The Notes and the Indenture (collectively, the
"Transaction Documents") have each been duly authorized, executed and
delivered by the Company, and, in the case of the Notes, when validly
authenticated and delivered by the Indenture Trustee, and, in the case
of the Indenture, when validly executed and delivered by the Indenture
Trustee, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective
terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and
an implied covenant of good faith and fair dealing; and the Notes are
entitled to the benefits of the Indenture.
(iv) The Registration Statement has become effective under
the 1933 Act; any required filing of the Prospectus pursuant to Rule
424(b) has been made in the manner and within the time period required
by Rule 424(b); and, to the best of our knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or threatened by the Commission.
(v) The Registration Statement, the Prospectus, excluding
the documents incorporated by reference therein, and each amendment or
supplement to the Registration Statement and Prospectus, excluding the
documents incorporated by reference therein, as of their respective
effective or issue dates (other than the financial statements and
supporting schedules included therein or omitted therefrom and the
Statements of
24
Eligibility on Form T-1 of the applicable trustees, as to which we
express no opinion) comply as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the ▇▇▇▇
▇▇▇.
(vi) The documents incorporated by reference in the
Prospectus (other than the financial statements and supporting
schedules included therein or omitted therefrom, as to which we express
no opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form at the time of such
effectiveness or filing in all material respects with the requirements
of the 1934 Act and the 1934 Act Regulations.
(vii) To our knowledge, no filing with, or authorization,
approval consent, license, order, registration, qualification or decree
of, any court or governmental authority or agency, domestic or foreign
(other than under the 1933 Act and the 1933 Act Regulations and the
1939 Act, which have been obtained or made, or as may be required under
the securities or blue sky laws of the various states, as to which we
express no opinion) is necessary or required in connection with the due
authorization, execution and delivery of this Agreement or the
Indenture or for the offering, issuance, sale or delivery of the Notes.
(viii) The execution, delivery and performance of this
Agreement and the Transaction Documents and the consummation of the
transactions contemplated in this Agreement and in the Registration
Statement (including the issuance and sale of the Notes and the use of
the proceeds from the sale of the Notes as described in the Prospectus
under the caption "Use Of Proceeds") do not and will not, whether with
or without the giving of notice or lapse of time or both, constitute a
breach of, or default or similar event under or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any Subsidiary pursuant to any written
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or any other agreement or instrument that is listed as an
exhibit to the Company's Form 10-K for the year ended December 31, 2000
or any of the Company's Forms 10-Q and 8-K filed subsequent thereto,
nor will such action result in any violation of the provisions of the
charter or by-laws of the Company or any Subsidiary, or any applicable
law, statute, rule, regulation, judgment, order, writ or decree, known
to us, of any government, government instrumentality or court, domestic
or foreign, having jurisdiction over the Company or any Subsidiary or
any of their respective properties, assets or operations.
(ix) The Company is not and, after giving effect to the
transactions contemplated by this Agreement, will not be an "investment
company" or an entity "controlled" by an "investment company," as such
terms are defined in the 1940 Act.
25
(x) The Indenture has been duly qualified under the ▇▇▇▇
▇▇▇.
(xi) The statements made in the Prospectus under the
captions "Description of the Notes" and "Description of Debt
Securities," insofar as such statements purport to constitute a summary
of the terms of any of the Transaction Documents, constitute accurate
summaries thereof in all material respects.
(xii) The Company is exempt from the provisions of the
Public Utility Holding Company Act of 1935, as amended (the "Public
Utility Holding Company Act"), except Section 9(a)(2) thereof relating
to the acquisition of securities of other public utility companies.
We have participated in conferences with officers and other
representatives of the Company, representatives of the Underwriters and
representatives of the independent public accountants for the Company at which
conferences the contents of the Prospectus and the Registration Statement and
related matters were discussed and, although we have not independently verified,
are not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus (except as otherwise indicated above), we advise you
that, on the basis of the foregoing, no facts have come to our attention that
lead us to believe that the Registration Statement or any amendment thereto, at
the time such Registration Statement or any such amendment became effective,
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 that the Prospectus or any amendment or supplement thereto, as
of its date or as of the date hereof, contained or contains an untrue statement
of a material fact or omitted 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 (it being understood that we express no
comment with respect to the Forms T-1 or the financial statements, including the
notes thereto, or any other financial data found in or derived from the internal
accounting and other records of the Company and its Subsidiaries set forth or
referred to in the Registration Statement or the Prospectus).
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and its Subsidiaries,
representatives of the applicable trustees and public officials. In giving such
opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the State of Florida and the federal law of the United
States, upon the opinions of counsel satisfactory to the Representatives.
26
EXHIBIT A-2
FORM OF OPINION OF COMPANY COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(ii)
Capitalized terms used herein shall have the same definitions as set
forth in the underwriting agreement (the "Agreement") to which this Exhibit A-2
is attached.
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Florida and has the corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement.
(ii) Each Subsidiary set forth on Schedule C to the
Agreement has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, and has the corporate power and authority to own, lease
and operate its properties and to conduct its business as described in
the Prospectus; except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock of each such
Subsidiary has been duly authorized and validly issued, is fully paid
and non-assessable and is owned by the Company, directly or indirectly
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of
such Subsidiary.
(iii) The Agreement has been duly authorized, executed and
delivered by the Company.
(iv) The Notes and the Indenture (collectively, the
"Transaction Documents") have each been duly authorized, executed and
delivered by the Company, and, in the case of the Notes, when validly
authenticated and delivered by the Indenture Trustee, and in the case
of the Indenture, when validly executed and delivered by the Indenture
Trustee, will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their
respective terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing.
27
(v) All descriptions in the Registration Statement of
written contracts and other documents to which the Company or its
Subsidiaries are a party are accurate in all material respects; to the
best of my knowledge, there are no franchises, contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments required
to be described or referred to in the Registration Statement or to be
filed as exhibits thereto other than those described or referred to
therein or filed or incorporated by reference as exhibits thereto, and
the descriptions thereof or references thereto are correct in all
material respects.
(vi) To the best of my knowledge, no filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency, domestic or foreign, including the Florida Public Service
Commission, (other than under the 1933 Act and the 1933 Act Regulations
and the 1939 Act, which have been obtained or made, or as may be
required under the securities or blue sky laws of the various states,
as to which I express no opinion) is necessary or required in
connection with the due authorization, execution and delivery of the
Agreement or the Indenture or for the offering, issuance, sale or
delivery of the Notes.
(vii) The execution, delivery and performance of the
Agreement and the Transaction Documents and the consummation of the
transactions contemplated in the Agreement and in the Registration
Statement (including the issuance and sale of the Notes and the use of
the proceeds from the sale of the Notes as described in the Prospectus
under the caption "Use Of Proceeds") do not and will not, whether with
or without the giving of notice or lapse of time or both, conflict with
or constitute a breach of, or default or similar event under or result
in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any Subsidiary pursuant to any
written contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument that is
listed as an exhibit to the Company's Form 10-K for the year ended
December 31, 2000 or any of the Company's Forms 10-Q and 8-K filed
subsequent thereto, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any Subsidiary,
or any applicable law, statute, rule, regulation, judgment, order, writ
or decree, known to me, of any government, government instrumentality
or court, domestic or foreign, having jurisdiction over the Company or
any Subsidiary or any of their respective properties, assets or
operations.
I, or attorneys under my supervision, have participated in conferences
with officers and other representatives of the Company, representatives of the
Underwriters and representatives of the independent public accountants for the
Company at which conferences the contents of the Prospectus and the Registration
Statement and related matters were discussed and, although I have not
independently verified, am not passing upon and do not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the
Registration Statement
28
or the Prospectus (except as otherwise indicated above), I advise you that, on
the basis of the foregoing, no facts have come to my attention that lead me to
believe that the Registration Statement or any amendment thereto, at the time
such Registration Statement or any such amendment became effective, 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 that the Prospectus or any amendment or supplement thereto, as of its date or
as of the date hereof, contained or contains an untrue statement of a material
fact or omitted 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 (it being understood that I express no comment with respect
to the Forms T-1 or the financial statements, including the notes thereto, or
any other financial data found in or derived from the internal accounting and
other records of the Company and its Subsidiaries set forth or referred to in
the Registration Statement or the Prospectus).
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent she deems proper, on
certificates of responsible officers of the Company and its Subsidiaries,
representatives of the applicable trustees and public officials. In giving such
opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of Florida, upon the opinions of
counsel satisfactory to the Representatives.