1
TAMPA ELECTRIC COMPANY
$250,000,000
6.875% Notes due 2012
UNDERWRITING AGREEMENT
June 20, 2001
To the Underwriters set forth
on Schedule A hereto
Ladies and Gentlemen:
Tampa Electric Company, 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 $250,000,000 of 6.875% Notes due 2012 (the "NOTES") (as more
fully described in SCHEDULE B hereto). The Notes will be issued pursuant to an
indenture dated as of July 1, 1998 (the "BASE INDENTURE") between the Company
and The Bank of New York, as trustee (the "INDENTURE TRUSTEE"), as amended and
supplemented by the third supplemental indenture dated as of June 15, 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 Banc of America Securities LLC (the
"REPRESENTATIVE") deems 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.
333-55090), 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
2
Rule 415(a)(1)(x) under the 1933 Act and complies in all other 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 reference herein to the Registration Statement, the Basic
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 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 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 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 furnished
in writing to the Company by or on behalf of any Underwriter through the
Representative 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,
-2-
3
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. The Company is not in
violation of its charter, by-laws or other organizational documents. The Company
is not 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 is a party or by which the Company may be bound, or to which
any of the property or assets of the Company 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, 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 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 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 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 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
-3-
4
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.
(vii) ABSENCE OF PROCEEDINGS. Except as disclosed in the
Prospectus, there are no pending actions, suits or proceedings against or
affecting the Company, or any of the Company's properties that, if determined
adversely to the Company, 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.
(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.
(ix) ABSENCE OF FURTHER REQUIREMENTS. No filing, registration or
qualification with, or authorization, approval, consent, license, order or
decree of, any court or governmental authority or agency, including the Florida
Public Service Commission, 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) QUALIFICATION. The Company 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.
(xi) 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, its consolidated subsidiaries and its
predecessors at the dates and for the respective periods to which they apply.
(xii) 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.
(xiii) 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").
-4-
5
(xiv) CUBA. The Company and its 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.
(xv) OFFICER'S CERTIFICATES. Any certificate signed by any
officer of the Company delivered to the Representative 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 Representative, or at such other place
as shall be agreed upon by the Representative 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
Representative and the Company (such time and date of payment and delivery being
herein called the "CLOSING TIME").
Payment shall be made by the Representative 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 Representative for
the respective accounts of the Underwriters of the Notes to be purchased by
them. It is understood that each Underwriter has authorized the Representative,
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 Representative may request in
writing at least one full business day before the Closing Time. The Notes will
be made available for examination and packaging by the Representative 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 Representative 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 Representative immediately, and
-5-
6
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 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 Representative 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 Representative 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 Representative or counsel for the Underwriters shall reasonably object.
(c) DELIVERY OF REGISTRATION STATEMENTS. It has furnished or will
deliver to the Representative 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 Representative, 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 Prospectus relating to the Notes as such
Underwriter 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.
-6-
7
(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 Representative 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".
(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 the Representative 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; PROVIDED, HOWEVER, that the Company may
redeem, repurchase or remarket the Remarketed Notes due 2038 issued on July 31,
1998 in the original principal amount of $50,000,000.
-7-
8
(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 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
Representative 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 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.
-8-
9
(i) At Closing Time, the Underwriters shall have received the
favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇ & Dodge LLP, outside
counsel for the Company, satisfactory in form and substance to the
Representative and to the effect that:
(1) 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.
(2) The Agreement has been duly authorized, executed and
delivered by the Company.
(3) The Transaction Documents have each been duly
authorized, executed and delivered by the Company; the Notes, when validly
authenticated and delivered by the Indenture Trustee, will be validly issued;
the Transaction Documents, when validly authenticated, 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.
(4) 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 such counsel's 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.
(5) 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 Eligibility on Form T-1 of
the applicable trustees), comply as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the ▇▇▇▇ ▇▇▇.
(6) The documents incorporated by reference in the
Prospectus (other than the financial statements and supporting schedules
included therein or omitted therefrom) 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.
(7) No filing, registration, or qualification with, or
authorization, approval, consent, license, order, or decree of, any court or
governmental authority
-9-
10
or agency (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 such counsel
expresses 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, except such as have been
already obtained or made.
(8) The execution, delivery and performance by the Company
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 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 (i) the charter or by-laws of the Company, (ii) any applicable
law, statute, rule, or regulation, or (iii) any judgment, order, writ or decree
known to such counsel, of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of its
properties, assets or operations.
(9) 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.
(10) The Indenture has been duly qualified under the 1939
Act.
(11) 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.
In addition to the matters set forth above, such opinion shall also include
a statement to the effect that nothing has come to the attention of such counsel
which causes it to believe that the Registration Statement, as of its effective
date, or any amendment thereto, as of its effective date, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading or
that the Prospectus, as of its issue date or as of the Closing Time, or any
amendment or supplement thereto, as of its issue date or as of the Closing Time,
contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; it being
understood that such counsel need express no opinion as to the Forms T-1 or the
financial statements, including the notes thereto, or other financial data
contained in the Registration Statement or the Prospectus. With respect to such
statement, such counsel may state that its
-10-
11
belief is based upon procedures set forth therein satisfactory to the
Underwriters but is without independent check and verification.
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, 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 Representative. In rendering its opinion, such counsel may
rely as to matters of Florida law upon the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
(ii) At Closing Time, the Underwriter shall have received the
favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., Vice
President-General Counsel of the Company, satisfactory in form and substance to
the Representative and to the effect that:
(1) 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.
(2) The Agreement has been duly authorized, executed and
delivered by the Company.
(3) The Transaction Documents have each been duly
authorized, executed and delivered by the Company; the Notes, when validly
authenticated, and delivered by the Indenture Trustee, will be validly issued;
the Transaction Documents, when validly authenticated, executed and delivered by
the Indenture Trustee, 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.
(4) All descriptions in the Registration Statement of
written contracts and other documents to which the Company is a party are
accurate in all material respects; to the best of such counsel's knowledge,
there are no franchises, contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described or referred to in
the Registration Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by reference as
exhibits thereto, and the descriptions thereof or references thereto are correct
in all material respects.
(5) No filing, registration, or qualification with, or
authorization, approval, consent, license, order, or decree of, any court or
governmental authority or agency, 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 such counsel
-11-
12
expresses 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, except such as have been
already obtained or made.
(6) The execution, delivery and performance by the Company
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 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 (i) the charter or by-laws of the Company, (ii) any applicable
law, statute, rule, or regulation, or (iii) any judgment, order, writ or decree
known to such counsel, of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of its
properties, assets or operations.
In addition to the matters set forth above, such opinion shall also include
a statement to the effect that nothing has come to the attention of such counsel
which causes her to believe that the Registration Statement, as of its effective
date, or any amendment thereto, as of its effective date, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading or
that the Prospectus, as of its issue date or as of the Closing Time, or any
amendment or supplement thereto, as of its issue date or as of the Closing Time,
contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; it being
understood that such counsel need express no opinion as to the Forms T-1 or the
financial statements, including the notes thereto, or other financial data
contained in the Registration Statement or the Prospectus. With respect to such
statement, such counsel may state that her belief is based upon procedures set
forth therein satisfactory to the Representative but is without independent
check and verification.
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, representatives of the applicable trustees
and public officials.
(c) OPINION OF COUNSEL FOR THE UNDERWRITERS. At Closing Time, the
Representative 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 Representative
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
-12-
13
Representative. 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, 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, whether or not arising in the ordinary course of business, and the
Representative 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.
(e) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of this
Agreement, the Representative shall have received from the Company's independent
public accountants a letter dated such date, in form and substance satisfactory
to the Representative, 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 Representative
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
-13-
14
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
Representative 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 Representative 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:
(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 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 Representative),
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
-14-
15
furnished to the Company by any Underwriter through the Representative expressly
for use in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) and (ii) such indemnity with
respect to 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, 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 the
Prospectus was corrected in 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 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 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 Representative specifically for use in the Registration Statement (or any
amendment thereto) 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
-15-
16
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 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 Representative and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
-16-
17
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 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 Representative 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
-17-
18
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, 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
Representative, 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.
(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
Representative 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 Representative 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 Representative 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
-18-
19
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 Representative 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 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
Representative, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any 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 Representative, 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
Representative specifically for use in the Registration Statement or Prospectus
shall be the statements contained in the second paragraph, the third sentence of
the third paragraph and the fifth paragraph 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.
-19-
20
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,
TAMPA ELECTRIC COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President-Finance and
Chief Financial Officer
21
The foregoing Agreement is hereby confirmed and accepted as of the date
first written above.
BANC OF AMERICA SECURITIES LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Managing Director
For themselves and the other Underwriters named in SCHEDULE A to the
foregoing Agreement.
22
SCHEDULE A
UNDERWRITER PRINCIPAL AMOUNT
----------- ----------------
Banc of America Securities LLC ............................... $150,000,000
BNP Paribas Securities Corp. ................................. 25,000,000
Scotia Capital (USA) Inc. .................................... 25,000,000
TD Securities (USA) Inc. ..................................... 25,000,000
Westdeutsche Landesbank Girozentrale ......................... 25,000,000
============
Total ............................................... $250,000,000
23
SCHEDULE B
TITLE: 6.875% Notes due 2012
AGGREGATE PRINCIPAL AMOUNT: $250,000,000
INTEREST PAYMENT DATES: June 15 and December 15 of each year, beginning December
15, 2001.
MATURITY: June 15, 2012
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.: A1
Standard & Poor's Ratings Services: A
Fitch, Inc.: AA-
PURCHASE PRICE: 98.928%
CLOSING: 9:00 A.M. on June 25, 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
Representative as follows:
Banc of America Securities LLC
Bank of America Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
with a copy of any notice pursuant to Section 6(c) to:
Bank of America Securities LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal Department
