SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
September 11, 1998
TECO ENERGY, INC.
(Exact name of registrant as specified in its charter)
Florida 1-8180 59-2052286
(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) Identification No.)
702 North Franklin Street, Tampa, Florida 33602
(Address of principal executive offices and zip code)
Registrant's telephone number, including area code:
(813) 228-4111
<PAGE>
Item 5. Other Events.
On September 11, 1998, TECO Energy, Inc. (the "Company") entered into a
Purchase Agreement (the "Purchase Agreement") with Morgan Stanley & Co.
Incorporated and Citicorp Securities, Inc. (collectively, the "Underwriters")
for the sale to the Underwriters of $150 million principal amount of
Remarketed Notes Due 2038 (the "Notes"). The Notes are a portion of the $200
million principal amount of debt securities (the "Debt Securities") the
Company registered under the Securities Act of 1933, as amended, on a
registration statement (the "Registration Statement") on Form S-3 (File No.
333-60819). The Purchase Agreement incorporates terms from an Agency
Agreement (the "Agency Agreement") dated September 11, 1998 among the
Company, Morgan Stanley & Co. Incorporated and Citicorp Securities, Inc.,
which also may provide terms for subsequent sales of Debt Securities. Closing
of the transaction is expected to take place on September 16, 1998. The Notes
will be issued and sold pursuant to an Indenture (the "Base Indenture") dated
as of August 17, 1998 between the Company and The Bank of New York, as
Trustee, as amended and supplemented by the First Supplemental Indenture
thereto (the "Supplemental Indenture"). The Purchase Agreement and the forms
of the Supplemental Indenture and the Note are exhibits to this Current Report
on Form 8-K. The form of Base Indenture and Agency Agreement were filed as
exhibits to the Registration Statement.
Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits.
(c) Exhibits
(1.1) Purchase Agreement, dated September 11, 1998, among TECO
Energy, Inc., Morgan Stanley & Co. Incorporated and Citicorp
Securities, Inc.
(1.2) Agency Agreement, dated September 11, 1998, among TECO
Energy, Inc., Morgan Stanley & Co. Incorporated and Citicorp
Securities, Inc.
(4.1) Form of First Supplemental Indenture between TECO Energy,
Inc. and The Bank of New York.
(4.2) Form of Remarketed Note Due 2038.
(5.1) Opinion of Palmer & Dodge LLP regarding validity of the
Notes, dated September 11, 1998.
(23.1) Consent of Palmer & Dodge LLP. Included in Exhibit 5.1.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
September 11, 1998 TECO ENERGY, INC.
By: /s/ G.L. Gillette
G.L. Gillette
Vice President-Finance and Chief
Financial Officer
<PAGE>
EXHIBIT INDEX
Page
(1.1) Purchase Agreement, dated September 11, 1998, 5
among TECO Energy, Inc., Morgan Stanley & Co.
Incorporated and Citicorp Securities, Inc.
(1.2) Agency Agreement, dated September 11, 1998, 8
among TECO Energy, Inc., Morgan Stanley & Co.
Incorporated and Citicorp Securities, Inc.
(4.1) Form of First Supplemental Indenture between 37
TECO Energy, Inc. and The Bank of New York.
(4.2) Form of Remarketed Note Due 2038. 78
(5.1) Opinion of Palmer & Dodge LLP regarding validity 110
of the Notes, dated September 11, 1998.
(23.1) Consent of Palmer & Dodge LLP. Included in --
Exhibit 5.1.
TAMPA ELECTRIC COMPANY EXHIBIT 1.1
Remarketed Notes due 2038
PURCHASE AGREEMENT
September 11, 1998
TECO Energy, Inc.
702 North Franklin Street
Tampa, Florida 33602
Attention: Sandra Callahan
Re: Purchase of Remarketed Notes due 2038 (the "Notes")
Reference is made to the Agency Agreement dated September 11, 1998
between you and each of us (the "Agency Agreement"). Capitalized terms
used herein and not defined are used as defined in the Agency Agreement.
We agree to purchase, severally and not jointly, the principal amount
of Notes set forth below opposite our names:
Name Principal Amount of
Notes
Morgan Stanley & Co. Incorporated $ 75,000,000
Citicorp Securities, Inc. $ 75,000,000
____________
Total . . . . . . . . . . . . . . . . $150,000,000
============
The Notes shall be in the form of, and shall have the terms set forth
in, the Form of Remarketed Note attached as Exhibit A hereto.
The provisions of Sections 1, 2(b), 2(c), 3 through 6 and 9 through 13
of the Agency Agreement and the related definitions are incorporated by
reference herein and shall be deemed to have the same force and effect as
if set forth in full herein.
If on the Settlement Date any one or more of the Agents shall fail or
refuse to purchase Notes that it has or they have agreed to purchase on
such date, and the aggregate amount of Notes which such defaulting Agent or
Agents agreed but failed or refused to purchase is not more than one-tenth
of the aggregate amount of the Notes to be purchased on such date, the
other Agents shall be obligated severally in the proportions that the
amount of Notes set forth opposite their respective names above bears to
the aggregate amount of Notes set forth opposite the names of all such
non-defaulting Agents, or in such other proportions as Morgan Stanley & Co.
Incorporated ("Morgan Stanley") may specify, to purchase the Notes which
such defaulting Agent or Agents agreed but failed or refused to purchase on
such date; provided that in no event shall the amount of Notes that any
Agent has agreed to purchase pursuant to this Agreement be increased
pursuant to this paragraph by an amount in excess of one-ninth of such
amount of Notes without the written consent of such Agent. If on the
<PAGE>
Settlement Date any Agent or Agents shall fail or refuse to purchase Notes
and the aggregate amount of Notes with respect to which such default occurs
is more than one-tenth of the aggregate amount of Notes to be purchased on
such date, and arrangements satisfactory to Morgan Stanley and the Company
for the purchase of such Notes are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of
any non-defaulting Agent or the Company. In any such case either Morgan
Stanley or the Company shall have the right to postpone the Settlement Date
but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in
any other documents or arrangements may be effected. Any action taken
under this paragraph shall not relieve any defaulting Agent from liability
in respect of any default of such Agent under this Agreement.
This Agreement is also subject to termination on the terms
incorporated by reference herein. If this Agreement is terminated, the
provisions of Sections 3(h), 6, 9, 10 and 13 of the Agency Agreement shall
survive for the purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Agency Agreement will be
required:
(i) the opinions of Palmer & Dodge LLP, counsel for the Company,
Sheila M. McDevitt, corporate counsel for the Company and Ropes &
Gray, counsel for the Agents, as set forth in Section 4(b)(i), (ii)
and (ii) respectively;
(ii) a certificate of the Company as set forth in Section 4(c);
(iii) a letter or letters from PricewaterhouseCoopers LLP,
independent public accountants, as set forth in Section 4(d); and
(iv) such appropriate further information, certificates and
documents as the Agents may reasonably request.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement between the Agents and you.
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Michael Fusco
Name: Michael Fusco
Title: Vice President
CITICORP SECURITIES, INC.
By: /s/ Pushkar Butani
Name: Pushkar Butani
Title: Managing Director
The foregoing Agreement is hereby confirmed and accepted as of
the date first above written.
TECO ENERGY, INC.
By:/s/ S. W. Callahan
Name: S. W. Callahan
Title: Vice President - Treasurer
EXHIBIT 1.2
CONFORMED COPY
TECO ENERGY, INC.
$200,000,000
Medium-Term Note Program
Due from 9 Months to 40 Years from Date of Issue
AGENCY AGREEMENT
September 11, 1998
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Citicorp Securities, Inc.
399 Park Avenue
5th Floor, Zone 6
New York, New York 10043
Ladies and Gentleman:
TECO Energy, Inc., a Florida corporation (the "Company"), confirms
its agreement with each of you with respect to the issue and sale from
time to time by the Company of up to $200,000,000 (or the equivalent
thereof in one or more foreign currencies or composite currencies)
aggregate initial public offering price of its medium-term notes due from
9 months to 40 years from date of issue (the "Notes"). The Notes will be
issued under an Indenture dated as of August 17, 1998 (the "Base
Indenture") between the Company and The Bank of New York, as Trustee (the
"Trustee"), and will have the maturities, interest rates, redemption
provisions, if any, and other terms as set forth in indentures
supplemental to the Base Indenture (each, a "Supplemental Indenture," the
Base Indenture as amended by such Supplemental Indentures referred to
herein as the "Indenture").
The Company hereby appoints Morgan Stanley & Co. Incorporated and
Citicorp Securities, Inc. (individually an "Agent" and collectively the
"Agents") as its agents, subject to Section 8, Section 11 and the
Company's right to sell Notes directly to investors without the use of
agents for the purpose of soliciting and receiving offers to purchase
Notes from the Company by others and, on the basis of the representations
and warranties herein contained, but subject to the terms and conditions
herein set forth, each Agent agrees to use reasonable efforts to solicit
and receive offers to purchase Notes upon terms acceptable to the Company
at such times and in such amounts as the Company shall from time to time
specify. In addition, any Agent may also purchase Notes as principal
pursuant to the terms of a purchase agreement relating to such sale (a
"Purchase Agreement") in accordance with the provisions of Section 2(b)
hereof.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement, including a prospectus,
relating to the Notes. Such registration statement, including the
exhibits thereto and any amendments thereto, is hereinafter referred to
as the "Registration Statement." The Company proposes to file with the
Commission from time to time, pursuant to Rule 424 under the Securities
Act of 1933, as amended (the "Securities Act"), supplements to the
prospectus included in the Registration Statement that will describe
certain terms of the Notes. The prospectus in the form in which it
appears in the Registration Statement is hereinafter referred to as the
"Base Prospectus." The term "Prospectus" means the Base Prospectus
together with the prospectus supplement or supplements (each a
"Prospectus Supplement") specifically relating to Notes, as filed with,
or transmitted for filing to, the Commission pursuant to Rule 424. As
used herein, the terms "Base Prospectus" and "Prospectus" shall include
in each case the documents, if any, incorporated by reference therein.
The terms "supplement," "amendment" and "amend" as used herein shall
include all documents deemed to be incorporated by reference in the
Prospectus that are filed subsequent to the date of the Base Prospectus
by the Company with the Commission pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
1. Representations and Warranties. The Company represents and
warrants to and agrees with each Agent as of the Commencement Date (as
defined below), as of each date on which an Agent solicits offers to
purchase Notes from the Company, as of each date on which the Company
accepts an offer to purchase Notes (including any purchase by an Agent
pursuant to a Purchase Agreement), as of each date the Company issues and
delivers Notes, and as of each date the Registration Statement or the
Base Prospectus is amended or supplemented, as follows (it being
understood that such representations, warranties and agreements shall be
deemed to relate to the Registration Statement, the Base Prospectus and
the Prospectus, each as amended or supplemented to each such date):
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is
in effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus, on the
date it was or is filed with the Commission, (A) complied or will
comply in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder and
(B) did not contain and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(ii) each part of the Registration Statement, when such part became
effective, did not contain and each such part, as amended or
supplemented, if applicable, when so amended or supplemented, will
not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading, (iii) the Registration
Statement, on the date it was declared effective, and the
Prospectus, as of the date of the Base Prospectus, complied and, as
amended or supplemented, if applicable, on the date of such
Amendment or Supplement, will comply in all material respects with
the Securities Act and the applicable rules and regulations of the
Commission thereunder, and (iv) the Prospectus does not contain and,
as amended or supplemented, if applicable, on the date of such
Amendment or Supplement, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that (1) the
representations and warranties set forth in this paragraph do not
apply (x) to statements or omissions in the Registration Statement
or the Prospectus based upon information relating to an Agent
furnished to the Company in writing by such Agent expressly for use
therein or (y) to that part of the Registration Statement that
constitutes the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), of
the Trustee and (2) the representations and warranties set forth in
clauses 1(b)(ii) and 1(b)(iv) above, when made as of the
Commencement Date or as of any date on which an Agent solicits
offers to purchase Notes from the Company or on which the Company
accepts an offer to purchase Notes, shall be deemed not to cover
information concerning an offering of particular Notes to the extent
such information will be set forth in a supplement to the Base
Prospectus;
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
State of Florida, and has the power and authority (corporate and
otherwise) to own its property and to conduct its business as
described in the Prospectus;
(d) Each of the Company's "significant subsidiaries" (as
defined in Rule 1-02(w) of Regulation S-X of the Exchange
Act) is a corporation duly incorporated and validly existing in good
standing under the laws of the jurisdiction of its incorporation,
and has full power and authority (corporate and other) to own its
properties and to conduct its business as described in the
Registration Statement and Prospectus;
(e) All of the issued shares of capital stock of each of the
Company's significant subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable and are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances and claims.
(f) Each of the Company and its significant subsidiaries is
duly qualified as a foreign corporation in all jurisdictions where
it owns or leases substantial real properties or in which the
conduct of its business requires qualification as a foreign
corporation and in which the failure to so qualify could have a
material adverse effect on the business, financial condition or
prospects of the Company and its subsidiaries taken as a whole;
(g) The Company has full power and lawful authority to
authorize, execute and deliver this Agreement and any applicable
Purchase Agreement (as hereinafter defined) on the terms and
conditions set forth herein and therein and the Agreement and any
applicable Purchase Agreement have been duly authorized, executed
and delivered by the Company;
(h) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms;
(i) The Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the purchasers thereof, will be
entitled to the benefits of the Indenture and will be valid and
binding obligations of the Company;
(j) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Notes, the Indenture and any applicable Purchase Agreement will
not result in a breach of or constitute a default under nor will it
violate the provisions of any indenture, mortgage, deed of trust,
agreement, or other instrument to which the Company is a party or by
which it or any of its property is bound nor will it violate the
provisions of the Restated Articles of Incorporation or by-laws of
the Company or any statute, or any order, rule or regulation, to the
extent applicable to the Company, of any court or other governmental
or regulatory body and no consent, approval, authorization or order
of, or qualification with, any governmental or regulatory body,
including the Florida Public Service Commission, is required for the
performance by the Company of its obligations under this Agreement,
the Notes, the Indenture and any applicable Purchase Agreement,
except, as have been obtained and except such as may be required by
the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Notes;
(k) There has not occurred any material adverse change in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole,
from that set forth in the Prospectus;
(l) The financial statements of the Company, together with
related notes, incorporated in the Registration Statement and the
Prospectus present fairly, in accordance with generally accepted
accounting principles consistently applied (except as stated therein
and except the notes to the interim financial statements), the
financial position and the results of operations of the Company and
its predecessors at the dates and for the respective periods to
which they apply;
(m) The Company is not and, after giving effect to the
offering and sale of the Notes and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as such term is defined in the Investment Company Act of
1940, as amended;
(n) The Company has filed an appropriate exemption statement
pursuant to the provisions of the Public Utility Holding Company Act
of 1935 (the "1935 Act") and is exempt from all provisions of the
1935 Act except Section 9(a)(2)thereof relating to the acquisition
of securities of other public utility companies. The Company is not
subject to the jurisdiction of the Florida Public Service Commission
with respect to the issue and sale of the Notes.
(o) PricewaterhouseCoopers LLP, successor to Coopers & Lybrand
LLP who have certified financial statements of the Company, are
independent public accountants as required by the Securities Act and
the rules and regulations of the Commission thereunder; and
(p) The Company has complied with all provisions of
Section 517.075, Florida Statutes relating to doing business with
the Government of Cuba or with any person or affiliate located in
Cuba.
2. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. In connection with an Agent's
actions as agent hereunder, such Agent agrees to use reasonable
efforts to solicit offers to purchase Notes upon the terms and
conditions set forth in the Prospectus as then amended or
supplemented.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time
or permanently, the solicitation of offers to purchase Notes. Upon
receipt of notice from the Company, the Agents will forthwith
suspend solicitations of offers to purchase Notes from the Company
until such time as the Company has advised the Agents that such
solicitation may be resumed. While such solicitation is suspended,
the Company shall not be required to deliver any certificates,
opinions or letters in accordance with Sections 5(a), 5(b) and 5(c);
provided, however, that if the Registration Statement or Prospectus
is amended or supplemented during the period of suspension (other
than by an amendment or supplement providing solely for a change in
the interest rates, redemption provisions, amortization schedules or
maturities offered on the Notes or for a change the Agents deem to
be immaterial), no Agent shall be required to resume soliciting
offers to purchase Notes until the Company has delivered such
certificates, opinions and letters as such Agent may reasonably
request.
The Company agrees to pay to each Agent, as consideration for
the sale of each Note resulting from a solicitation made or an offer
to purchase received by such Agent, a commission in the form of a
discount from the purchase price of such Note equal to the
percentage set forth below of the purchase price of such Note:
Term
Commission
Rate
From 9 months to less than 1
year
.125%
From 1 year to less than 18
months
.150%
From 18 months to less than 2
years
.200%
From 2 years to less than 3
years
.250%
From 3 years to less than 4
years
.350%
From 4 years to less than 5
years
.450%
From 5 years to less than 6
years
.500%
From 6 years to less than 7
years
.550%
From 7 years to less than 10
years
.600%
From 10 years to less than 15
years
.625%
From 15 years to less than 20
years
From 20 years to less than 30
years
30 years and beyond
.700%
.750%
Subject to
negotiation
Each Agent shall communicate to the Company, orally or in
writing, each offer to purchase Notes received by such Agent as
agent that in its judgment should be considered by the Company. The
Company shall have the sole right to accept offers to purchase Notes
and may reject any offer in whole or in part. Each Agent shall have
the right to reject any offer to purchase Notes that it considers to
be unacceptable, and any such rejection shall not be deemed a breach
of its agreements contained herein. The procedural details relating
to the issue and delivery of Notes sold by the Agents as agents and
the payment therefor shall be as set forth in the Supplemental
Indenture relating to such Notes. Additional procedural details
relating to such Notes may be set forth in one or more letter
agreements between the Company and the Trustee.
(b) Purchases as Principal. Each sale of Notes to an Agent as
principal shall be made in accordance with the terms of this
Agreement. In connection with each such sale, the Company will
enter into a Purchase Agreement that will provide for the sale of
such Notes to and the purchase thereof by such Agent. Each Purchase
Agreement will take the form of a written agreement between such
Agent and the Company, which may be substantially in the form of
Exhibit A hereto (a "Purchase Agreement").
An Agent's commitment to purchase Notes pursuant to a Purchase
Agreement shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and
shall be subject to the terms and conditions herein set forth. Each
Purchase Agreement shall specify the principal amount of Notes to be
purchased by such Agent pursuant thereto, the maturity date of such
Notes, the price to be paid to the Company for such Notes, the
interest rate and interest rate formula, if any, applicable to such
Notes and other terms of such Notes. Each such Purchase Agreement
may also specify any requirements for officers' certificates,
opinions of counsel and letters from the independent public
accountants of the Company pursuant to Section 4 hereof. A Purchase
Agreement may also specify certain provisions relating to the
reoffering of such Notes by such Agent.
Each Purchase Agreement shall specify the time and place of
delivery of and payment for such Notes. Unless otherwise specified
in a Purchase Agreement, the procedural details relating to the
issue and delivery of Notes purchased by an Agent as principal and
the payment therefor shall be as set forth in the Supplemental
Indenture relating to such Notes. Additional procedural details
relating to such Notes may be set forth in one or more letter
agreements between the Company and the Trustee. Each date of
delivery of and payment for Notes to be purchased by an Agent
pursuant to a Purchase Agreement is referred to herein as a
"Settlement Date."
Unless otherwise specified in a Purchase Agreement, if you are
purchasing Notes as principal you may resell such Notes to other
dealers. Any such sales may be at a discount, which shall not
exceed the amount set forth in the Prospectus Supplement relating to
such Notes.
(c) Delivery. The documents required to be delivered by
Section 4 of this Agreement as a condition precedent to each Agent's
obligation to begin soliciting offers to purchase Notes as an agent
of the Company shall be delivered at the office of Ropes & Gray,
counsel for the Agents, not later than 10:00 a.m., New York City
time, on the date hereof, or at such other time and/or place as the
Agents and the Company may agree upon in writing, but in no event
later than the day prior to the earlier of (i) the date on which the
Agents begin soliciting offers to purchase Notes or (ii) the first
date on which the Company accepts any offer by an Agent to purchase
Notes pursuant to a Purchase Agreement. The date of delivery of
such documents is referred to herein as the "Commencement Date."
(d) Obligations Several. The Company acknowledges that the
obligations of the Agents under this Agreement are several and not
joint.
3. Agreements. The Company agrees with each Agent that:
(a) Prior to the termination of the offering of the Notes
pursuant to this Agreement or any Purchase Agreement, the Company
will not file any Prospectus Supplement relating to Notes or any
amendment to the Registration Statement unless the Company has
previously furnished to the Agents copies thereof for their review
and will not file any such proposed supplement or amendment to which
the Agents reasonably object; provided, however, that (i) the
foregoing requirement shall not apply to any of the Company's
periodic filings with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, copies of which filings the
Company will cause to be delivered to the Agents promptly after
being transmitted for filing with the Commission and (ii) any
Prospectus Supplement that merely sets forth the terms or a
description of particular Notes shall only be reviewed and approved
by the Agent or Agents offering such Notes. Subject to the
foregoing sentence, the Company will promptly cause each Prospectus
Supplement to be filed with or transmitted for filing to the
Commission in accordance with Rule 424(b) under the Securities Act.
The Company will promptly advise the Agents (i) of the filing of any
amendment or supplement to the Base Prospectus (except that notice
of the filing of an amendment or supplement to the Base Prospectus
that merely sets forth the terms or a description of particular
Notes shall only be given to the Agent or Agents offering such
Notes), (ii) of the filing and effectiveness of any amendment to the
Registration Statement, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or
supplement to the Base Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution
or threatening of any proceeding for that purpose, and (v) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use reasonable efforts to prevent
the issuance of any such stop order or notice of suspension of
qualification and, if issued, to obtain as soon as practicable the
withdrawal thereof. If the Base Prospectus is amended or
supplemented as a result of the filing under the Exchange Act of any
document incorporated by reference in the Prospectus, no Agent shall
be obligated to solicit offers to purchase Notes so long as it is
not reasonably satisfied with such document.
(b) If, at any time when a prospectus relating to Notes is
required to be delivered under the Securities Act, any event occurs
or condition exists as a result of which the Prospectus, as then
amended or supplemented, would include an untrue statement of a
material fact, or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances when the
Prospectus, as then amended or supplemented, is delivered to a
purchaser, not misleading, or if, in the opinion of the Company, it
is necessary at any time to amend or supplement the Prospectus, as
then amended or supplemented, to comply with applicable law, the
Company will immediately notify the Agents by telephone (with
confirmation in writing) to suspend solicitation of offers to
purchase Notes and, if so notified by the Company, the Agents shall
forthwith suspend such solicitation and cease using the Prospectus,
as then amended or supplemented. If the Company shall decide to
amend or supplement the Registration Statement or Prospectus, as
then amended or supplemented, it shall so advise the Agents promptly
by telephone (with confirmation in writing) and, at its expense,
shall prepare and cause to be filed with the Commission, except as
otherwise expressly provided, at such time it deems appropriate, an
amendment or supplement to the Registration Statement or Prospectus,
as then amended or supplemented, reasonably satisfactory to the
Agents, that will correct such statement or omission or effect such
compliance, and will supply such amended or supplemented Prospectus
to the Agents in such quantities as they may reasonably request. If
any documents, certificates, opinions and letters furnished to the
Agents pursuant to Sections 3(f), 5(a), 5(b) and 5(c) in connection
with the preparation and filing of such amendment or supplement are
reasonably satisfactory to the Agents, upon the filing with the
Commission of such amendment or supplement to the Prospectus or upon
the effectiveness of an amendment to the Registration Statement, the
Agents will resume the solicitation of offers to purchase Notes
hereunder. Notwithstanding any other provision of this paragraph,
until the distribution of any Notes an Agent may own as principal
has been completed up to a maximum of fifteen days from the date of
the Purchase Agreement, if any event described above in this
paragraph occurs, the Company will, at its own expense, forthwith
prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or Prospectus,
as then amended or supplemented, reasonably satisfactory to such
Agent, will supply such amended or supplemented Prospectus to such
Agent in such quantities as it may reasonably request, and shall
furnish to such Agent pursuant to Sections 3(f), 5(a), 5(b), and
5(c) such documents, certificates, opinions, and letters as it may
request in connection with the preparation and filing of such
amendment or supplement.
(c) The Company will make generally available to its security
holders an earning statement that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of
the Commission thereunder covering a twelve month period beginning
not later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in Rule 158 under the
Securities Act) of the Registration Statement with respect to each
sale of Notes. If such fiscal quarter is the first fiscal quarter
of the Company's fiscal year, such earning statement shall be made
available not later than 90 days after the close of the period
covered thereby and in all other cases shall be made available not
later than 45 days after the close of the period covered thereby.
(d) The Company will furnish to each Agent, without charge, a
conformed copy of the Registration Statement, including exhibits and
all amendments thereto, and as many copies of the Prospectus, any
documents incorporated by reference therein and any supplements and
amendments thereto as such Agent may reasonably request.
(e) The Company will cooperate in the qualification of the
Notes for offer and sale under the securities or Blue Sky laws of
such jurisdictions in the United States as the Agents shall
reasonably request and help to maintain such qualifications for as
long as the Agents shall reasonably request.
(f) The Company shall furnish to the Agents such relevant
documents and certificates of officers of the Company relating to
the business, operations and affairs of the Company, the
Registration Statement, the Base Prospectus, any amendments or
supplements thereto, the Indenture, any Supplemental Indenture, the
Notes, this Agreement, any Purchase Agreement and the performance by
the Company of its obligations hereunder or thereunder as the Agents
may from time to time reasonably request.
(g) The Company shall notify the Agents promptly in writing of
any downgrading, or of its receipt of any notice of any intended or
potential downgrading or of any review for possible change that does
not indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act.
(h) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its
obligations under this Agreement and any Purchase Agreement,
including (i) the preparation and filing of the Registration
Statement and the Prospectus and all amendments and supplements
thereto, (ii) the preparation, issuance and delivery of the Notes,
(iii) the fees and disbursements of the Company's counsel and
accountants and of the Trustee and its counsel, (iv) the
qualification of the Notes under securities or Blue Sky laws in
accordance with the provisions of Section 3(e), including filing
fees and the fees and disbursements of counsel for the Agents in
connection therewith and in connection with the preparation of any
Blue Sky Memoranda in an amount not exceeding $5,000 with respect to
any such memorandum, (v) the printing and delivery to the Agents in
quantities as hereinabove stated of copies of the Registration
Statement and all amendments thereto and of the Prospectus and any
amendments or supplements thereto, (vi) any fees charged by rating
agencies for a requested rating of the Notes (the Company agrees the
Agent shall not be obligated to pay bills for unrequested ratings)
(vii) any expenses incurred by the Company in connection with a
"road show" presentation to potential investors and (ix) the fees
and disbursements of counsel for the Agents incurred in connection
with the offering and sale of the Notes, including any opinions to
be rendered by such counsel hereunder, and (x) any out-of-pocket
expenses incurred by the Agents which have been approved by the
Company.
(i) During the period beginning the date of any Purchase
Agreement and continuing to and including the Settlement Date with
respect to such Purchase Agreement (which period shall not exceed 15
days), the Company will not, without such Agent's prior written
consent, offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company or warrants to purchase debt
securities of the Company substantially similar to such Notes (other
than (A) the Notes that are to be sold pursuant to such Purchase
Agreement, (B) Notes previously agreed to be sold by the Company,
(C) commercial paper issued in the ordinary course of business and
(D) in connection with Acquisitions), except as may otherwise be
provided in such Purchase Agreement.
4. Conditions of the Obligations of the Agents. Each Agent's
obligation to solicit offers to purchase Notes as agent of the Company,
each Agent's obligation to purchase Notes pursuant to any Purchase
Agreement, and the obligation of a purchaser to purchase Notes sold
through an Agent as agent will be subject to the accuracy in all material
respects of the representations and warranties on the part of the Company
herein, to the accuracy in all material respects of the statements of the
Company's officers made in each certificate furnished pursuant to the
provisions hereof, and to the performance and observance by the Company
in all material respects of all covenants and agreements herein contained
on its part to be performed and observed (in the case of an Agent's
obligation to solicit offers to purchase Notes, at the time of such
solicitation, and, in the case of an Agent's or other purchaser's
obligation to purchase Notes, at the time the Company accepts the offer
to purchase such Notes and at the time of issuance and delivery) and (in
each case) to the following additional conditions precedent when and as
specifi ed:
(a) Prior to such solicitation or purchase, as the case may
be:
(i) there shall not have occurred any change in the
condition, financial or otherwise, or in the earnings, business
or operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus, as amended or
supplemented at the time of such solicitation or at the time
such offer to purchase was made, that, in the reasonable
judgment of the relevant Agent, is material and adverse and
that makes it, in the reasonable judgment of such Agent,
impracticable to market the Notes on the terms and in the
manner contemplated by the Prospectus, as so amended or
supplemented;
(ii) there shall not have occurred any (A) suspension or
material limitation of trading generally on or by, as the case
may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc.,
the Chicago Board Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (B) suspension of
trading of any securities of the Company on any exchange or in
any over-the-counter market, (C) declaration of a general
moratorium on commercial banking activities in New York by
either Federal or New York State authorities or (D) any
outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the
reasonable judgment of the relevant Agent, is material and
adverse and, in the case of any of the events described in
clauses 4(a)(ii)(A) through 4(a)(ii)(D), such event, singly or
together with any other such event, makes it, in the reasonable
judgment of such Agent, impracticable to market the Notes on
the terms and in the manner contemplated by the Prospectus, as
amended or supplemented at the time of such solicitation or at
the time such offer to purchase was made; and
(iii) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in
the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act;
except (A) in each case described in Section 4(a)(i), 4(a)(ii) or
4(a)(iii) above, as disclosed to the relevant Agent in writing by
the Company prior to such solicitation or, in the case of a purchase
of Notes, as disclosed to the relevant Agent before the offer to
purchase such Notes was made, or (B) in each case described in
Section 4(a)(ii) above, the relevant event shall have occurred and
been known to the relevant Agent before such solicitation or, in the
case of a purchase of Notes, before the offer to purchase such Notes
was made.
(b) On the Commencement Date and, if called for by any
Purchase Agreement, on the corresponding Settlement Date, the
relevant Agents shall have received:
(i) The opinion, dated as of such date, of Palmer & Dodge
LLP, outside counsel for the Company, to the effect that:
(A) the Company has been duly incorporated, is
validly existing as a corporation in good standing under
the laws of the State of Florida has the corporate power
and authority to own its property and to conduct its
business as described in the Prospectus, as then amended
or supplemented;
(B) each of this Agreement and any applicable
Written Purchase Agreement has been duly authorized,
executed and delivered by the Company;
(C) the Indenture has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed
and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with
its terms, subject to bankruptcy, insolvency fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles;
(D) the Notes have been duly authorized and, if
executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for
by the purchasers thereof on the date of such opinion,
would be entitled to the benefits of the Indenture and
would be valid and binding obligations of the Company,
enforceable in accordance with their respective terms,
subject to bankruptcy, insolvency fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights
and to general equity principles;
(E) the execution and delivery by the Company of,
and the performance by the Company of its obligations
under, this Agreement, the Notes, the Indenture and any
applicable Purchase Agreement will not contravene any
provision of applicable law or the restated Articles of
incorporation or by-laws of the Company or constitute a
default under any agreement or other instrument binding
upon the Company or any of its subsidiaries that is listed
as an exhibit to the Company's Form 10-K for the year
ended December 31, 1997, or any subsequently filed
periodic report, or, to the best of such counsel's
knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction
over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification
with, any governmental body or agency is required for the
performance by the Company of its obligations under this
Agreement, the Notes, the Indenture and any applicable
Purchase Agreement, except as has been obtained and except
such as may be required by the securities or Blue Sky laws
of the various states in connection with the offer and
sale of the Notes or the rules of the National Association
of Securities Dealers;
(F) The Registration Statement has become effective under
the Securities Act, and, to the best of the knowledge of
such counsel, no stop order suspending the effectiveness
of the Registration Statement
or of any part thereof has been issued and no proceedings
for that purpose have been instituted or are pending or
contemplated under the Securities Act;
(G) the statements in the Prospectus, as then
amended or supplemented, under the captions "Description
of the Debt Securities," insofar as such statements
constitute summaries of the provisions of the Indenture
fairly summarize the matters referred to therein;
(H) such counsel is of the opinion ascribed to it in
the Prospectus, as then amended or supplemented, under the
caption "Certain Federal Income Tax Consequences";
(I) such counsel (1) is of the opinion that each
document filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus, as then
amended or supplemented (except for financial statements
and schedules and other financial and statistical data
included therein as to which such counsel need not express
any opinion) complied when so filed as to form in all
material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder, (2)
nothing has come to such counsel's attention which has
caused it to believe that (except for financial statements
and schedules and other financial and statistical data as
to which such counsel need not express any belief and
except for that part of the Registration Statement that
constitutes the Form T-1 heretofore referred to) each part
of the Registration Statement, as then amended, if
applicable, when such part became effective, contained any
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary
to make the statements therein not misleading, (3) is of
the opinion that the Registration Statement and
Prospectus, as then amended or supplemented, if applicable
(except for financial statements and schedules and other
financial or statistical data included therein as to which
such counsel need not express any opinion) comply as to
form in all material respects with the Securities Act and
the applicable rules and regulations of the Commission
thereunder and (4) nothing has come to such counsel's
attention which causes it to believe that (except for
financial statements and schedules and other financial or
statistical data as to which such counsel need not express
any belief) the Prospectus, as then amended or
supplemented, if applicable, as of the date such opinion
is delivered contains any untrue statement of a material
fact or omits to state a material fact necessary in order
to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided that in the case of an opinion delivered on the
Commencement Date or pursuant to Section 5(b), the opinion
and belief set forth in clauses 4(b)(i)(I)(3) and
4(b)(i)(I)(4) above shall be deemed not to cover
information concerning an offering of particular Notes to
the extent such information will be set forth in a
supplement to the Base Prospectus.
In rendering such opinion, Palmer & Dodge may rely as to such
matters governed by Florida law upon the opinion of
Sheila M. McDevitt, corporate counsel to the Company
(provided Palmer & Dodge shall state that they believe both they
and you are justified in relying upon such opinion).
(ii) The opinion, dated as of such date, of Sheila M.
McDevitt, corporate counsel to the Company, to the effect that:
(A) Each of the Company's "significant subsidiaries"
(as defined in Rule 1-02(w) of Regulation S-X of the
Exchange Act) that is a Florida corporation is a
corporation duly incorporated and validly existing in good
standing under the laws of the state of Florida, and has
full power and authority (corporate and other) to own its
properties and to conduct its business as described in the
Registration Statement and Prospectus; and
(B) All of the issued shares of capital stock of
each of the Company's significant subsidiaries have been
duly authorized and validly issued, are fully paid and
nonassessable and are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances and
claims.
(iii) The opinion, dated as of such date, of Ropes &
Gray, counsel for the Agents, covering such matters as the
Agents may reasonably request, such counsel having received
such papers and information as they may reasonably request to
enable them to pass on such matters.
(c) On the Commencement Date and, if called for by any
Purchase Agreement, on the corresponding Settlement Date, the
relevant Agents shall have received a certificate of the Company,
dated the Commencement Date or such Settlement Date, as the case may
be, and signed by an executive officer of the Company, to the effect
set forth in Section 4(a)(iii) and to the effect that the
representations and warranties of the Company contained in this
Agreement are, to the best of his or her knowledge true and correct
in all material respects as of such date and that the Company has
complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied on or before
such date.
(d) On the Commencement Date and, if called for by any
Purchase Agreement, on the corresponding Settlement Date,
PricewaterhouseCoopers LLP, independent public accountants, shall
have furnished to the relevant Agents a letter or letters, dated the
Commencement Date or such Settlement Date, as the case may be, in
form and substance satisfactory to such Agents containing statements
and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or
incorporated by reference into the Prospectus, as then amended or
supplemented.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to the relevant Agents such appropriate
further information, certificates and documents as they may
reasonably request.
5. Additional Agreements of the Company.
(a) Each time the Registration Statement or Prospectus is
amended or supplemented (other than by an amendment or supplement
providing solely for a change in the interest rates, redemption
provisions, amortization schedules or maturities offered on the
Notes or for a change the Agents deem to be immaterial), upon the
reasonable request of the Agent the Company will deliver or cause to
be delivered forthwith to each Agent a certificate of the Company
signed by an executive officer of the Company, dated the date of
such amendment or supplement, as the case may be, in form reasonably
satisfactory to the Agents, of the same tenor as the certificate
referred to in Section 4(c) relating to the Registration Statement
or the Prospectus as amended or supplemented to the time of delivery
of such certificate.
(b) Each time the Company furnishes a certificate pursuant to
Section 5(a), the Company will furnish or cause to be furnished
forthwith to each Agent a written opinion of independent counsel for
the Company. Any such opinion shall be dated the date of such
amendment or supplement, as the case may be, shall be in a form
satisfactory to the Agents and shall be of the same tenor as the
opinion referred to in Section 4(b)(i), but modified to relate to
the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion. In lieu of
such opinion, counsel last furnishing such an opinion to an Agent
may furnish to each Agent a letter to the effect that such Agent may
rely on such last opinion to the same extent as though it were dated
the date of such letter (except that statements in such last opinion
will be deemed to relate to the Registration Statement and the
Prospectus as amended or supplemented to the time of delivery of
such letter.)
(c) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental
financial information or such amended or supplemental information is
incorporated by reference in the Prospectus, the Company, upon the
reasonable request of the Agent, shall cause its independent public
accountants forthwith to furnish each Agent with a letter, dated the
date of such amendment or supplement, as the case may be, in form
satisfactory to the Agents, of the same tenor as the letter referred
to in Section 4(d), with regard to the amended or supplemental
financial information included or incorporated by reference in the
Registration Statement or the Prospectus as amended or supplemented
to the date of such letter.
6. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Agent and each person, if any, who controls any Agent within the
meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof or the
Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by (A) any such untrue statement
or omission or alleged untrue statement or omission based upon (i)
information relating to such Agent furnished to the Company in
writing by such Agent expressly for use therein or (ii) information
in that part of the Registration Statement that constitutes the Form
T-1, (B) failure to deliver the Prospectus as most recently
supplemented or amended with or prior to the written confirmation of
such sale or (C) sales made following notice pursuant to Section
3(b) and prior to delivery of an amended or supplemented Prospectus.
(b) Each Agent agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the
Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Agent, but only with
reference to information relating to such Agent furnished to the
Company in writing by such Agent expressly for use in the
Registration Statement or the Prospectus or any amendments or
supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect
of which indemnity may be sought pursuant to either Section 6(a) or
6(b) above, such person (the "indemnified party") shall promptly
notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that
the indemnifying party shall not, in respect of the legal expenses
of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees
and expenses of more than one separate firm (in addition to any
local counsel) for all such indemnified parties and that all such
fees and expenses shall be reimbursed as they are incurred. Such
firm shall be designated in writing by the Agents that are
indemnified parties, in the case of parties indemnified pursuant to
Section 6(a) above, and by the Company, in the case of parties
indemnified pursuant to Section 6(b) above. The indemnifying party
shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss
or liability by reason of such settlement or judgment.
(d) To the extent the indemnification provided for in Section
6(a) or 6(b) is unavailable to an indemnified party or insufficient
in respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in lieu
of indemnifying such indemnified party thereunder, shall contribute
to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and each Agent on the other
hand from the offering of such Notes or (ii) if the allocation
provided by clause 6(d)(i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 6(d)(i) above but also the
relative fault of the Company on the one hand and each Agent on the
other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and each Agent on the other
hand in connection with the offering of such Notes shall be deemed
to be in the same respective proportions as the total net proceeds
from the offering of such Notes (before deducting expenses) received
by the Company bear to the total discounts and commissions received
by each Agent in respect thereof. The relative fault of the Company
on the one hand and each Agent on the other hand shall be determined
by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the Company or by such Agent and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. Each Agent's obligation to
contribute pursuant to this Section 6 shall be several in the
proportion that the principal amount of the Notes the sale of which
by or through such Agent gave rise to such losses, claims, damages
or liabilities bears to the aggregate principal amount of the Notes
the sale of which by or through any Agent gave rise to such losses,
claims, damages or liabilities, and not joint.
(e) The Company and the Agents agree that it would not be just
or equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation (even if the Agents were treated
as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred
to in Section 6(d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities
referred to in Section 6(d) shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Agent shall be
required to contribute any amount in excess of the amount by which
the total price at which the Notes referred to in Section 6(d) that
were offered and sold to the public through such Agent exceeds the
amount of any damages that such Agent has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission
or alleg ed omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 6 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in
this Section 6, representations, warranties and other statements of
the Company, its officers and the Agents set forth in or made
pursuant to this Agreement or any Purchase Agreement will remain in
full force and effect regardless of (i) any termination of this
Agreement or any such Purchase Agreement, (ii) any investigation
made by or on behalf of any Agent or any person controlling any
Agent or by or on behalf of the Company, its officers or directors
or any person controlling the Company and (iii) acceptance of and
payment for any of the Notes.
7. Position of the Agents. In acting under this Agreement and in
connection with the sale of any Notes by the Company (other than Notes
sold to an Agent pursuant to a Purchase Agreement), each Agent is acting
solely as agent of the Company and does not assume any obligation towards
or relationship of agency or trust with any purchaser of Notes. An Agent
shall make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes has been
solicited by such Agent and accepted by the Company, but such Agent shall
not have any liability to the Company in the event any such purchase is
not consummated for any reason. If the Company shall default in its
obligations to deliver Notes to a purchaser whose offer it has accepted,
the Company shall hold the relevant Agent harmless against any loss,
claim, damage or liability arising from or as a result of such default
and shall, in particular, pay to such Agent the commission it would have
received had such sale been consummated.
8. Termination. This Agreement may be terminated at any time by
the Company or, as to any Agent, by the Company or such Agent upon the
giving of written notice of such termination to the other parties hereto,
but without prejudice to any rights, obligations or liabilities of any
party hereto accrued or incurred prior to such termination. The
termination of this Agreement shall not require termination of any
Purchase Agreement, and the termination of any such Purchase Agreement
shall not require termination of this Agreement. If this Agreement is
terminated, the provisions of the third paragraph of Section 2(a),
Section 2(c), the last sentence of Section 3(b) and Sections 3(c), 3(h),
6, 7, 9, 10 and 13 shall survive; provided that if at the time of
termination an offer to purchase Notes has been accepted by the Company
but the time of delivery to the purchaser or its agent of such Notes has
not occurred, the provisions of Sections 1, 2(b), 3(a), 3(d), 3(e), 3(f),
3(g), 3(i), 4 and 5 shall also survive until such delivery has been made.
9. Notices. All communications hereunder will be in writing and
shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices shall be sent,
if to the Agents, to:
Morgan Stanley & Co. Incorporated
1585 Broadway, 2nd Floor
New York, New York 10036
Facsimile: (212) 761-0780
Attention: Manager - Continuously Offered Products
with a copy to:
Morgan Stanley & Co. Incorporated
1585 Broadway, 34th Floor
New York, New York 10036
Facsimile: (212) 761-0260
Attention: Peter Cooper, Investment Banking Information Center
<PAGE>
and a copy to:
Citicorp Securities, Inc.
399 Park Avenue
5th Floor, Zone 6
New York, New York 10043
Facsimile: (212) 793-1717
Attention: Pushkar Butani
and a copy to:
Ropes & Gray
One International Place
Boston, Massachusetts 02110
Facsimile: (617) 951-7050
Attention: Mark V. Nuccio
and if to the Company, to:
TECO Energy, Inc.
702 North Franklin Street
Tampa, Florida 33602
Facsimile: (813) 228-4811
Attention: Roger H. Kessel
with a copy to:
Palmer & Dodge LLP
One Beacon Street
Boston, Massachusetts 02108
Facsimile: (617) 227-4420
Attention: John L. Whitlock
10. Successors. This Agreement and any Purchase Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers, directors and controlling persons
referred to in Section 6 and the purchasers of Notes (to the extent
expressly provided in Section 4), and no other person will have any right
or obligation hereunder.
11. Amendments. This Agreement may be amended or supplemented if,
but only if, such amendment or supplement is in writing and is signed by
the Company and each Agent; provided that the Company may from time to
time, on seven days prior written notice to the Agents but without the
consent of any Agent, amend this Agreement to add as a party hereto one
or more additional firms registered under the Exchange Act, whereupon
each such firm shall become an Agent hereunder on the same terms and
conditions as the other Agents that are parties hereto. The Agents shall
sign any amendment or supplement giving effect to the addition of any
such firm as an Agent under this Agreement.
12. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
except with respect to its conflicts of laws principles.
14. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement between the Company and you.
Very truly yours,
TECO ENERGY, INC.
By: /s/ S. W. Callahan
Name: S. W. Callahan
Title: Vice President - Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the
date first above written.
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Michael Fusco
Name: Michael Fusco
Title: Vice President
CITICORP SECURITIES, INC.
By: /s/ Pushkar Butani
Name: Pushkar Butani
Title: Managing Director
<PAGE>
EXHIBIT A
TECO ENERGY, INC.
Medium-Term Notes
PURCHASE AGREEMENT
[Date]
TECO Energy, Inc.
702 North Franklin Street
Tampa, Florida 33602
Attention: Sandra Callahan
Re: Purchase of Medium-Term Notes due [Maturity Date] (the "Notes")
Reference is made to the Agency Agreement dated September 11, 1998
between you and each of us (the "Agency Agreement"). Capitalized terms
used herein and not defined are used as defined in the Agency Agreement.
We agree to purchase, severally and not jointly, the principal
amount of Notes set forth below opposite our names:
Principal Amount
Name of Notes
Morgan Stanley & Co. Incorporated $
Citicorp Securities, Inc.
Total. . $
The Notes shall be in the form of, and shall have the terms set
forth in, the Form of Note attached as Exhibit A hereto.
The provisions of Sections 1, 2(b), 2(c), 3 through 6 and 9 through
13 of the Agency Agreement and the related definitions are incorporated
by reference herein and shall be deemed to have the same force and effect
as if set forth in full herein.
If on the Settlement Date any one or more of the Agents shall fail
or refuse to purchase Notes that it has or they have agreed to purchase
on such date, and the aggregate amount of Notes which such defaulting
Agent or Agents agreed but failed or refused to purchase is not more than
one-tenth of the aggregate amount of the Notes to be purchased on such
date, the other Agents shall be obligated severally in the proportions
that the amount of Notes set forth opposite their respective names above
bears to the aggregate amount of Notes set forth opposite the names of
all such non-defaulting Agents, or in such other proportions Morgan
Stanley may specify, to purchase the Notes which such defaulting Agent or
Agents agreed but failed or refused to purchase on such date; provided
that in no event shall the amount of Notes that any Agent has agreed to
purchase pursuant to this Agreement be increased pursuant to this
paragraph by an amount in excess of one-ninth of such amount of Notes
without the written consent of such Agent. If on the Settlement Date any
Agent or Agents shall fail or refuse to purchase Notes and the aggregate
amount of Notes with respect to which such default occurs is more than
one-tenth of the aggregate amount of Notes to be purchased on such date,
and arrangements satisfactory to Morgan Stanley and the Company for the
purchase of such Notes are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Agent or the Company. In any such case either Morgan
Stanley or the Company shall have the right to postpone the Settlement
Date but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting
Agent from liability in respect of any default of such Agent under this
Agreement.
This Agreement is also subject to termination on the terms
incorporated by reference herein. If this Agreement is terminated, the
provisions of Sections 3(h), 6, 9, 10 and 13 of the Agency Agreement
shall survive for the purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Agency Agreement will be
required: ________________.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement between the Agents and you.
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
By:
Name:
Title:
CITICORP SECURITIES, INC.
By:
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the
date first above written.
TECO ENERGY, INC.
By:
Name:
Title:
EXHIBIT 4.1
TECO ENERGY, INC.
and
THE BANK OF NEW YORK
As Trustee
____________
FIRST SUPPLEMENTAL INDENTURE
dated as of September 1, 1998
Supplementing the Indenture
dated as of August 17, 1998
____________
$150,000,000
Remarketed Notes Due 2038
TABLE OF CONTENTS PAGE
<PAGE>
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION . . . . . . . . . . . . . . . . . . . . . . 2
Section 101 Definitions . . . . . . . . . . . . . . . . . . 2
Section 102 Section References. . . . . . . . . . . . . . . 8
ARTICLE TWO DESIGNATION AND TERMS OF THE NOTES. . . . . . . . . . . 8
Section 201 Establishment of Series . . . . . . . . . . . . 8
Section 202 Variations in Terms of Notes. . . . . . . . . . 8
Section 203 Amount and Denominations; the Depositary. . . . 9
Section 204 Interest Rates, Interest Payment Dates and
Interest Rate Periods. . . . . . . . . . . . . . . . 9
Section 205 Determination of Interest Rates . . . . . . . .11
Section 206 Election and Determination of a Floating
Interest Rate by the Company . . . . . . . . . . . .12
Section 207 Conversion Between Interest Rate Modes by
the Company . . . . . . . . . . . . . . . . . . . . . .19
Section 208 Automatic Tender of Notes on the Interest
Rate Adjustment Date. . . . . . . . . . . . . . . . . .21
Section 209 Remarketing . . . . . . . . . . . . . . . . . .21
Section 210 Purchase and Redemption of Notes. . . . . . . .23
Section 211 Form and Other Terms of the Notes . . . . . . .24
ARTICLE THREE THE REPS MODE . . . . . . . . . . . . . . . . . . . . .25
Section 301 Applicability of Article. . . . . . . . . . . .25
Section 302 Initial REPS Rate Period. . . . . . . . . . . .25
Section 303 Interest to REPS Remarketing Date . . . . . . .25
Section 304 Tender to and Remarketing by the
Callholder . . 25
Section 305 Conversion or Redemption Following Election by
the Callholder to Remarket . . . . . . . . . . . . .27
ARTICLE FOUR ADDITIONAL EVENTS OF DEFAULT WITH RESPECT
TO THE NOTES . . . . . . . . . . . . . . . . . . . . . . . .28
Section 401 Definition . . . . . . . . . . . . . . . . . . .28
ARTICLE FIVE AUTHENTICATION AND DELIVERY OF THE NOTES. . . . . . . .28
Section 501 Authentication and Delivery. . . . . . . . . . .28
ARTICLE SIX SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . .29
Section 601 Effect On Original Indenture . . . . . . . . . .29
ARTICLE SEVEN MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . .29
Section 701 Counterparts . . . . . . . . . . . . . . . . . .29
Section 702 Recitals . . . . . . . . . . . . . . . . . . . .29
Section 703 Governing Law. . . . . . . . . . . . . . . . . .29
<PAGE>
This First Supplemental Indenture, dated as of September 1,
1998 between TECO Energy, Inc., a corporation duly organized and
existing under the laws of the State of Florida (hereinafter
called the "Company") and having its principal office at TECO
Plaza, 702 North Franklin Street, Tampa, Florida 33602, and The
Bank of New York, (hereinafter called the "Trustee") and having
its principal corporate trust office at 101 Barclay Street, 21st
Floor, New York, New York, 10286.
WITNESSETH:
WHEREAS, the Company and the Trustee entered into an
Indenture, dated as of August 17, 1998 (the "Original
Indenture"), pursuant to which one or more series of debt of the
Company (the "Securities") may be issued from time to time; and
WHEREAS, Section 201 of the Original Indenture permits the
terms of any series of Securities to be established in an
indenture supplemental to the Original Indenture; and
WHEREAS, Section 901(7) of the Original Indenture provides
that a supplemental indenture may be entered into by the Company
and the Trustee without the consent of any Holders of the
Securities to establish the form and terms of the Securities of
any series; and
WHEREAS, the Company has requested the Trustee to join with
it in the execution and delivery of this First Supplemental
Indenture in order to supplement and amend the Original
Indenture by, among other things, establishing the form and
terms of one series of Securities to be known as the Company's
"Remarketed Notes Due 2038" (the "Notes") and amending and
adding certain provisions thereof for the benefit of the Holders
of the Notes; and
WHEREAS, the Company and the Trustee desire to enter into
this First Supplemental Indenture for the purposes set forth in
Sections 201 and 901 of the Original Indenture as referred to
above; and
WHEREAS, the Company has furnished the Trustee with a Board
Resolution authorizing the execution of this First Supplemental
Indenture; and
WHEREAS, all things necessary to make this First
Supplemental Indenture a valid agreement of the Company and the
Trustee and a valid supplement to the Original Indenture have
been done,
<PAGE>
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE
WITNESSETH:
For and in consideration of the premises and the purchase
of the Notes to be issued hereunder by holders thereof, the
Company and the Trustee mutually covenant and agree, for the
equal and proportionate benefit of the respective holders from
time to time of the Notes, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions
All capitalized terms that are used herein and not
otherwise defined herein shall have the meanings assigned to
them in the Original Indenture. The Original Indenture together
with this First Supplemental Indenture are hereinafter sometimes
collectively referred to as the "Indenture."
"Applicable Spread" shall mean the lowest bid indication,
expressed as a spread (in the form of a percentage or in basis
points) above the Base Rate, obtained by the Callholder on the
applicable Determination Date from the bids quoted by up to five
Reference Corporate Dealers for the full aggregate outstanding
principal amount of the Notes at the Dollar Price, but assuming
(i) an issue date equal to the applicable REPS Remarketing Date,
with settlement on such date without accrued interest, (ii) a
maturity date equal to the next succeeding Interest Rate
Adjustment Date of the Notes, and (iii) a stated annual interest
rate, payable semiannually on each Interest Payment Date, equal
to the Base Rate plus the spread bid by the applicable Reference
Corporate Dealer. If fewer than five Reference Corporate
Dealers bid as described above, then the Applicable Spread shall
be the lowest of such bid indications obtained as described
above. The REPS Interest Rate announced by the Callholder,
absent manifest error, shall be binding and conclusive upon the
Beneficial Owners and holders of the Notes, the Company and the
Trustee.
"Base Rate" shall mean the interest rate established by the
Callholder, after consultation with the Company, as the
applicable "base rate" at commencement of the applicable REPS
Mode.
"Beneficial Owner" shall mean, for Notes in book-entry
form, the Person who acquires an interest in the Notes, which is
reflected on the records of the Depositary through its
participants.
"Business Day" shall mean any day that is not a day on
which banking institutions in New York, New York, or the state
in which the office of the Trustee at which the Indenture is
administered are authorized or obligated by law or executive
order to close; provided, however, that with respect to Notes in
the Long Term Rate Mode or the REPS Mode as to which LIBOR is an
applicable Interest Rate Basis, such day is also a London
Business Day (as hereinafter defined). "London Business Day"
shall mean (i) if the Index Currency (as hereinafter defined) is
other than European Currency Units ("ECU"), any day on which
dealings in such Index Currency are transacted in the London
interbank market or (ii) if the Index Currency is ECU, any day
that does not appear as an ECU non-settlement day on the display
designated as "ISDE" on the Reuters Monitor Money Rates Service
(or a day so designated by the ECU Banking Association) or, if
ECU non-settlement days do not appear on the page (and are not
so designated), is a day on which payments in ECU can be settled
in the international banking market.
"Calculation Agent" shall have the meaning specified in
Section 206(a) hereof.
"Calculation Date" shall have the meaning specified in
Section 206(a) hereof.
"Callholder" shall mean the remarketing agent granted the
option under a REPS Remarketing Agreement to purchase Notes in
the REPS Mode and subsequently remarket the repurchased Notes at
a REPS Interest Rate.
"CD Rate" shall have the meaning specified in Section
206(b)(1) hereof.
"CMT Rate" shall have the meaning specified in Section
206(b)(2) hereof.
"Commercial Paper Term Mode" shall mean, with respect to
any Note, the Interest Rate Mode in which the interest rate on
such Note is reset on a periodic basis that shall not be less
than one calendar day nor more than 364 consecutive calendar
days and interest is paid as provided for such Interest Rate
Mode in Section 204(e)(1) hereof.
"Commercial Paper Term Period" shall mean, with respect to
any Note, the Interest Rate Period in the Commercial Paper Term
Mode that is a period of not less than one nor more than 364
consecutive calendar days, as determined by the Company or, if
not so determined, by the Remarketing Agent for such Note (in
its best judgment in order to obtain the lowest interest cost
for the Note). Each Commercial Paper Term Period will commence
on the Interest Rate Adjustment Date therefor and end on the day
preceding the date specified by such Remarketing Agent as the
first day of the next Interest Rate Period for the Notes. The
interest rate for any Commercial Paper Term Period relating to
any Note will be determined not later than 11:50 a.m., New York
City time, on the Interest Rate Adjustment Date for the Note,
which is the first day of each Interest Period for such Note.
<PAGE>
"Comparable Treasury Issues" shall mean the United States
Treasury security or securities selected by the Callholder as
having an actual or interpolated maturity or maturities
comparable or applicable to the remaining term to the next
succeeding Interest Rate Adjustment Date of the Notes being
purchased.
"Comparable Treasury Price" shall mean, with respect to the
REPS Remarketing Date, (a) the offer prices for the Comparable
Treasury Issues (expressed in each case as a percentage of its
principal amount) at 11:00 a.m. on the Determination Date, as
set forth on Telerate Page 500 (or such other page as may
replace Telerate Page 500) or (b) if such page (or any successor
page) is not displayed or does not contain such offer prices on
such Determination Date, (i) the average of the Reference
Treasury Dealer Quotations for such REPS Remarketing Date, after
excluding the highest and lowest of such Reference Treasury
Dealer Quotations, or (ii) if the Callholder obtains fewer than
four such Reference Treasury Dealer Quotations, the average of
all such Reference Treasury Dealer Quotations. "Telerate Page
500" shall mean the display designated as "Telerate Page 500" on
Dow Jones Markets (or such other page as may replace Telerate
Page 500 on such service) or such other service displaying the
offer prices specified in (a) above as may replace Dow Jones
Markets.
"Composite Quotations" shall mean the daily statistical
release entitled "Composite 3:30 P.M. Quotations for United
States Government Securities" published by the Federal Reserve
Bank of New York or any successor publication.
"Depositary" shall have the meaning specified in Section
203 hereof.
"Designated CMT Telerate Page" shall mean the display on
the Dow Jones Markets (or any successor service) on the page
specified in the applicable Floating Interest Rate Notice (or
any other page as may replace such page on such service for the
purpose of displaying Treasury Constant Maturities as reported
in H.15(519)) for the purpose of displaying Treasury Constant
Maturities as reported in H.15(519). If no such page is
specified in the applicable Floating Interest Rate Notice, the
page shall be 7052 for the most recent week.
"Designated CMT Maturity Index" shall mean the original
period to maturity of the United States Treasury securities
(either 1, 2, 3, 5, 7, 10, 20 or 30 years) specified in the
applicable Floating Interest Rate Notice with respect to which
the CMT Rate will be calculated. If no such maturity is
specified in the applicable Floating Interest Rate Notice, the
Designated CMT Maturity Index shall be 2 years.
"Designated LIBOR Page" shall mean (a) if "LIBOR Reuters"
is specified in the applicable Floating Interest Rate Notice,
the display on the Reuters Monitor Money Rates Service (or any
successor service) on the page specified in such Floating
Interest Rate Notice (or any other page as may replace such page
on such service) for the purpose of displaying the London
interbank rates of major banks for the Index Currency, or (b) if
"LIBOR Telerate" is specified in the applicable Floating
Interest Rate Notice or neither "LIBOR Reuters" nor "LIBOR
Telerate" is specified in the applicable Floating Interest Rate
Notice as the method for calculating LIBOR, the display on the
Dow Jones Markets (or any successor service) on the page
specified in such Floating Interest Rate Notice (or any other
page as may replace such page on such service) for the purpose
of displaying the London interbank rates of major banks for the
Index Currency.
"Determination Date" shall mean the third Business Day
immediately preceding the applicable REPS Remarketing Date.
"Dollar Price" shall mean the present value determined by
the Callholder, as of the applicable REPS Remarketing Date, of
the Remaining Scheduled Payments discounted to such REPS
Remarketing Date, on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months), at the Treasury Rate.
"DTC Participant" shall mean an account maintained by an
institution with the Depositary through which securities are
held by such institution and accounted for by a book-entry
registration and transfer system.
"Federal Funds Rate" shall have the meaning specified in
Section 206(b)(3) hereof.
"Floating Interest Rate Notice" shall have the meaning
specified in Section 206(a) hereof. The form of Floating Rate
Interest Notice is set forth as Exhibit C to this First
Supplemental Indenture.
"Floating Rate Maximum Interest Rate" and "Floating Rate
Minimum Interest Rate" have the respective meanings specified in
Section 206(a) hereof.
"H.15(519)" shall mean "Statistical Release H.15(519),
Selected Interest Rates" published by the Board of Governors of
the Federal Reserve System or any successor publication.
"Index Currency" shall mean the currency or composite
currency specified in the applicable Floating Interest Rate
Notice as to which LIBOR will be calculated. If no such
currency or composite currency is specified in the applicable
Floating Interest Rate Notice, the Index Currency will be United
States dollars.
"Index Maturity" shall mean the period to maturity of the
instrument or obligation with respect to which the related
Interest Rate Basis or Bases will be calculated.
<PAGE>
"Initial Interest Rate" shall mean the annual rate of
interest applicable to the Notes during the Initial Interest
Rate Period.
"Initial Interest Rate Period" shall mean the period from
the Original Issue Date to, but excluding, Initial REPS
Remarketing Date.
"Initial Callholder" shall mean the Callholder with the
option to purchase the Notes on the Initial REPS Remarketing
Date.
"Initial REPS Remarketing Date" shall mean the date
designated by the Initial Callholder, after consultation with
the Company, upon which the Initial Callholder may, if it has so
elected, remarket the Notes at the REPS Interest Rate.
"Interest Determination Date" shall have the meaning
specified in Section 206(a) hereof.
"Interest Payment Date" shall have the meaning set forth in
Section 204(c) hereof.
"Interest Rate Adjustment Date" shall mean (i) for a
particular Interest Rate Period in any Interest Rate Mode, each
date, which shall be a Business Day, on which interest and, in
the case of a floating interest rate, the Spread (if any) and
the Spread Multiplier (if any) on the Notes subject thereto
commences to accrue at the rate determined and announced by the
applicable Remarketing Agent for such Interest Rate Period, and
(ii) for Notes in the Initial Interest Rate Period, the Original
Issue Date.
"Interest Rate Basis" shall have the meaning specified in
Section 206(a) hereof.
"Interest Rate Mode" shall mean the mode in which the
interest rate on a Note is being determined, i.e., the
Commercial Paper Term Mode, the Long Term Rate Mode or the REPS
Mode.
"Interest Rate Period" shall mean (a) with respect to any
Note in the Commercial Paper Term Mode or Long Term Rate Mode,
the period of time commencing on the Interest Rate Adjustment
Date and extending either (i) to, but not including, the
immediately succeeding Interest Rate Adjustment Date or (ii) if
there is no succeeding Interest Rate Adjustment Date, to, but
not including, the Stated Maturity, and during which such Note
bears interest at a particular fixed interest rate or floating
interest rate, and (b) with respect to any Note in the REPS
Mode, the REPS Rate Period.
"Interest Reset Date" and "Interest Reset Period" have the
respective meanings specified in Section 206(a) hereof.
"LIBOR" shall have the meaning specified in Section
206(b)(4) hereof.
"Long Term Rate Mode" shall mean, with respect to any Note,
the Interest Rate Mode in which the interest rate on such Note
is reset in a Long Term Rate Period and interest is paid as
provided for such Interest Rate Mode in Section 204(e)(2)
hereof.
"Long Term Rate Period" shall mean, with respect to any
Note, any period of more than 364 days and not exceeding the
remaining term to the Stated Maturity of such Note.
<PAGE>
"Notification Date" shall mean a Business Day not later
than five (5) Business Days prior to the applicable REPS
Remarketing Date.
"Optional Redemption" shall mean the redemption of any Note
prior to its maturity at the option of the Company as described
herein.
"Optional Redemption Price" shall have the meaning
specified in Section 305(c) hereof.
"Original Issue Date" shall mean the date upon which the
Notes are initially issued by the Company, such date to be set
forth on the face of the Note.
"Prime Rate" shall have the meaning specified in Section
206(b)(5) hereof.
"Principal Financial Center" shall mean the capital city of
the country issuing the Index Currency, except that with respect
to United Stated dollars, Australian dollars, Deutsche marks,
Dutch guilders, Italian lire, Swiss francs and ECUs, the
Principal Financial Center shall be the City of New York,
Sydney, Frankfurt, Amsterdam, Milan, Zurich and Luxembourg,
respectively.
"Reference Corporate Dealers" shall mean such Reference
Corporate Dealers as shall be appointed by the Callholder after
consultation with the Company.
"Reference Treasury Dealers" shall mean such Reference
Treasury Dealers as shall be appointed by the Callholder after
consultation with the Company.
"Reference Treasury Dealer Quotation" shall mean, with
respect to each Reference Treasury Dealer and the REPS
Remarketing Date, the offer prices for the Comparable Treasury
Issues (expressed in each case as a percentage of its principal
amount) quoted in writing to the Callholder by such Reference
Treasury Dealer by 3:30 p.m., New York City time, on the
Determination Date.
"Remaining Scheduled Payments" shall mean, with respect to
the Notes, the remaining scheduled payments of the principal
thereof and interest thereon, calculated at the Base Rate only,
that would be due after the REPS Remarketing Date to and
including the next succeeding Interest Rate Adjustment Date.
"Remarketing Agent" shall mean such agent or agents,
including any standby remarketing agent (each a "Standby
Remarketing Agent"), as the Company may appoint from time to
time for the purpose of remarketing of the Notes, as set forth
in the remarketing agreement that the Company shall enter into
prior to the remarketing of such Notes.
<PAGE>
"REPS Interest Rate" shall mean the rate equal to the Base
Rate established by a Callholder, after consultation with the
Company, at or prior to the commencement of the applicable REPS
Mode, plus the Applicable Spread, which will be based on the
Dollar Price.
"REPS Mode" shall mean, with respect to any Note, the
Interest Rate Mode in which such Note shall bear interest and be
subject to remarketing as "REset Put Securities" ("REPS") as
provided for in Article Three hereof.
"REPS Period" shall mean, with respect to any Note
remarketed by the Initial Callholder on the Initial REPS
Remarketing Date, that portion of the REPS Rate Period
commencing on the Initial REPS Remarketing Date up to, but
excluding, the next succeeding Interest Rate Adjustment Date.
"REPS Rate Period" shall mean an Interest Rate Period for
any Note in the REPS Mode established by the Company as a period
of more than 364 days and less than the remaining term to the
Stated Maturity of such Note; provided, however, that such
Interest Rate Period must end on the day prior to an Interest
Payment Date for such Note. The REPS Rate Period shall consist
of the period to and excluding the REPS Remarketing Date and the
period from and including the REPS Remarketing Date to, but
excluding, the next succeeding Interest Rate Adjustment Date.
"REPS Remarketing Agreement" shall mean the agreement by
and between the Company and the Callholder dated as of the date
commencing the applicable REPS Rate Period that sets forth the
rights and obligations of the Company and the Callholder with
respect to the remarketing of Notes in the REPS Mode.
"REPS Remarketing Date" shall mean the date designated by
the Callholder, after consultation with the Company, upon which
the Callholder may elect to remarket the Notes at the REPS
Interest Rate.
"Reuters Screen U.S. PRIME 1 Page" shall mean the display
designated as page "U.S. PRIME 1" on the Reuters Monitor Money
Rates Service (or any successor service) on the U.S. PRIME 1
Page (or such other page as may replace the U.S. PRIME 1 Page on
such service) for the purpose of displaying prime rates or base
lending rates of major United States banks.
"Special Interest Rate" shall have the meaning set forth in
Section 205 hereof.
"Special Mandatory Purchase" shall have the meaning
specified in Section 210(a) hereof.
"Spread" shall mean the number of basis points to be added
to or subtracted from the related Interest Rate Basis or Bases
applicable to an Interest Rate Period for such Note.
<PAGE>
"Spread Multiplier" shall mean the percentage of the
related Interest Rate Basis or Bases applicable to an Interest
Rate Period by which such Interest Rate Basis or Bases will be
multiplied to determine the applicable interest rate from time
to time for an Interest Rate Period.
"Stated Maturity" shall mean September 15, 2038.
"Treasury Bills" shall have the meaning specified in
Section 206(b)(6) hereof.
"Treasury Rate" shall have the meaning specified in Section
206(b)(6) hereof.
"Weekly Rate Period" shall have the meaning specified in
Section 204(e)(1) hereof.
Section 102. Section References
Each reference to a particular section set forth in this
First Supplemental Indenture shall, unless the context otherwise
requires, refer to this First Supplemental Indenture.
ARTICLE TWO
Designation and Terms of the Notes
Section 201. Establishment of Series
There is hereby created a series of Securities to be known
and designated as the "Remarketed Notes Due 2038" (the "Notes"),
which shall rank equally with each other and all other unsecured
and unsubordinated indebtedness of the Company. For the
purposes of the Original Indenture, the Notes shall constitute a
single series of Securities.
Section 202. Variations in Terms of Notes
Subject to the terms and conditions set forth in the
Original Indenture and in this First Supplemental Indenture, the
terms of any particular Note may vary from the terms of any
other Note as contemplated by Section 301 of the Original
Indenture, and the terms for a particular Note will be set forth
in such Note as delivered to the Trustee or an Authenticating
Agent for authentication pursuant to Section 303 of the Original
Indenture.
Section 203. Amount and Denominations; the Depositary
The aggregate principal amount of Notes that may be issued
under this First Supplemental Indenture is limited to
$150,000,000.
<PAGE>
The Notes shall be issuable only in fully registered form
and will initially be registered in the name of The Depository
Trust Company or its successor ("Depositary"), or its nominee
who is hereby designated as "U.S. Depositary" under the Original
Indenture. The authorized denominations of Notes shall be
$100,000 and integral multiples of $1,000 in excess thereof.
Section 204. Interest Rates, Interest Payment Dates and
Interest Rate Periods
(a) Initial Interest Rate. The Notes shall initially bear
interest at the annual rate set forth in Annex A thereof (the
"Initial Interest Rate") from the Original Issue Date to, but
excluding, the Initial REPS Remarketing Date.
(b) Interest Rate(s) Subsequent to the Initial Interest
Rate. If the Initial Callholder elects to purchase the Notes as
described in Section 304 hereof, the Notes shall be subject to
mandatory tender to the Initial Callholder on the Initial REPS
Remarketing Date, except in the limited circumstances described
in Section 304 hereof, and shall for the REPS Period bear
interest at the REPS Interest Rate as described in Section
304(b) hereof.
If the Initial Callholder does not purchase the Notes on
the Initial REPS Remarketing Date, thereafter each Note shall
bear interest at a rate or rates in a new REPS Mode, a Long Term
Rate Mode or a Commercial Paper Term Mode if remarketed as
provided for in Section 209 hereof, or otherwise shall be
redeemed by the Company as provided for under Section 210(b)
hereof. Each Note may bear interest for designated Interest
Rate Periods in the same or a different Interest Rate Mode from
other Notes. The interest rate for the Notes shall be
established periodically by the applicable Remarketing Agent as
provided for in Section 209 hereof. Each Note will set forth on
Annex A thereof the then applicable Interest Rate Mode of such
Note, its interest rate, each Interest Rate Adjustment Date, the
Interest Rate Period and such other information indicated in the
form of Annex A attached to Exhibit A hereto.
(c) Payment of Interest. Interest shall be payable on any
Note at maturity and (i) for the Initial Interest Rate Period,
on the dates set forth on the face thereof; (ii) for any
Interest Rate Period in the Commercial Paper Term Mode, on the
Interest Rate Adjustment Date commencing the next succeeding
Interest Rate Period for such Note and on such other dates (if
any) as shall be established upon conversion of such Note to the
Commercial Paper Term Mode or upon remarketing of the Note in a
new Interest Rate Period in the Commercial Paper Term Mode and
set forth in Annex A to the applicable Note; and (iii) in the
Long Term Rate Mode or REPS Mode, no less frequently than
semiannually on such dates as will be established upon
conversion of such Note to the Long Term Rate Mode or the REPS
Mode (or upon remarketing of the Note in a new Interest Rate
Period in the Long Term Rate Mode or the REPS Mode, as the case
may be) and set forth in Annex A to the applicable Note in the
case of a fixed interest rate, or as described below in Section
206 in the case of a floating interest rate, and on the Interest
Rate Adjustment Date commencing the next succeeding Interest
Rate Period (each such date, an "Interest Payment Date"). Such
interest will be payable to the holder thereof as of the related
Record Date, which, for any Note (x) during the Initial Interest
Rate Period is the fifteenth calendar day (whether or not a
Business Day) immediately preceding the related Interest Payment
Date; (y) in the Commercial Paper Term Mode, is the Business Day
prior to the related Interest Payment Date; and (z) in the Long
Term Rate Mode or the REPS Mode, is the fifteenth calendar day
(whether or not a Business Day) immediately preceding the
related Interest Payment Date. If any Interest Payment Date
would otherwise be a day that is not a Business Day, such
Interest Payment Date will be postponed to the next succeeding
Business Day, and no interest will accrue on such payment for
the period from and after such Interest Payment Date to the date
of such payment on the next succeeding Business Day.
(d) Computation of Interest. Interest on Notes bearing
interest in the Commercial Paper Term Mode or at a floating
interest rate during an Interest Rate Period in the Long Term
Rate Mode or the REPS Mode will be computed on the basis of
actual days elapsed over 360; provided that, if an applicable
Interest Rate Basis is the CMT Rate or Treasury Rate (each as
defined in Section 206 hereof), interest will be computed on the
basis of actual days elapsed over the actual number of days in
the year. Interest on Notes bearing interest at a fixed rate in
the Long Term Rate Mode or REPS Mode will be computed on the
basis of a year of 360 days consisting of twelve 30-day months.
Interest on Notes at the Initial Interest Rate will be computed
on the basis of a year of 360 days consisting of twelve 30-day
months.
(e) Interest Rate Modes. The Interest Rate Period for
each interest rate mode shall be determined in accordance with
this subsection (e) subject to possibility of extension of such
period pursuant to standby remarketing arrangements, if any, as
described in Section 209(b) hereof.
(1) Commercial Paper Term Mode. The Interest Rate
Period for any Note in the Commercial Paper Term Mode will be a
period of not less than one nor more than 364 consecutive
calendar days (a "Commercial Paper Term Period"), as determined
by the Company (as described in Section 207 below) or, if not so
determined, by the Remarketing Agent for such Note (in its best
judgment in order to obtain the lowest interest cost for such
Note). Each Commercial Paper Term Period will commence on the
Interest Rate Adjustment Date therefor and end on the day
preceding the date specified by such Remarketing Agent as the
first day of the next Interest Rate Period for such Note. A
"Weekly Rate Period" is a Commercial Paper Term Period and shall
be a period of seven days commencing on any Interest Rate
Adjustment Date and ending on the day preceding the first day of
the next Interest Rate Period for such Note. The interest rate
for any Commercial Paper Term Period relating to a Note shall be
determined not later than 11:50 a.m., New York City time, on the
Interest Rate Adjustment Date for such Note (subject to Section
209 hereof), which is the first day of each Interest Period for
such Note.
<PAGE>
(2) Long Term Rate Mode. The Interest Rate Period
for any Note in the Long Term Rate Mode shall be established by
the Company (as described in Section 207 hereof) as a period of
more than 364 days and not exceeding the remaining term to the
Stated Maturity of such Note (a "Long Term Rate Period"). The
interest rate, or Spread (if any) and Spread Multiplier (if
any), for any Note in the Long Term Rate Mode shall be
determined not later than 11:50 a.m., New York City time, on the
Interest Rate Adjustment Date for such Note, which is the first
day of each Interest Rate Period for such Note.
(3) REPS Mode. So long as any Note is in a REPS
Mode during the period up to, but excluding, the applicable REPS
Remarketing Date, the provisions set forth in this Article Two
are applicable to the remarketing of Notes generally, but only
to the extent expressly provided in Article Three. The Interest
Rate Period for any Note in the REPS Mode shall be established
by the Company (as described in Section 207 hereof) as a period
of more than 364 days and not exceeding the remaining term to
the Stated Maturity of such Note (a "REPS Rate Period"). A REPS
Rate Period shall consist of the period to and excluding the
REPS Remarketing Date and the period from and including the REPS
Remarketing Date to, but excluding, the next succeeding Interest
Rate Adjustment Date, as described in Article Three and subject
to the conditions therein and otherwise herein described. The
interest rate and, in the case of a floating interest rate, the
Spread (if any), and the Spread Multiplier (if any) to the REPS
Remarketing Date for any Note in the REPS Mode shall be
determined not later than 11:50 a.m., New York City time, on the
Interest Rate Adjustment Date for such Note, which for the REPS
Mode is the first day of each Interest Rate Period for such
Note.
Section 205. Determination of Interest Rates
The interest rate and, in the case of a floating interest
rate, the Spread (if any), and the Spread Multiplier (if any),
for any Note shall be established by the applicable Remarketing
Agent in a remarketing as provided for in Section 207 hereof or
otherwise not later than the first day of each succeeding
Interest Rate Period for such Note, which must be a Business Day
(each an "Interest Rate Adjustment Date"), and will be the
minimum rate of interest and, in the case of a floating interest
rate, Spread (if any) and Spread Multiplier (if any) necessary
in the judgment of such Remarketing Agent to produce a par bid
in the secondary market for such Note on the date the interest
rate is established. Such rate will be effective for the next
succeeding Interest Rate Period for such Note commencing on such
Interest Rate Adjustment Date.
In the event that (i) the applicable Remarketing Agent has
been removed or has resigned and no successor has been
appointed; or (ii) such Remarketing Agent has failed to announce
the appropriate interest rate, Spread (if any) or Spread
Multiplier (if any), as the case may be, on the Interest Rate
Adjustment Date for any Note for whatever reason; or (iii) the
appropriate interest rate, Spread (if any) or Spread Multiplier
(if any), as the case may be, or Interest Rate Period cannot be
determined for any Note for whatever reason, then the next
succeeding Interest Rate Period for such Note shall be
automatically converted to a Weekly Rate Period, and the rate of
interest thereon will be equal to the Federal Funds Rate (such
rate of interest being referred to herein as the "Special
Interest Rate").
After any Interest Rate Adjustment Date any Beneficial
Owner may contact the Trustee or the Remarketing Agent in order
to be advised of the interest rate applicable to such Beneficial
Owner's remarketed Notes. No notice of the applicable interest
rate will be sent to Beneficial Owners.
The interest rate and other terms announced by the
Remarketing Agent, absent manifest error, shall be binding and
conclusive upon the Beneficial Owners, the Company and the
Trustee.
Section 206. Election and Determination of a Floating
Interest Rate by the Company
(a) While any Note bears interest in the Long Term Rate
Mode or the REPS Mode (with respect to the period from, and
including, the Interest Rate Adjustment Date commencing such
period to, but excluding, the REPS Remarketing Date), the
Company may elect a floating interest rate by providing notice,
which shall be submitted or promptly confirmed in writing (which
includes facsimile or appropriate electronic media), received by
the Trustee and the Remarketing Agent for such Note (the
"Floating Interest Rate Notice") not less than ten (10) days
prior to the Interest Rate Adjustment Date for such Long Term
Rate Period or REPS Rate Period. The Floating Interest Rate
Notice must identify by CUSIP number or otherwise the portion of
the Note to which it relates and state the Interest Rate Period
(or portion thereof, in the case of the REPS Mode) therefor to
which it relates. Each Floating Interest Rate Notice must also
state the Interest Rate Basis or Bases, the initial Interest
Reset Date, the Interest Reset Period and Interest Reset Dates,
the Interest Rate Period and Interest Payment Dates, the Index
Maturity and the Floating Rate Maximum Interest Rate and/or
Floating Rate Minimum Interest Rate, if any. If one or more of
the applicable Interest Rate Bases is LIBOR or the CMT Rate, the
Floating Interest Rate Notice shall also specify the Index
Currency and Designated LIBOR Page or the Designated CMT
Maturity Index and Designated CMT Telerate Page, respectively.
A form of Floating Interest Rate Notice is attached hereto as
Exhibit C.
If any Note bears interest at a floating rate in a Long
Term Rate Period or REPS Rate Period, such Note shall bear
interest at the rate determined by reference to the applicable
Interest Rate Basis or Bases (a) plus or minus the Spread (if
any) and/or (b) multiplied by the Spread Multiplier (if any)
specified by the Remarketing Agent, in the case of a Long Term
Rate Period, or the Callholder, in the case of a REPS Rate
Period. Commencing on the Interest Rate Adjustment Date for
such Interest Rate Period, the rate at which interest on such
Note will be payable shall be reset as of each Interest Reset
Date during such Interest Rate Period specified in the
applicable Floating Interest Rate Notice.
The applicable floating interest rate on any Note during
any Interest Rate Period shall be determined by reference to the
applicable Interest Rate Basis or Bases, which may include (i)
the CD Rate, (ii) the CMT Rate, (iii) the Federal Funds Rate,
(iv) LIBOR, (v) the Prime Rate, (vi) the Treasury Rate or (vii)
such other Interest Rate Basis or interest rate formula as may
be specified in the applicable Floating Interest Rate Notice
(each, an "Interest Rate Basis").
Unless otherwise specified in the applicable Floating
Interest Rate Notice, the interest rate with respect to each
Interest Rate Basis shall be determined in accordance with the
applicable provisions of this Section 206. Except as set forth
above or in the applicable Floating Interest Rate Notice, the
interest rate in effect on each day shall be (i), if such day is
an Interest Reset Date, the interest rate determined as of the
Interest Determination Date immediately preceding such Interest
Reset Date or (ii), if such day is not an Interest Reset Date,
the interest rate determined as of the Interest Determination
Date immediately preceding the most recent Interest Reset Date.
If any Interest Reset Date would otherwise be a day that is not
a Business Day, such Interest Reset Date shall be postponed to
the next succeeding Business Day, unless LIBOR is an applicable
Interest Rate Basis and such Business Day falls in the next
succeeding calendar month, in which case such Interest Reset
Date shall be the immediately preceding Business Day. In
addition, if the Treasury Rate is an applicable Interest Rate
Basis and the Interest Determination Date would otherwise fall
on an Interest Reset Date, then such Interest Reset Date shall
be postponed to the next succeeding Business Day.
The applicable Floating Interest Rate Notice will specify
whether the rate of interest will be reset daily, weekly,
monthly, quarterly, semiannually or annually or on such other
specified basis (each, an "Interest Reset Period") and the dates
on which such rate of interest will be reset (each, an "Interest
Reset Date"). Unless otherwise specified in the applicable
Floating Interest Rate Notice, the Interest Reset Dates will be,
in the case of a floating interest rate which resets: (i) daily,
each Business Day; (ii) weekly, the Wednesday of each week
(unless the Treasury Rate is an applicable Interest Rate Basis,
in which case the Tuesday of each week except as described
below); (iii) monthly, the third Wednesday of each month; (iv)
quarterly, the third Wednesday of March, June, September and
December of each year; (v) semiannually, the third Wednesday of
the two months specified in the applicable Floating Interest
Rate Notice; and (vi) annually, the third Wednesday of the month
specified in the applicable Floating Interest Rate Notice.
The interest rate applicable to each Interest Reset Period
commencing on the related Interest Reset Date shall be the rate
determined as of the applicable Interest Determination Date.
The "Interest Determination Date" shall mean (i), with respect
to the CD Rate, the CMT Rate, the Federal Funds Rate and the
Prime Rate, the second Business Day immediately preceding the
applicable Interest Reset Date; (ii) with respect to LIBOR, the
second London Business Day immediately preceding the applicable
Interest Reset Date, unless the Index Currency is British pounds
sterling, in which case it shall mean the applicable Interest
Reset Date; and (iii) with respect to the Treasury Rate, the day
within the week in which the applicable Interest Reset Date
falls upon which day Treasury Bills are normally auctioned;
provided, however, that if an auction is held on the Friday of
the week preceding the applicable Interest Reset Date, the
"Interest Determination Date" shall mean such preceding Friday.
If the interest rate of any Note is a floating interest rate
determined with reference to two or more Interest Rate Bases
specified in the applicable Floating Interest Rate Notice, the
Interest Determination Date pertaining to the Note shall be the
most recent Business Day which is at least two Business Days
prior to the applicable Interest Reset Date on which each
Interest Rate Basis shall determinable. Each Interest Rate
Basis will be determined as of such date, and the applicable
interest rate shall take effect on the related Interest Reset
Date.
Either or both of the following may also apply to the
floating interest rate on any Note for an Interest Rate Period:
(i) a floating rate maximum interest rate, or ceiling, that may
accrue during any Interest Reset Period (the "Floating Rate
Maximum Interest Rate") and (ii) a floating rate minimum
interest rate, or floor, that may accrue during any Interest
Reset Period (the "Floating Rate Minimum Interest Rate"). In
addition to any Floating Rate Maximum Interest Rate that may
apply, the interest rate on any Note shall in no event be higher
than the maximum rate permitted under the law of the State of
New York, as the same may be modified by United States laws of
general application.
Except as provided below or in the applicable Floating
Interest Rate Notice, interest will be payable, in the case of
floating interest rates which reset: (i) daily, weekly or
monthly, on the third Wednesday of each month; (ii) quarterly,
on the third Wednesday of March, June, September and December of
each year; (iii) semiannually, on the third Wednesday of the two
months of each year specified in the applicable Floating
Interest Rate Notice; and (iv) annually, on the third Wednesday
of the month of each year specified in the applicable Floating
Interest Rate Notice and, in each case, on the Business Day
immediately following the applicable Long Term Rate Period or
REPS Rate Period, as the case may be. If any Interest Payment
Date for the payment of interest at a floating rate (other than
following the end of the applicable Long Term Rate Period or
REPS Rate Period, as the case may be) would otherwise be a day
that is not a Business Day, such Interest Payment Date will be
postponed to the next succeeding Business Day, except that if
LIBOR is an applicable Interest Rate Basis and such Business Day
falls in the next succeeding calendar month, such Interest
Payment Date will be the immediately preceding Business Day.
All percentages resulting from any calculation of floating
interest rates will be rounded to the nearest one hundred
thousandth of a percentage point, with five one-millionths of a
percentage point rounded upwards (e.g., 9.876545% (or .09876545)
would be rounded to 9.87655% (or .0987655)), and all amounts
used in or resulting from such calculation will be rounded, in
the case of United States dollars, to the nearest cent or, in
the case of a foreign currency or composite currency, to the
nearest unit (with one-half cent or unit being rounded upwards).
Accrued floating rate interest will be calculated by
multiplying the principal amount of the applicable Note by an
accrued interest factor. Such accrued interest factor will be
computed by adding the interest factor calculated for each day
in the applicable Interest Reset Period. Unless otherwise
specified in the applicable Floating Interest Rate Notice, the
interest factor for each such day will be computed by dividing
the interest rate applicable to such day by 360, if an
applicable Interest Rate Basis is the CD Rate, the Federal Funds
Rate, LIBOR or the Prime Rate, or by the actual number of days
in the year if an applicable Interest Rate Basis is the CMT Rate
or the Treasury Rate. Unless otherwise specified in the
applicable Floating Interest Rate Notice, if the floating
interest rate is calculated with reference to two or more
Interest Rate Bases, the interest factor will be calculated in
each period in the same manner as if only one of the applicable
Interest Rate Bases applied as specified in the applicable
Floating Interest Rate Notice.
For any Note bearing interest at a floating rate, the
applicable Remarketing Agent shall determine the interest rate
in effect from the Interest Rate Adjustment Date for such Note
to the initial Interest Reset Date. The interest rate in effect
for each Interest Reset Period thereafter shall be determined by
a calculation agent selected by the Company (a "Calculation
Agent"). Upon request of the Beneficial Owner of a Note, after
any Interest Rate Adjustment Date, the Calculation Agent or the
Remarketing Agent shall disclose the interest rate and, in the
case of a floating interest rate, Interest Rate Basis or Bases,
Spread (if any) and Spread Multiplier (if any), and in each case
the other terms applicable to such Note then in effect and, if
determined, the interest rate that will become effective as a
result of a determination made for the next succeeding Interest
Reset Date with respect to such Note. Except as described
herein with respect to a Note earning interest at floating
rates, the Beneficial Owner of a note shall not be entitled to
receive notice of the applicable interest rate, Spread (if any)
or Spread Multiplier (if any).
Unless otherwise specified in the applicable Floating
Interest Rate Notice, the "Calculation Date," if applicable,
pertaining to any Interest Determination Date will be the
earlier of (i) the tenth calendar day after such Interest
Determination Date or, if such day is not a Business Day, the
next succeeding Business Day or (ii) the Business Day
immediately preceding the applicable Interest Payment Date or
the Stated Maturity, as the case may be.
(b) Interest Rate Bases for Floating Interest Rates. The
basis for the floating interest rate on any Note during any
Interest Rate Period may include, but is not limited to, any of
the following bases (each, an "Interest Rate Basis"):
(1) If an Interest Rate Basis for any Note is
specified in the applicable Floating Interest Rate Notice as the
"CD Rate," the CD Rate shall mean, with respect to any Interest
Determination Date relating to a Note for which the interest
rate is determined with reference to the CD Rate (a "CD Rate
Interest Determination Date"), the rate on such date for
negotiable United States dollar certificates of deposit having
the Index Maturity specified in the applicable Floating Interest
Rate Notice as published in H.15(519) under the heading "CDs
(Secondary Market)," or, if not published by 3:00 p.m., New York
City time, on the related Calculation Date, the rate on such CD
Rate Interest Determination Date for negotiable United States
dollar certificates of deposit of the Index Maturity specified
in the applicable Floating Interest Rate notice as published in
Composite Quotations under the heading "Certificates of
Deposit." If such rate is not yet published in either H.15(519)
or Composite Quotations by 3:00 p.m., New York City time, on the
related Calculation Date, then the CD Rate on such CD Rate
Interest Determination Date shall be calculated by the
Calculation Agent and shall be the arithmetic mean of the
secondary market offered rates as of 10:00 a.m., New York City
time, on such CD Rate Interest Determination Date, of three
leading nonbank dealers in negotiable United States dollar
certificates of deposit in the City of New York (which may
include the Remarketing Agent or its affiliates) selected by the
Calculation Agent, after consultation with the Company, for
negotiable United States dollars certificates of deposit of
major United States money center banks for negotiable
certificates of deposit with a remaining maturity closest to the
Index Maturity specified in the applicable Floating Interest
Rate Notice in an amount that is representative for a single
transaction in that market at that time; provided, however, that
if the dealers so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the CD Rate determined as
of such CD Rate Interest Determination Date will be the CD Rate
in effect on such CD Rate Interest Determination Date.
(2) If an Interest Rate Basis for any Note is
specified in the applicable Floating Interest Rate Notice as the
"CMT Rate," the CMT Rate shall mean, with respect to any
Interest Determination Date relating to a Note for which the
interest rate is determined with reference to the CMT Rate (a
"CMT Rate Interest Determination Date"), the rate displayed on
the Designated CMT Telerate Page under the caption "...Treasury
Constant Maturities ... Federal Reserve Board Release H.15 ...
Mondays Approximately 3:45 P.M.," under the column for the
Designated CMT Maturity Index for (i), if the Designated CMT
Telerate Page is 7055, the rate on such CMT Rate Interest
Determination Date and (ii) if the Designated CMT Telerate Page
is 7052, the weekly or monthly average, as specified in the
Floating Interest Rate Notice, for the week or the month, as
applicable, ended immediately preceding the week or the month,
as applicable, in which the related CMT Rate Interest
Determination Date occurs. If such rate is no longer displayed
on the relevant page or is not displayed by 3:00 p.m., New York
City time, on the related Calculation Date, then the CMT Rate
for such CMT Rate Interest Determination Date shall be such
treasury constant maturity rate for the Designated CMT Maturity
Index as published in H.15(519). If such rate is no longer
published or is not published by 3:00 p.m., New York City time,
on the related Calculation Date, then the CMT Rate on such CMT
Rate Interest Determination Date shall be such treasury constant
maturity rate for the Designated CMT Maturity Index (or other
United States Treasury rate for the Designated CMT Maturity
Index) for the CMT Rate Interest Determination Date with respect
to such Interest Reset Date as may then be published by either
the Board of Governors of the Federal Reserve System or the
United States Department of the Treasury that the Calculation
Agent determines to be comparable to the rate formerly displayed
on the Designated CMT Telerate Page and published in H.15(519).
If such information is not provided by 3:00 p.m., New York City
time, on the related Calculation Date, then the CMT Rate on the
CMT Rate Interest Determination Date shall be calculated by the
Calculation Agent and shall be a yield to maturity, based on the
arithmetic mean of the secondary market closing offer side
prices as of approximately 3:30 p.m., New York City time, on
such CMT Rate Interest Determination Date reported, according to
their written records, by three leading primary United States
government securities dealers each, a "Reference Dealer") in the
City of New York (which may include the Remarketing Agent or its
affiliates) selected by the Calculation Agent after consultation
with the Company (from five such Reference Dealers selected by
the Calculation Agent, after consultation with the Company, and
eliminating the highest quotation (or, in the event of equality,
one of the highest) and the lowest quotation (or, in the event
of equality, one of the lowest)), for the most recently issued
direct noncallable fixed rate obligations of the United States
("Treasury Notes") with an original maturity of approximately
the Designated CMT Maturity Index and a remaining term to
maturity of not less than such Designated CMT Maturity Index
minus one year. If the Calculation Agent is unable to obtain
three such Treasury Note quotations, the CMT Rate on such CMT
Rate Interest Determination Date shall be calculated by the
Calculation Agent and shall be a yield to maturity based on the
arithmetic mean of the secondary market offer side prices as of
approximately 3:30 p.m., New York City time, on such CMT Rate
Interest Determination Date of three Reference Dealers in the
City of New York (from five such Reference Dealers selected by
the Calculation Agent, after consultation with the Company, and
eliminating the highest quotation (or, in the event of equality,
one of the highest) and the lowest quotation (or, in the event
of equality, one of the lowest)), for Treasury Notes with an
original maturity of the number of years that is the next
highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index
and in an amount of at least U.S. $100 million. If three or
four (and not five) of such Reference Dealers are quoting as
described above, then the CMT Rate shall be based on the
arithmetic mean of the offer prices obtained and neither the
highest nor the lowest of such quotes shall be eliminated;
provided, however, that if fewer than three Reference Dealers so
selected by the Calculation Agent, after consultation with the
Company, are quoting as mentioned herein, the CMT Rate
determined as of such CMT Rate Interest Determination Date shall
be the CMT Rate in effect on such CMT Rate Interest
Determination Date. If two Treasury Notes with an original
maturity as described in the second preceding sentence have
remaining terms to maturity equally close to the Designated CMT
Maturity Index, the Calculation Agent, after consultation with
the Company, shall obtain from five Reference Dealers quotations
for the Treasury Note with the shorter remaining term to
maturity.
(3) If an Interest Rate Basis for any Note is
specified in the applicable Floating Interest Rate Notice as the
"Federal Funds Rate," the Federal Funds Rate shall mean, with
respect to any Interest Determination Date relating to a Note
for which the interest rate is determined with reference to the
Federal Funds Rate (a "Federal Funds Rate Interest Determination
Date"), the rate on such date for United States dollar federal
funds as published in H.15(519) under the heading "Federal Funds
(Effective)" or, if not published by 3:00 p.m., New York City
time, on the Calculation Date, the rate on such Federal Funds
Rate Interest Determination Date as published in Composite
Quotations under the heading "Federal Funds/Effective Rate." If
such rate is not published in either H.15(519) or Composite
Quotations by 3:00 p.m., New York City time, on the related
Calculation Date, then the Federal Funds Rate on such Federal
Funds Rate Interest Determination Date shall be calculated by
the Calculation Agent and shall be the arithmetic mean of the
rates for the last transaction in overnight United States dollar
federal funds arranged by three leading brokers of federal funds
transactions in The City of New York (which may include the
Remarketing Agent or its affiliates) selected by the Calculation
Agent after consultation with the Company, prior to 9:00 a.m.,
New York City time, on such Federal Funds Rate Interest
Determination Date; provided, however, that if the brokers so
selected by the Calculation Agent are not quoting as mentioned
in this sentence, the Federal Funds Rate determined as of such
Federal Funds Rate Interest Determination Date shall be the
Federal Funds Rate in effect on such Federal Funds Rate Interest
Determination Date.
(4) If an Interest Rate Basis for any Note is
specified in the applicable Floating Interest Rate Notice as
"LIBOR," LIBOR shall mean the rate determined by the Calculation
Agent as of the applicable Interest Determination Date (a "LIBOR
Interest Determination Date") in accordance with the following
provisions:
(i) If (a) "LIBOR Reuters" is specified in the
applicable Floating Interest Rate Notice, the
arithmetic mean of the offered rates (unless the
Designated LIBOR Page by its terms provides only for a
single rate, in which case such single rate will be
used) for deposits in the Index Currency having the
Index Maturity specified in the applicable Floating
Interest Rate Notice, commencing on the applicable
Interest Reset Date, that appear (or, if only a single
rate is required as aforesaid, appears) on the
Designated LIBOR Page as of 11:00 a.m., London time,
on such LIBOR Interest Determination Date, or (b)
"LIBOR Telerate" is specified in the applicable
Floating Interest Rate Notice, or if neither "LIBOR
Reuters" nor "LIBOR Telerate" is specified in the
applicable Floating Interest Rate Notice as the method
for calculating LIBOR, the rate for deposits in the
Index Currency having the Index Maturity specified in
the applicable Floating Interest Rate Notice,
commencing on such Interest Reset Date, that appears
on the Designated LIBOR Page as of 11:00 a.m., London
time, on such LIBOR Interest Determination Date. If
fewer than two such offered rates appear, or if no
such rate appears, as applicable, LIBOR on such LIBOR
Interest Determination Date will be determined in
accordance with the provisions described in clause
(ii) below.
<PAGE>
(ii) With respect to a LIBOR Interest Determination Date on
which fewer than two offered rates appear, or no rate appears,
as the case may be, on the Designated LIBOR Page as specified in
clause (i) above, the Calculation Agent shall request the
principal London offices of each of four major reference banks
in the London interbank market, as selected by the Calculation
Agent, after consultation with the Company, to provide the
Calculation Agent with its offered quotation for deposits in the
Index Currency for the period of the Index Maturity specified in
the applicable Floating Interest Rate Notice, commencing on the
applicable Interest Reset Date, to prime banks in the London
interbank market at approximately 11:00 a.m., London time, on
such LIBOR Interest Determination Date and in a principal amount
that is representative for a single transaction in such Index
Currency in such market at such time. If at least two such
quotations are so provided, then LIBOR on such LIBOR Interest
Determination Date shall be the arithmetic mean of such
quotations. If fewer than two such quotations are so provided,
then LIBOR on such LIBOR Interest Determination Date shall be
the arithmetic mean of the rates quoted at approximately 11:00
a.m., in the applicable Principal Financial Center, on such
LIBOR Interest Determination Date by three major banks in such
Principal Financial Center selected by the Calculation Agent,
after consultation with the Company, for loans in the Index
Currency to leading European banks, having the Index Maturity
specified in the applicable Floating Interest Rate Notice and in
a principal amount that is representative for a single
transaction in such Index Currency in such market at such time;
provided, however, that if the banks so selected by the
Calculation Agent are not quoting as mentioned in this sentence,
LIBOR determined as of such LIBOR Interest Determination Date
shall be LIBOR in effect on such LIBOR Interest Determination
Date.
(5) If an Interest Rate Basis for any Note is
specified in the applicable Floating Interest Rate Notice as the
"Prime Rate," Prime Rate shall mean, with respect to any
Interest Determination Date relating to a Note for which the
interest rate is determined with reference to the Prime Rate (a
"Prime Rate Interest Determination Date"), the rate on such date
as such rate is published in H.15(519) under the heading "Bank
Prime Loan." If such rate is not published prior to 3:00 p.m.,
New York City time, on the related Calculation Date, then the
Prime Rate shall be the arithmetic mean of the rates of interest
publicly announced by each bank that appears on the Reuters
Screen U.S. PRIME 1 Page (as defined below) as such bank's prime
rate or base lending rate as in effect for such Prime Rate
Interest Determination Date. If fewer than four such rates
appear on the Reuters Screen U.S. PRIME 1 Page for such Prime
Rate Interest Determination Date, the Prime Rate shall be the
arithmetic mean of the prime rates quoted on the basis of the
actual number of days in the year divided by a 360-day year as
of the close of business on such Prime Rate Interest
Determination Date by four major money center banks (which may
include the Calculation Agent) in the City of New York selected
by the Calculation Agent, after consultation with the Company.
If fewer than four such quotations are so provided, the Prime
Rate shall be the arithmetic mean of four prime rates quoted on
the basis of the actual number of days in the year divided by a
360-day year as of the close of business on such Prime Rate
Interest Determination Date as furnished in the City of New York
by the major money center banks, if any, that have provided such
quotations and by as many substitute banks or trust companies
(which may include the Calculation Agent) as necessary in order
to obtain four such prime rate quotations, provided such
substitute banks or trust companies are organized and doing
business under the laws of the United States, or any State
thereof, have total equity capital of at least U.S. $500 million
and are each subject to supervision or examination by Federal or
State authority, selected by the Calculation Agent, after
consultation with the Company, to provide such rate or rates;
provided, however, that if the banks or trust companies so
selected by the Calculation Agent are not quoting as mentioned
in this sentence, the Prime Rate determined as of such Prime
Rate Interest Determination Date shall be the Prime Rate in
effect on such Prime Rate Interest Determination Date.
(6) If an Interest Rate Basis for any Note is
specified in the applicable Floating Interest Rate Notice as the
"Treasury Rate," Treasury Rate shall mean, with respect to any
Interest Determination Date relating to a Note for which the
interest rate is determined with reference to the Treasury Rate
(a "Treasury Rate Interest Determination Date"), as the rate
from the auction held on such Treasury Rate Interest
Determination Date (the "Auction") of direct obligations of the
United States ("Treasury Bills") having the Index Maturity
specified in the applicable Floating Interest Rate Notice, as
such rate is published in H.15(519) under the heading "Treasury
Bills-auction average (investment)" or, if not published by 3:00
p.m., New York City time, on the related Calculation Date, the
auction average rate of such Treasury Bills (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) as otherwise announced
by the United States Department of the Treasury. In the event
that the results of the Auction of Treasury Bills having the
Index Maturity specified in the applicable Floating Interest
Rate Notice are not reported as provided above by 3:00 p.m., New
York City time, on such Calculation Date, or if no such Auction
is held, then the Treasury Rate shall be calculated by the
Calculation Agent, and will be a yield to maturity (expressed as
a bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) of the arithmetic mean
of the secondary market bid rates, as of approximately 3:30
p.m., New York City time, on such Treasury Rate Interest
Determination Date, of three leading primary United States
government securities dealers (which may include the Remarketing
Agent or its affiliates) selected by the Calculation Agent,
after consultation with the Company, for the issue of Treasury
Bills with a remaining maturity closest to the Index Maturity
specified in the applicable Floating Interest Rate Notice;
provided, however, that if the dealers so selected by the
Calculation Agent are not quoting as mentioned in this sentence,
the Treasury Rate determined as of such Treasury Rate Interest
Determination Date shall be the Treasury Rate in effect on such
Treasury Rate Interest Determination Date.
Section 207. Conversion Between Interest Rate Modes by the
Company
The Company may, at its option, convert the Interest Rate
Mode of the Notes upon (i) any Interest Rate Adjustment Date,
(ii) election of a Callholder to remarket the Notes, subject to
the provisions of Section 305 hereof, or (iii) failure of the
SPUR Agent to purchase the Notes on the applicable REPS
Remarketing Date as described in Section 304 hereof, in each
case in accordance with the procedures provided for in this
Section.
(a) Conversion Between Commercial Paper Term Periods.
Each Note in a Commercial Paper Term Period may be remarketed
into the same Interest Rate Period or converted at the option of
the Company to a different Commercial Paper Term Period on any
Interest Rate Adjustment Date upon either receipt by the
Remarketing Agent and the Trustee of a notice, which will be
submitted promptly confirmed in writing (which includes
facsimile or appropriate electronic media), from the Company (a
"Conversion Notice") prior to 9:30 a.m., New York City time, or
the remarketing of such Note, whichever occurs later, on such
Interest Rate Adjustment Date.
(b) Conversion from the Commercial Paper Term Mode to the
Long Term Rate Mode or the REPS Mode. Each Note in the
Commercial Paper Term Mode may be converted at the option of the
Company to the Long Term Rate Mode or the REPS Mode on any
Interest Rate Adjustment Date upon receipt not less than ten
(10) days prior to such Interest Rate Adjustment Date by the
Remarketing Agent and the Trustee of a Conversion Notice from
the Company.
(c) Conversion Between Long Term Rate Periods or from the
Long Term Rate Mode or the REPS Mode to the Commercial Paper
Term Mode, Long Term Rate Mode or the REPS Mode. Each Note in a
Long Term Rate Period may be remarketed in the same Interest
Rate Period or converted at the option of the Company to a
different Long Term Rate Period or from the Long Term Rate Mode
to the Commercial Paper Term Mode or the REPS Mode, or from the
REPS Mode to a different REPS Mode or to the Long Term Rate Mode
or the Commercial Paper Term Mode, on any Interest Rate
Adjustment Date for such Note upon receipt by the Trustee and
the Remarketing Agent for such Note of a Conversion Notice from
the Company not less than ten (10) days prior to such Interest
Rate Adjustment Dates; provided that the notice required for
conversion from the initial REPS Mode shall not be required
until the latest of the day after the Initial Callholder
notifies the Company that it will not purchase the Notes for
remarketing, the day the Initial Callholder fails to so purchase
the Notes or the day the Company elects to convert the Notes to
a new Interest Rate Mode after the Initial Callholder has
elected to remarket the Notes.
(d) Conversion Notice. Each Conversion Notice must state
each Note to which it relates and the new Interest Rate Mode (if
applicable), the new Interest Rate Period, the date of the
applicable conversion (the "Conversion Date") and, with respect
to any Long Term Rate Period, any optional redemption or
repayment terms for each such Note.
(e) Revocation or Change of Conversion Notice or Floating
Interest Rate Notice. The Company may, upon written notice
received by the Trustee and the applicable Remarketing Agent,
revoke any Conversion Notice or Floating Interest Rate Notice or
change the Interest Rate Mode to which such Conversion Notice
relates or change any Floating Interest Rate Notice up to 9:30
a.m., New York City time, on the Conversion Date, subject to the
limitation set forth in subsection (f) of this Section. If the
Company revokes a Conversion Notice or the Trustee and the
Remarketing Agent fail to receive a Conversion Notice from the
Company by the specified date in advance of the Interest Rate
Adjustment Date for a Note, the Note shall be converted
automatically to the Weekly Rate Period.
(f) Limitation on Conversion, Change of Conversion Notice
or Floating Interest Rate Notice and Revocation.
Notwithstanding the foregoing subsections (a), (b), (c), (d) and
(e), the Company may not, without the consent of the applicable
Remarketing Agent, convert any Note or revoke or change any
Conversion Notice or Floating Interest Rate Notice at or after
the time at which such Remarketing Agent has determined the
interest rate, or Spread (if any) and Spread Multiplier (if
any), for any Note being remarketed (i.e., the time at which
such Note has been successfully remarketed, subject to
settlement on the related Interest Rate Adjustment Date). The
Remarketing Agent may advise the Company of indicative rates
from time to time, or at any time upon the request of the
Company, prior to making such determination of the interest
rate, Spread or Spread Multiplier, as the case may be.
Section 208. Automatic Tender of Notes on the Interest
Rate Adjustment Date
Each Note shall be automatically tendered for purchase, or
deemed tendered for purchase, on each Interest Rate Adjustment
Date relating thereto. Notes shall be purchased or redeemed on
the Interest Rate Adjustment Date relating thereto as described
in Section 209 or 210 hereof.
Section 209. Remarketing
(a) Appointment of Remarketing Agent. In connection with
the conversion by the Company of any Note as set forth in
Section 207 hereof, the Company shall enter into a remarketing
agreement with a Remarketing Agent on or prior to the
remarketing of such Notes, which Remarketing Agent shall be
responsible for the remarketing of such Notes. When any Note is
tendered under Section 208 hereof to the Remarketing Agent for
remarketing, the Remarketing Agent will use its reasonable
efforts to remarket such Note on behalf of the Beneficial Owner
thereof at a price equal to 100% of the principal amount
thereof. The Remarketing Agent may purchase tendered Notes for
its own account in a remarketing, but will not be obligated to
do so. The Company may offer to purchase Notes in a
remarketing, provided that the interest rate established with
respect to Notes in such remarketing is not different from the
interest rate that would have been established if the Company
had not purchased such Notes. Any Notes for which the Company
shall have given a notice of redemption to the Trustee and the
Remarketing Agent will not be considered in a remarketing.
(b) Remarketing Procedures. With respect to each Note for
which there is to be established an interest rate from time to
time by a Remarketing Agent responsible for the remarketing
thereof, such interest rate shall be set in accordance with the
procedures of paragraphs (i) and (ii) below.
(i) Determination of Interest Rate. By 11:00 a.m.,
New York City time, on the Interest Rate Adjustment Date for any
Note, the applicable Remarketing Agent will determine the
interest rate for such Note being remarketed to the nearest one
hundred thousandth (0.00001) of one percent per annum for the
next Interest Rate Period in the case of a fixed interest rate,
and the Spread (if any) and Spread Multiplier (if any) in the
case of a floating interest rate; provided, that between 11:00
a.m., New York City time, and 11:50 a.m., New York City time,
the Remarketing Agent and the Standby Remarketing Agent, if any,
will use their reasonable efforts to determine the interest rate
for any Notes not successfully remarketed as of the applicable
deadline specified in this paragraph. In determining the
applicable interest rate for such Note and other terms, such
Remarketing Agent will, after taking into account market
conditions as reflected in the prevailing yields on fixed and
variable rate taxable debt securities, (i) consider the
principal amount of all Notes tendered or to be tendered on such
date and the principal amount of such Notes prospective
purchasers are or may be willing to purchase and (ii) contact,
by telephone or otherwise, prospective purchasers and ascertain
the interest rates therefor at which they would be willing to
hold or purchase such Notes.
(ii) Notification of Results; Settlement. By 12:30
p.m., New York City time, on the Interest Rate Adjustment Date
of any Notes, the applicable Remarketing Agent will notify the
Company and the Trustee in writing (which may include facsimile
or other electronic transmission), of (i) the interest rate or,
in the case of a floating interest rate, the initial interest
rate, the Spread and Spread Multiplier and the initial Interest
Reset Date, applicable to such Notes for the next Interest Rate
Period, (ii) the Interest Rate Adjustment Date, (iii) the
Interest Payment Dates for any Notes in the Commercial Paper
Term Mode (if other than the Interest Rate Adjustment Date), the
Long Term Rate Mode or the REPS Mode, (iv) the optional
redemption terms, if any, and early remarketing terms, if any,
in the case of a remarketing into a Long Term Rate Period, (v)
the aggregate principal amount of tendered Notes and (vi) the
aggregate principal amount of such tendered Notes that such
Remarketing Agent was able to remarket, at a price equal to 100%
of the principal amount thereof plus accrued interest, if any.
Immediately after receiving such notice and, in any case, not
later than 1:30 p.m., New York City time, the Trustee will
transmit such information and any other settlement information
required by the Depositary, to the extent such information has
been provided to the Trustee, to the Depositary in accordance
with the Depositary's procedures as in effect from time to time.
By telephone at approximately 1:00 p.m., New York City
time, on such Interest Rate Adjustment Date, the applicable
Remarketing Agent will advise each purchaser of Notes (or the
DTC Participant of each such purchaser who it is expected in
turn will advise such purchaser) of the principal amount of such
Notes that such purchaser is to purchase.
Each purchaser of Notes in a remarketing will be required
to give instructions to its DTC Participant to pay the purchase
price therefor in same day funds to the applicable Remarketing
Agent against delivery of the principal amount of such Notes by
book-entry through the Depositary by 3:00 p.m., New York City
time, on the Interest Rate Adjustment Date.
All tendered Notes will be automatically delivered to the
account of the Trustee (or such other account meeting the
requirements of the Depositary's procedures as in effect from
time to time), by book-entry through the Depositary against
payment of the purchase price or redemption price therefor, on
the Interest Rate Adjustment Date relating thereto.
The applicable Remarketing Agent will make, or cause the
Trustee to make, payment to the DTC Participant of each
tendering Beneficial Owner of Notes subject to a remarketing, by
book-entry through the Depositary by the close of business on
the Interest Rate Adjustment Date against delivery through the
Depositary of such Beneficial Owner's tendered Notes, of the
purchase price for tendered Notes that have been sold in the
remarketing. If any such Notes were purchased pursuant to a
Special Mandatory Purchase, subject to receipt of funds from the
Company or, if applicable, an institution providing credit
support, as the case may be, the Trustee will make such payment
of the purchase price of such Notes plus accrued interest, if
any, to such date.
The transactions described above for a remarketing of any
Notes will be executed on the Interest Rate Adjustment Date for
such Notes through the Depositary in accordance with the
procedures of the Depositary, and the accounts of the respective
the DTC Participants will be debited and credited and such Notes
delivered by book-entry as necessary to effect the purchases and
sales thereof, in each case as determined in the related
remarketing.
Except as otherwise set forth in Section 210 hereof, any
Notes tendered in a remarketing will be purchased solely out of
the proceeds received from purchasers of such Notes in such
remarketing, and none of the Trustee, the applicable Remarketing
Agent, any Standby Remarketing Agent or the Company will be
obligated to provide funds to make payment upon any Beneficial
Owner's tender in a remarketing.
Although tendered Notes will be subject to purchase by a
Remarketing Agent in a remarketing, such Remarketing Agent and
any Standby Remarketing Agent will not be obligated to purchase
any such Notes.
The settlement and remarketing procedures described above,
including provisions for payment by purchasers of tendered Notes
or for payment to selling Beneficial Owners of tendered Notes,
may be modified to the extent required by the Depositary. In
addition, each Remarketing Agent may, in accordance with the
terms of the Indenture, modify the settlement and remarketing
procedures set forth above in order to facilitate the settlement
and remarketing process.
As long as the Depositary's nominee holds the certificates
representing the Notes in the book-entry system of the
Depositary, no certificates for such Notes will be delivered by
any selling Beneficial Owner to reflect any transfer of Notes
effected in any remarketing.
The Trustee shall confirm to the Depositary the interest
rate for the following Interest Rate Period in accordance with
the Depositary's procedures as in effect from time to time.
The interest rate announced by the applicable Remarketing
Agent, absent manifest error, shall be binding and conclusive
upon the Beneficial Owners, the Company and the Trustee.
(c) Failed Remarketing. Notes not successfully remarketed
will be subject to Special Mandatory Purchase by the Company as
set forth in Section 210 hereof.
Section 210. Purchase and Redemption of Notes
(a) Special Mandatory Purchase. Subject to certain
exceptions, if on any Interest Rate Adjustment Date for any
Notes, the applicable Remarketing Agent and the applicable
Standby Remarketing Agent(s) have not remarketed all such Notes,
the Notes that have not been remarketed are subject to Special
Mandatory Purchase (a "Special Mandatory Purchase") by the
Company. The Company is obligated to pay all accrued and unpaid
interest, if any, on unremarketed Notes to such Interest Rate
Adjustment Date. Payment of the principal amount of
unremarketed Notes by the Company, and payment of accrued and
unpaid interest, if any, by the Company, will be made by deposit
of same-day funds with the Trustee (or such other account
meeting the requirements of the Depositary's procedures as in
effect from time to time) irrevocably in trust for the benefit
of the Beneficial Owners of Notes subject to Special Mandatory
Purchase by 3:00 p.m., New York City time, on such Interest Rate
Adjustment Date.
Failure by the Company to purchase Notes pursuant to a
Special Mandatory Purchase will constitute an Event of Default
under the Indenture as set forth in Section 401 hereof in which
event the date of such failure shall constitute a date of
Maturity for such Notes and the principal thereof may be
declared due and payable in the manner and with the effect
provided in the Indenture. Following such failure to pay
pursuant to a Special Mandatory Purchase, such Notes will bear
interest at the Special Interest Rate as provided for in Section
205 hereof.
(b) Optional Redemption on any Interest Rate Adjustment
Date. Each Note will be subject to redemption at the option of
the Company in whole or in part on any Interest Rate Adjustment
Date relating thereto without notice to the holders thereof at a
redemption price equal to 100% of the principal amount thereof.
(c) Redemption While Notes are in the Long Term Rate Mode.
Any Notes in the Long Term Rate Mode are subject to redemption
at the option of the Company at the times and upon the terms
specified at the time of conversion to or within such Long Term
Rate Mode.
(d) Allocation. Except in the case of a Special Mandatory
Purchase, if the Notes are to be redeemed in part, the
Depositary, after receiving notice of redemption specifying the
aggregate principal amount of Notes to be so redeemed, will
determine by lot (or otherwise in accordance with the procedures
of the Depositary) the principal amount of such Notes to be
redeemed from the account of each DTC Participant. After making
its determination as described above, the Depositary will give
notice of such determination to each DTC Participant from whose
account such Notes are to be redeemed. Each such DTC
Participant, upon receipt of such notice will in turn determine
the principal amount of Notes to be redeemed from the accounts
of the Beneficial Owners of such Notes for which it serves as
DTC Participant, and give notice of such determination to the
Remarketing Agent.
Section 211. Form and Other Terms of the Notes
(a) Attached hereto as Exhibit A is the form of Note,
which form is hereby established as the form in which Notes may
be issued bearing interest at the Initial Interest Rate or in
the Commercial Paper Term Mode, the Long Term Rate Mode or the
REPS Mode. Annex A to Exhibit A is deemed to be a part of such
Note and such Annex may be changed upon the mutual agreement of
the Company and the Trustee to reflect changes occasioned by
remarketings.
(b) Subject to (a) above, any Note may be issued in such
other form as may be provided by, or not inconsistent with, the
terms of the Original Indenture and this First Supplemental
Indenture.
ARTICLE THREE
The REPS Mode
Section 301. Applicability of Article
The provisions of this Article Three shall apply to any
Note in the REPS Mode. To the extent that any provision of this
Article Three conflicts with any provision of Article Two, the
provisions set forth in this Article Three shall govern.
Section 302. Initial REPS Rate Period
The Notes shall be issued initially in a REPS Mode with
respect to which the Company shall have on the Original Issue
Date entered into a REPS Remarketing Agreement. With respect to
Notes within a REPS Rate Period commencing on the Original Issue
Date, references in this Article Three to (i) the Callholder and
REPS Remarketing Date shall mean the Initial Callholder and the
Initial REPS Remarketing Date and (ii) the Interest Rate
Adjustment Date upon which the REPS Rate Period commences shall
mean the Original Issue Date.
Section 303. Interest to REPS Remarketing Date
Each Note in the REPS Mode will bear interest at the annual
interest rate established by the Callholder from, and including,
the Interest Rate Adjustment Date commencing the Interest Rate
Period for the REPS Mode to, but excluding, the REPS Remarketing
Date. Such interest rate will be the minimum rate of interest
and, in the case of a floating interest rate, Spread (if any)
and Spread Multiplier (if any) necessary in the judgment of such
Callholder to produce a par bid in the secondary market for such
Note on the date the interest rate is established. The
designated REPS Remarketing Date shall be an Interest Payment
Date within such Interest Rate Period.
Section 304. Tender to and Remarketing by the Callholder
The obligations of the SPUR Agent set forth herein shall be
performed under the applicable REPS Remarketing Agreement.
(a) Mandatory Tender. Provided that the Callholder gives
notice to the Company and the Trustee on or before the
Notification Date of its intention to purchase the Notes for
remarketing, each Note will be automatically tendered, or deemed
tendered, to the Callholder for remarketing at the REPS Interest
Rate on the REPS Remarketing Date, except in the circumstances
described in subsection (b)(2) and Section 305 below with regard
to failure of the Callholder to purchase the Notes. The
purchase price for the tendered Notes to be paid by the
Callholder will equal 100% of the principal amount thereof.
When the Notes are tendered for remarketing, the Callholder may
remarket the Notes for its own account at varying prices to be
determined by the Callholder at the time of each sale. From and
including the REPS Remarketing Date to, but excluding, the next
succeeding Interest Rate Adjustment Date, the Notes will bear
interest at the REPS Interest Rate. If the Callholder elects to
remarket the Notes, the obligation of the Callholder to purchase
the Notes on the REPS Remarketing Date is subject to the
conditions set forth in the applicable REPS Remarketing
Agreement.
(b) Remarketing. The remarketing of the notes purchased by
Callholder under the REPS Remarketing Agreement shall be carried
out in accordance with the following procedures:
(1) The REPS Interest Rate. Subject to the
Callholder's election to remarket the Notes as provided in
subsection (a) above, the REPS Interest Rate shall be determined
by the Callholder by 3:30 p.m., New York City time, on the third
Business Day immediately preceding the REPS Remarketing Date
(the "Determination Date") to the nearest one hundred-thousandth
(0.00001) of one percent per annum and will be equal to the Base
Rate established by the Callholder, after consultation with the
Company, at or prior to the commencement of the REPS Mode (the
"Base Rate"), plus the Applicable Spread, which will be based on
the Dollar Price of the Notes.
(2) Notification of Results; Settlement. Provided
the Callholder has previously notified the Company and the
Trustee on the Notification Date of its intention to purchase
all tendered Notes on the REPS Remarketing Date, the Callholder
will notify the Company, the Trustee and the Depositary by
telephone, confirmed in writing, by 4:00 p.m., New York City
time, on the Determination Date, of the REPS Interest Rate.
All of the tendered Notes will be automatically delivered
to the account of the Trustee, by book-entry through the
Depositary pending payment of the purchase price therefor, on
the REPS Remarketing Date.
In the event that the Callholder purchases the tendered
Notes on the REPS Remarketing Date, the Callholder will make or
cause the Trustee to make payment to the DTC Participant of each
tendering Beneficial Owner of Notes, by book-entry through the
Depositary by the close of business on the REPS Remarketing Date
against delivery through the Depositary of such Beneficial
Owner's tendered Notes. If the Callholder does not purchase all
of the Notes on the REPS Remarketing Date, the Company may
attempt to convert the Notes to a new Interest Rate Mode, such
interest rate to be determined as provided for in Section 205
hereof, and settlement will be effected as described in this
Section 304(b). In any case, the Company will make or cause the
Trustee to make payment of interest to each Beneficial Owner of
Notes due on the REPS Remarketing Date by book-entry through the
Depositary by the close of business on the REPS Remarketing
Date.
The transactions in this subsection (b)(2) hereof will be
executed on the REPS Remarketing Date through the Depositary in
accordance with the procedures of the Depositary, and the
accounts of the respective DTC Participants will be debited and
credited and the Notes delivered by book-entry as necessary to
effect the purchases and sales thereof.
Transactions involving the sale and purchase of Notes
remarketed by the Callholder on and after a REPS Remarketing
Date will settle in immediately available funds through the
Depositary's Same-Day Funds Settlement System.
The tender and settlement procedures described above,
including provisions for payment by purchasers of Notes in the
remarketing or for payment to selling Beneficial Owners of
tendered Notes, may be modified to the extent required by the
Depositary or to the extent required to facilitate the tender
and remarketing of Notes in certificated form, if the book-entry
system is no longer available for the Notes at the time of the
remarketing. In addition, the Callholder may, in accordance
with the terms of the Indenture, modify the tender and
settlement procedures set forth above in order to facilitate the
tender and settlement process.
As long as the Depositary's nominee holds the certificates
representing any Notes in the book-entry system of the
Depositary, no certificates for such Notes will be delivered by
any selling Beneficial Owner to reflect any transfer of such
Notes effected in the remarketing.
Section 305. Conversion or Redemption Following Election
by the Callholder to Remarket
(a) If the Callholder elects to remarket the Notes on the
REPS Remarketing Date, the Notes will be subject to mandatory
tender to the Callholder for remarketing on such date, in each
case subject to the conditions set forth in Section 304 hereof,
and to the Company's right to either convert the Notes to a new
Interest Rate Mode on the REPS Remarketing Date or to redeem the
Notes from the Callholder, in each case as described in the next
sentence. The Company will notify the Callholder and the
Trustee, not later than the Business Day immediately preceding
the Determination Date, if the Company irrevocably elects to
exercise its right to either convert the Notes to a new Interest
Rate Mode, or to redeem the Notes in whole, but not in part,
from the Callholder at the Optional Redemption Price, in each
case on the REPS Remarketing Date.
(b) In the event that the Company irrevocably elects to
convert the Notes to a new Interest Rate Mode, then as of the
REPS Remarketing Date the Notes will cease to be in the REPS
Mode, the REPS Remarketing Date will constitute an Interest Rate
Adjustment Date, and the Notes shall be subject to remarketing
on such date by a Remarketing Agent appointed in the Commercial
Paper Term Mode or the Long Term Rate Mode or a new REPS Mode
established in accordance with the procedures set forth in
Section 207 hereof; provided that, in such case, the notice
period required for conversion shall be the period commencing on
the Determination Date. In such case, the Company shall pay to
the Callholder the excess of the Dollar Price of the Notes over
100% of the principal amount of the Notes in same-day funds by
wire transfer to an account designated by the Callholder on the
REPS Remarketing Date.
(c) In the event that the Company irrevocably elects to
redeem the Notes, the "Optional Redemption Price" shall be the
greater of either (i) 100% of the principal amount of the Notes
or (ii) the Dollar Price, plus in either case accrued and unpaid
interest from the REPS Remarketing Date on the principal amount
being redeemed to the date of redemption. If the Company elects
to redeem the Notes, it shall pay the redemption price therefor
in same-day funds by wire transfer to an account designated by
the Callholder on the REPS Remarketing Date.
(d) If notice has been given as provided in the Indenture
and funds for the redemption of any Notes called for redemption
shall have been made available on the redemption date referred
to in such notice, such Notes shall cease to bear interest on
the date fixed for such redemption specified in such notice and
the only right of the Callholder from and after the redemption
date shall be to receive payment of the Optional Redemption
Price upon surrender of such Notes in accordance with such
notice.
ARTICLE FOUR
Additional Events of Default with Respect to the Notes
Section 401. Definition
All of the events specified in clauses (1), (2) and (4)
through (6) of Section 501(a) of the Original Indenture shall be
"Events of Default" with respect to the Notes. In addition, the
following event that shall have occurred and be continuing shall
be an additional Event of Default with respect to each series of
Notes: (7) default in the payment of the purchase price with
respect to the Special Mandatory Purchase on the applicable
Interest Rate Adjustment Date in accordance with Section 210(a)
hereof.
ARTICLE FIVE
Authentication and Delivery of the Notes
Section 501. Authentication and Delivery
As provided in and pursuant to Section 303 of the Original
Indenture, each time that the Company delivers Notes to the
Trustee or Authenticating Agent for authentication, the Company
shall deliver a Supplemental Company Order in the form of
Exhibit B to this First Supplemental Indenture for the
authentication and delivery of such Notes and the Trustee or
such Authenticating Agent shall authenticate and deliver such
Notes.
ARTICLE SIX
Supplemental Indentures
Section 601. Effect On Original Indenture
The First Supplemental Indenture is a supplement to the
Original Indenture. As supplemented by this First Supplemental
Indenture, the Original Indenture is in all respects ratified,
approved and confirmed, and the Original Indenture and this
First Supplemental Indenture shall together constitute one and
the same instrument.
ARTICLE SEVEN
Miscellaneous
Section 701. Counterparts
This First Supplemental Indenture may be executed in any
number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall
together constitute by one and the same instrument.
Section 702. Recitals
The recitals contained herein shall be taken as the
statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this First
Supplemental Indenture.
<PAGE>
Section 703. Governing Law
This First Supplemental Indenture shall be governed by and
construed in accordance with the laws of the jurisdiction that
govern the Original Indenture and its construction.
[The balance of this page intentionally left blank.]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental Indenture to be duly executed and their
respective corporate seals to be hereunto affixed and attested,
all as of the date and year first written above.
TECO ENERGY, INC.
By:
Name:
Title:
[Corporate Seal]
THE BANK OF NEW YORK, AS TRUSTEE
By:
Name:
Title:
[Corporate Seal]
<PAGE>
State of )
) SS.:
County of )
On the __________ day of ________________, 1998 before me
personally came ________________, to me known, who, being by
me duly sworn, did depose and say that he/she is ______________
of TECO ENERGY, INC., one of the corporations
described in and which executed the foregoing instrument; that
he/she knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and
that he/she signed his/her name thereto by like authority.
Notary Public
State of New York )
) SS.:
County of New York )
On the ________ day of __________________ 1998 before me
personally came ______________________________________ to me
known, who, being by me duly sworn, did depose and say that
he/she is ____________________________ of THE BANK OF NEW YORK,
one of the corporations described in and which executed the
foregoing instrument; that he/she knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board
of Directors of said corporation, and that he/she signed his/her
names thereto by like authority.
Notary Public
Exhibit C --
EXHIBIT A
FORM OF NOTE
Included as Exhibit 4.2 to this filing
<PAGE>
EXHIBIT B
TECO ENERGY, INC.
REMARKETED NOTES DUE 2038
SUPPLEMENTAL COMPANY ORDER
Pursuant to Article Five of the First Supplemental
Indenture, dated as of September 1, 1998, to the Indenture,
dated as of August 17, 1998, as amended, you are instructed to
prepare and authenticate a Note, of the series identified above,
in the principal amount of $______________. The Note is being
delivered in exchange for issued and outstanding Notes of the
series identified above.
IN WITNESS WHEREOF, I have hereunto set my hand this
____ day of ________, ____.
TECO ENERGY, INC.
By:
Name:
Title:
<PAGE>
EXHIBIT C
[TECO Energy, Inc. Letterhead]
FLOATING INTEREST RATE NOTICE
[Date]
To: [Remarketing Agent(s)]
[Address]
The Bank of New York
10161 Centurion Parkway
Jacksonville, Florida 32256
Attention: Corporate Trust Trustee Administration
Telecopy: (904) 645-1997
Re: Remarketed Notes Due 2038 (the "Notes")
Ladies and Gentlemen:
This Floating Interest Rate Notice relates to (i)
$_______________ principal amount of the Notes (CUSIP No.
___________) and (ii) the proposed [Long Term Rate Period] [REPS
Rate Period] of the Note (the "Interest Rate Period") commencing
on ___________ and ending on ___________. Capitalized terms
used and not otherwise defined herein shall have their
respective meanings assigned to them in the Notes.
We hereby notify you that the above-referenced Notes will
bear the following floating rate terms during the Interest Rate
Period specified above:
1. The Interest Rate Basis(es) shall be:
[ ] CD Rate, where the Index Maturity will be
______________;
[ ] CMT Rate, where the Designated CMT Maturity Index will
be _____________, and the Designated CMT Telerate Page
will be ____________;
[ ] Federal Funds Rate;
[ ] LIBOR Reuters, where the Index Currency will be
___________, and the Designated LIBOR Page will be
__________;
[ ] LIBOR Telerate, where the Index Currency will be
_____________ , and the Designated LIBOR Page will be
_____________;
[ ] Prime Rate;
[ ] Treasury Rate
2. The floating interest rate will be reset as follows:
[ ] Initial Interest Reset Date will be __________ ;
[ ] Interest Reset Dates will be _____________;
[ ] Interest Reset Period will be ____________;
3. The interest will be paid as follows:
[ ] Interest Payment Dates will be _____________;
[ ] Interest Rate Period will be ____________;
[ ] Index Maturity will be _________;
[ ] Floating Rate Maximum Interest Rate will be
____________;
[ ] Floating Rate Minimum Interest Rate will be
______________.
4. Day Count Convention:
[ ] Actual/360;
[ ] Actual/Actual;
[ ] 30/360.
5. Other terms: [ ]
Each Beneficial Owner of the Note will be deemed to have
tendered such Note as of the Interest Rate Adjustment Date and
will not be entitled to further accrual of interest after the
Interest Rate Adjustment Date.
TECO ENERGY, INC.
By:
Name:
Title:
EXHIBIT 4.2
CUSIP NO.:_______________ PRINCIPAL AMOUNT: $150,000,000
REGISTERED NO. 1
TECO ENERGY, INC.
Remarketed Note Due 2038
/x/ Check this box if the Note is a Global Note.
Applicable if the Note is a Global Note:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
This Note is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name
of Cede & Co., or such other nominee of The Depository Trust
Company, a New York corporation, or any successor depositary
("Depositary"), as requested by an authorized representative of
the Depositary. This Note is exchangeable for Notes registered
in the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Indenture and
may not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary.
ORIGINAL ISSUE DATE: INTEREST PAYMENT DATES: INITIAL CALLHOLDER: Morgan
September __, 1998 March and September 15 of Stanley & Co. Incorporated,
each year, up to but or its assignee or successor
excluding September 15,
ISSUE PRICE: 100% 2001 and commencing March SINKING FUND: N/A
(as a percentage of 15, 1999. From and
principal amount) including September 15, YIELD TO MATURITY: N/A
2001, on the dates
STATED MATURITY: described in Annex A REDEMPTION, REPURCHASE
September 15, 2038, hereto. AND CONVERSION OPTIONS: See
subject to mandatory reverse of this Note.
tender to the SPECIFIED CURRENCY: U.S.
Callholder, if any, dollars (if other than REMARKETING PROVISIONS: See
as described on the U.S. dollars): N/A reverse of this Note.
reverse of this
Note. AUTHORIZED DENOMINATIONS:
N/A (Only applicable if
INTEREST RATE: To Specified Currency is
but excluding other than U.S. dollars)
September 15, 2001,
_____% per annum. DEPOSITARY: The Depository
Thereafter, at the Trust Company
interest rate set
forth in Annex A
hereto.
<PAGE>
THIS NOTE SHALL NOT BE VALID FOR ANY PURPOSE UNLESS
PRESENTED TOGETHER WITH AN ANNEX A HERETO (INCLUDING
ANY CONTINUATION THEREOF). REFERENCE IS MADE TO
ANNEX A FOR CERTAIN TERMS OF THIS NOTE.
TECO ENERGY, INC., a corporation duly organized
and existing under the laws of the State of Florida
(herein called the "Company," which term includes any
successor Corporation under the Indenture hereinafter
referred to), for value received, hereby promises to
pay to CEDE & CO., or registered assigns, the
principal sum set forth in Annex A on the Stated
Maturity, upon the presentation and surrender hereof
at the principal corporate trust office of The Bank
of New York, or its successor in trust (the
"Trustee") or such other office as the Trustee has
designated in writing, and to pay interest on the
unpaid principal balance hereof at a rate per annum
(assuming a 360-day year consisting of twelve 30-day
months) equal to the Initial Interest Rate set forth
in Annex A for the period from the Original Issue
Date to, but excluding, September 15, 2001 (the
"Initial REPS Remarketing Date"). If the Initial
Callholder (as defined above and set forth in Annex
A) elects to purchase this Note on the Initial REPS
Remarketing Date, except in the limited circumstances
described on the reverse of this Note, (a) this Note
will be subject to mandatory tender to the Initial
Callholder at 100% of the aggregate principal amount
thereof for remarketing on the Initial REPS
Remarketing Date, on the terms and subject to the
conditions described on the reverse of this Note, and
(b) will for the period from the Initial REPS
Remarketing Date to, but excluding, September 15,
2011, bear interest at the Reps Coupon Reset Rate (as
defined on the reverse of this Note). If the Initial
Callholder does not purchase this Note on the Initial
REPS Remarketing Date, this Note automatically will
be subject to mandatory tender at 100% of the
principal amount thereof for redemption on such date
by the Company or for remarketing on such date by a
Remarketing Agent (as defined on the Reverse of this
Note) in a Commercial Paper Term Mode, Long Term Rate
Mode or a new REPS Mode and will bear interest at a
rate and for a period set forth in Annex A hereto.
Interest will be payable on the Interest Payment
Dates to the Person in whose name this Note is
registered at the close of business on the related
Record Date as provided below or as set forth in
Annex A. In each case, payments shall be made in
accordance with the provisions hereof, including any
additional terms specified in Annex A, until the
principal hereof is paid or duly made available for
payment. References herein to "this Note," "hereof,"
"herein" and comparable terms shall include Annex A.
So long as this Note bears interest in the
Commercial Paper Term Mode, interest will be payable
on the Interest Rate Adjustment Date which commences
the next succeeding Interest Rate Period for this
Note and on such other dates (if any) as will be
established by the Company and set forth in Annex A
upon conversion of this Note to the Commercial Paper
Term Mode or upon remarketing of this Note in a new
Interest Rate Period in the Commercial Paper Term
Mode. So long as this Note bears interest in the
Long Term Rate Mode or the REPS Mode, interest will
be payable no less frequently than semiannually on
such dates as will be established by the Company and
set forth in Annex A upon conversion of this Note to
the Long Term Rate Mode or the REPS Mode (or upon
remarketing of this Note in a new Interest Rate
Period in the Long Term Rate Mode or the REPS Mode,
as the case may be) in the case of a fixed interest
rate, or as set forth below under "INTEREST RATE" in
the case of a floating interest rate and on the
Interest Rate Adjustment Date commencing the next
succeeding Interest Rate Period. Such interest will
be payable to the Holder hereof as of the related
Record Date, which, so long as this Note bears
interest (i) in the Initial Interest Rate Period, are
the dates specified in Annex A; (ii) in the
Commercial Paper Term Mode, is the Business Day prior
to the related Interest Payment Date; and (iii) in
the Long Term Rate Mode or the REPS Mode, is the
fifteenth calendar day (whether or not a Business
Day) immediately preceding the related Interest
Payment Date. Except as provided below under
"FLOATING INTEREST RATES," if any Interest Payment
Date would otherwise be a day that is not a Business
Day, such Interest Payment Date will be postponed to
the next succeeding Business Day, and no interest
will accrue on such payment for the period from and
after such Interest Payment Date to the date of such
payment on the next succeeding Business Day.
Interest on this Note while bearing interest in the
Commercial Paper Term Mode or at a floating interest
rate during a Long Term Rate Period or a REPS Rate
Period will be computed on the basis of actual days
elapsed over 360; provided that, if an applicable
Interest Rate Basis is the CMT Rate or Treasury Rate
(each as defined below), interest will be computed on
the basis of actual days elapsed over the actual
number of days in the year. Interest on this Note
while bearing interest in the Long Term Rate Mode or
the REPS Mode will be computed on the basis of a year
of 360 days consisting of twelve 30-day months.
Interest on this Note while bearing interest at the
Initial Interest Rate will be computed on the basis
of a year of 360 days consisting of twelve 30-day
months.
Payment of the principal of (and premium, if
any) and any such interest on this Note shall be made
in immediately available funds at the office or
agency of the Company maintained for that purpose in
the City of New York in the State of New York, in
such coin or currency of the United States of America
as at the time of payment is legal tender for payment
of public and private debts.
Reference is hereby made to the further
provisions of this Note set forth on the reverse
hereof and in Annex A hereto, which further
provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon
has been executed by the Trustee referred to on the
reverse hereof by manual signature, this Note shall
not be entitled to any benefit under the Indenture or
be valid or obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, TECO ENERGY, INC. has caused this instrument to be
duly executed.
Dated: September __, 1998
TRUSTEE'S CERTIFICATE TECO ENERGY, INC.
OF AUTHENTICATION
This is one of the series By:
designated therein referred Name:
to in the within-mentioned Title:
Indenture
THE BANK OF NEW YORK
as Authenticating Agent for the Trustee
By:______________________________
Authorized signatory
[SEAL] [SEAL]
<PAGE>
(REVERSE OF NOTE)
TECO ENERGY, INC.
Remarketed Note Due 2038
This Note is one of a duly authorized issue of
securities of the Company (herein called the
"Notes"), issued and to be issued under an Indenture
dated as of August 17, 1998, as supplemented by the
First Supplemental Indenture, dated as of September
1, 1998 (as further amended or supplemented, the
"Indenture"), between the Company and The Bank of New
York, as trustee (the "Trustee", which term includes
any successor Trustee under the Indenture), to which
Indenture reference is hereby made for a statement of
the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee
and the Holders of the Securities and of the terms
upon which the Notes are, and are to be,
authenticated and delivered. This Note is one of the
securities of the series designated on the face
hereof, limited in aggregate principal amount to
$150,000,000.
DEFINITIONS
The following terms, as used herein, have the
following meanings unless the context or use clearly
indicates another or different meaning or intent:
"Applicable Spread" shall mean the lowest bid
indication, expressed as a spread (in the form of a
percentage or in basis points) above the Base Rate,
obtained by the Callholder on the applicable
Determination Date from the bids quoted by up to five
Reference Corporate Dealers for the full aggregate
outstanding principal amount of the Notes at the
Dollar Price, but assuming (i) an issue date equal to
the applicable REPS Remarketing Date, with settlement
on such date without accrued interest, (ii) a
maturity date equal to the next succeeding Interest
Rate Adjustment Date of the Notes, and (iii) a stated
annual interest rate, payable semiannually on each
Interest Payment Date, equal to the Base Rate plus
the spread bid by the applicable Reference Corporate
Dealer. If fewer than five Reference Corporate
Dealers bid as described above, then the Applicable
Spread shall be the lowest of such bid indications
obtained as described above. The Reps Coupon Reset
Rate announced by the Callholder, absent manifest
error, shall be binding and conclusive upon the
Beneficial Owners and holders of the Notes, the
Company and the Trustee.
"Base Rate" shall mean the interest rate
established by the Callholder, after consultation
with the Company, as the applicable "base rate" at or
prior to the commencement of the REPS Mode and set
forth in Annex A hereto.
"Beneficial Owner" shall mean, if this Note is
in book-entry form, the Person who acquires an
interest in the Note, which is reflected on the
records of Depositary through its participants.
"Business Day" shall mean any day that is not a
day on which banking institutions in New York, New
York, or the state in which the office of the Trustee
at which the Indenture is administered are authorized
or obligated by law or executive order to close;
provided, however, that with respect to Notes in the
Long Term Rate Mode or the REPS Mode as to which
LIBOR is an applicable Interest Rate Basis, such day
is also a London Business Day (as hereinafter
defined). "London Business Day" means (i) if the
Index Currency (as hereinafter defined) is other than
European Currency Units ("ECU"), any day on which
dealings in such Index Currency are transacted in the
London interbank market or (ii) if the Index Currency
is ECU, any day that does not appear as an ECU non-settlement
day on the display designated as "ISDE" on
the Reuters Monitor Money Rates Service (or a day so
designated by the ECU Banking Association) or, if ECU
non-settlement days do not appear on the page (and
are not so designated), is a day on which payments in
ECU can be settled in the international banking
market.
"Calculation Agent" shall mean, if this Note
bears interest at a floating rate, an entity selected
by the Company that will determine the interest rate
in effect for each Interest Reset Period of this Note
subsequent to the initial Interest Reset Date.
"Calculation Date" shall have the meaning set
forth under "FLOATING INTEREST RATES" below.
"Callholder" shall mean the remarketing agent
granted the option under a REPS Remarketing Agreement
to purchase this Note in the REPS Mode and
subsequently remarket the repurchased Note at a Reps
Coupon Reset Rate.
"CD Rate" shall have the meaning set forth under
"FLOATING INTEREST RATES" below.
"CMT Rate" shall have the meaning set forth
under "FLOATING INTEREST RATES" below.
"Commercial Paper Term Mode" shall mean the
Interest Rate Mode in which the interest rate on this
Note is reset on a periodic basis that shall not be
less than one calendar day nor more than 364
consecutive calendar days and interest is paid as
provided for such Interest Rate Mode as set forth
herein.
"Commercial Paper Term Period" shall mean the
Interest Rate Period for this Note in the Commercial
Paper Term Mode that is a period of not less than one
nor more than 364 consecutive calendar days, as
determined by the Company (as described below under
"CONVERSION") or, if not so determined, by the
Remarketing Agent for this Note (in its best judgment
in order to obtain the lowest interest cost for such
Note). Each Commercial Paper Term Period will
commence on the Interest Rate Adjustment Date
therefor and end on the day preceding the date
specified by such Remarketing Agent as the first day
of the next Interest Rate Period for this Note. The
interest rate for any Commercial Paper Term Period
relating to this Note will be determined not later
than 11:50 a.m., New York City time, on the Interest
Rate Adjustment Date for this Note, which is the
first day of each Interest Period for this Note.
"Comparable Treasury Issues" shall mean the
United States Treasury security or securities
selected by the Callholder as having an actual or
interpolated maturity or maturities comparable or
applicable to the remaining term to the next
succeeding Interest Rate Adjustment Date of this Note
when purchased by such Callholder.
"Comparable Treasury Price" shall mean, with
respect to a REPS Remarketing Date, (a) the offer
prices for the Comparable Treasury Issues (expressed
in each case as a percentage of its principal amount)
at 11:00 a.m. on the Determination Date, as set forth
on Telerate Page 500 (or such other page as may
replace Telerate Page 500) or (b) if such page (or
any successor page) is not displayed or does not
contain such offer prices on such Determination Date,
(i) the average of the Reference Treasury Dealer
Quotations for such REPS Remarketing Date, after
excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or (ii) if the applicable
Callholder obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations. "Telerate Page
500" shall mean the display designated as "Telerate
Page 500" on Dow Jones Markets (or such other page as
may replace Telerate Page 500 on such service) or
such other service displaying the offer prices
specified in (a) above as may replace Dow Jones
Markets.
"Composite Quotations" shall mean the
statistical release entitled "Composite 3:30 P.M.
Quotations for United States Government Securities"
published by the Federal Reserve Bank of New York or
any successor publication.
"Depositary" shall mean The Depository Trust
Company or any successor depositary.
"Designated CMT Telerate Page" shall mean the
display on the Dow Jones Markets (or any successor
service) on the page specified in the applicable
Floating Interest Rate Notice (or any other page as
may replace such page on such service for the purpose
of displaying Treasury Constant Maturities as
reported in H.15(519)) for the purpose of displaying
Treasury Constant Maturities as reported in
H.15(519). If no such page is specified in the
applicable Floating Interest Rate Notice, the page
shall be 7052 for the most recent week.
"Designated CMT Maturity Index" shall mean the
original period to maturity of the United States
Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or
30 years) specified in the applicable Floating
Interest Rate Notice with respect to which the CMT
Rate will be calculated. If no such maturity is
specified in the applicable Floating Interest Rate
Notice, the Designated CMT Maturity Index shall be 2
years.
"Designated LIBOR Page" shall mean (a) if "LIBOR
Reuters" is specified in the applicable Floating
Interest Rate Notice, the display on the Reuters
Monitor Money Rates Service (or any successor
service) on the page specified in such Floating
Interest Rate Notice (or any other page as may
replace such page on such service) for the purpose of
displaying the London interbank rates of major banks
for the Index Currency, or (b) if "LIBOR Telerate" is
specified in the applicable Floating Interest Rate
Notice or neither "LIBOR Reuters" nor "LIBOR
Telerate" is specified in the applicable Floating
Interest Rate Notice as the method for calculating
LIBOR, the display on the Dow Jones Markets (or any
successor service) on the page specified in such
Floating Interest Rate Notice (or any other page as
may replace such page on such service) for the
purpose of displaying the London interbank rates of
major banks for the Index Currency.
"Determination Date" shall mean the third
Business Day immediately preceding the applicable
REPS Remarketing Date.
"Dollar Price" shall mean the present value
determined by the Callholder, as of the applicable
REPS Remarketing Date, of the Remaining Scheduled
Payments discounted to such REPS Remarketing Date, on
a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months), at the Treasury
Rate.
"DTC Participant" shall mean an account
maintained by an institution with the Depositary
through which securities are held by such institution
and accounted for by a book-entry registration and
transfer system.
"Federal Funds Rate" shall have the meaning set
forth under "FLOATING INTEREST RATES" below.
"Floating Interest Rate Notice" shall mean the
notice described under "FLOATING INTEREST RATES"
below, which is to be provided by the Company to the
Trustee and the Remarketing Agent in the event the
Company elects to apply a floating interest rate to
this Note.
"Floating Rate Maximum Interest Rate" and
"Floating Rate Minimum Interest Rate" have the
respective meanings specified under "FLOATING
INTEREST RATES" below.
"H.15 (519)" shall mean "Statistical Release
H.15(519), Selected Interest Rates" published by the
Board of Governors of the Federal Reserve System or
any successor publication.
"Index Currency" shall mean the currency or
composite currency specified in the applicable
Floating Interest Rate Notice as to which LIBOR will
be calculated. If no such currency or composite
currency is specified in the applicable Floating
Interest Rate Notice, the Index Currency will be
United States dollars.
"Index Maturity" shall mean the period to
maturity of the instrument or obligation with respect
to which the related Interest Rate Basis or Bases
will be calculated.
"Initial Interest Rate" shall mean the annual
rate of interest applicable to this Note during the
Initial Interest Rate Period as set forth on Annex A
hereto.
"Initial Interest Rate Period" shall mean the
period from the Original Issuance Date to, but
excluding, the Initial REPS Remarketing Date.
"Initial Callholder" means the Callholder with
the option to purchase this Note on the Initial REPS
Remarketing Date, the identity of which Initial
Callholder is set forth in Annex A hereto.
"Initial REPS Remarketing Date" shall mean the
date designated by the Initial Callholder, after
consultation with the Company, upon which the Initial
Callholder may, if it has so elected, remarket this
Note at the Reps Coupon Reset Rate, which date is set
forth in Annex A hereto.
"Interest Determination Date" shall have the
meaning specified under "FLOATING INTEREST RATES"
below.
"Interest Payment Date" shall mean the date on
which interest on this Note is paid, which date(s)
shall be set forth in Annex A hereto.
"Interest Rate Adjustment Date" shall mean (i)
for a particular Interest Rate Period in any Interest
Rate Mode, each date, which shall be a Business Day,
on which interest and, in the case of a floating
interest rate, the Spread (if any) and the Spread
Multiplier (if any) on this Note subject thereto
commences to accrue at the rate determined and
announced by the applicable Remarketing Agent for
such Interest Rate Period, and (ii) during the
Initial Interest Rate Period, the Original Issue
Date.
"Interest Rate Basis" shall mean the interest
rate or interest rate formula to be referenced in
determining a floating interest rate, as described
under "FLOATING INTEREST RATES" below.
"Interest Rate Mode" shall mean the mode in
which the interest rate on a Note is being
determined, i.e., the Commercial Paper Term Mode, the
Long Term Rate Mode or the REPS Mode.
"Interest Rate Period" shall mean (a) if this
Note is in the Commercial Paper Mode or Long Term
Rate Mode, the period of time commencing on the
Interest Rate Adjustment Date and extending either
(i) to, but not including, the immediately succeeding
Interest Rate Adjustment Date or (ii), if there is no
succeeding Interest Rate Adjustment date, to, but
excluding, the Stated Maturity, and during which this
Note bears interest at a particular fixed interest
rate or floating interest rate; and (b) if this Note
is in a REPS Mode, the REPS Rate Period.
"Interest Reset Date" and "Interest Reset
Period" have the respective meanings specified under
"FLOATING INTEREST RATES" below.
"LIBOR" shall have the meaning specified under
"FLOATING INTEREST RATES" below.
"Long Term Rate Mode" shall mean the Interest
Rate Mode in which the interest rate on this Note is
reset in a Long Term Rate Period and interest is paid
as provided for such Interest Rate Mode as set forth
herein.
"Long Term Rate Period" shall mean any period of
more than 364 days and not exceeding the remaining
term to the Stated Maturity of this Note.
"Notification Date" shall mean a Business Day
not later than five Business Days prior to the
applicable REPS Remarketing Date.
"Optional Redemption" shall mean the redemption
of this Note prior to its maturity at the option of
the Company as described herein.
"Optional Redemption Price" shall mean, at any
given time, the greater of either (i) 100% of the
principal amount of this Note or (ii) the Dollar
Price plus in either case accrued and unpaid interest
from the REPS Remarketing Date on the principal
amount being redeemed to the date of redemption.
"Original Issue Date" shall have the meaning set
forth on the face hereof.
"Prime Rate" shall have the meaning specified
under "FLOATING INTEREST RATES" below.
"Principal Financial Center" shall mean the
capital city of the country issuing the Index
Currency, except that with respect to United Stated
dollars, Australian dollars, Deutsche marks, Dutch
guilders, Italian lire, Swiss francs and ECUs, the
Principal Financial Center shall be the City of New
York, Sydney, Frankfurt, Amsterdam, Milan, Zurich and
Luxembourg, respectively.
"Reference Corporate Dealers" shall mean such
Reference Corporate Dealers as shall be appointed by
the Callholder after consultation with the Company
and each to be set forth in Annex A hereto.
"Reference Treasury Dealers" shall mean such
Reference Treasury Dealers as shall be appointed by
the Callholder after consultation with the Company
and each to be set forth in Annex A hereto.
"Reference Treasury Dealer Quotation" shall
mean, with respect to each Reference Treasury Dealer
and the REPS Remarketing Date, the offer prices for
the Comparable Treasury Issues (expressed in each
case as a percentage of its principal amount) quoted
in writing to the Callholder by such Reference
Treasury Dealer by 3:30 p.m., New York City time, on
the Determination Date.
"Remaining Scheduled Payments" shall mean the
remaining scheduled payments of the principal thereof
and interest thereon, calculated at the Base Rate
only, that would be due after the REPS Remarketing
Date to and including the next succeeding Interest
Rate Adjustment Date.
"Remarketing Agent" shall mean such agent or
agents, including any standby remarketing agent (each
a "Standby Remarketing Agent"), as the Company may
appoint from time to time for the purpose of
remarketing of this Note, as set forth in the
remarketing agreement that the Company shall enter
into prior to the remarketing of such Notes.
"Reps Coupon Reset Rate" shall mean the rate
equal to the Base Rate established by a Callholder,
after consultation with the Company, at or prior to
the commencement of the applicable REPS Mode, plus
the Applicable Spread, which will be based on the
Dollar Price.
"REPS Mode" shall mean the Interest Rate Mode in
which this Note shall bear interest and be subject to
remarketing as "REset Put Securities."
"REPS Period" shall mean, if this Note is
remarketed by the Initial Callholder on the Initial
REPS Remarketing Date, that portion of the REPS Rate
Period commencing on the Initial REPS Remarketing
Date up to, but excluding, the next succeeding
Interest Rate Adjustment Date. The REPS Period is
set forth in Annex A hereto.
"REPS Rate Period" shall mean an Interest Rate
Period for this Note if in a REPS Mode established by
the Company as a period of more than 364 days and
less than the remaining term to the Stated Maturity
of such Note; provided, however, that such Interest
Rate Period must end on the day prior to an Interest
Payment Date for such Note. The REPS Rate Period
shall consist of the period to and excluding the REPS
Remarketing Date and the period from and including
the REPS Remarketing Date to, but excluding, the next
succeeding Interest Rate Adjustment Date.
"REPS Remarketing Agreement" shall mean the
agreement by and between the Company and the
Callholder dated as of the date commencing the
applicable REPS Rate Period which sets forth the
rights and obligations of the Company and the
Callholder with respect to the remarketing of Notes
in the REPS Mode.
"REPS Remarketing Date" shall mean the date
designated by the Callholder, after consultation with
the Company, upon which the Callholder may elect to
remarket this Note at the Reps Coupon Reset Rate.
"Reuters Screen U.S. PRIME 1 Page" shall mean
the display designated as page "U.S. PRIME 1" on the
Reuters Monitor Money Rates Service (or any successor
service) on the U.S. PRIME 1 Page (or such other page
as may replace the U.S. PRIME 1 Page on such service)
for the purpose of displaying prime rates or base
lending rates of major United States banks.
"Special Interest Rate" shall have the meaning
set forth below under subsection (d) of "INTEREST
RATE."
"Special Mandatory Purchase" shall mean the
obligation of the Company to purchase Notes not
successfully remarketed by the Remarketing Agent and
the applicable Standby Remarketing Agent(s) by 3:00
p.m., New York City time, on any Interest Rate
Adjustment Date.
"Spread" shall mean the number of basis points
to be added to or subtracted from the related
Interest Rate Basis or Bases applicable to an
Interest Rate Period for such Note.
"Spread Multiplier" shall mean the percentage of
the related Interest Rate Basis or Bases applicable
to an Interest Rate Period by which such Interest
Rate Basis or Bases will be multiplied to determine
the applicable interest rate from time to time for an
Interest Rate Period.
"Stated Maturity" shall mean September 15, 2038.
"Treasury Bills" shall have the meaning
specified under "FLOATING INTEREST RATES" below.
"Treasury Rate" shall have the meaning specified
under "FLOATING INTEREST RATES" below.
"Weekly Rate Period" is a Commercial Paper Term
Period and will be a period of seven days commencing
on any Interest Rate Adjustment Date and ending on
the day preceding the first day of the next Interest
Rate Period for such Note.
INTEREST RATE
(a) Initial Interest Rate. This Note will
bear interest at the rate per annum (assuming a 360-day
year consisting of twelve 30-day months) during
the Initial Interest Rate Period identified as the
Initial Interest Rate in Annex A hereto.
(b) Subsequent Interest Rates. (i) If the
Initial Callholder elects to purchase this Note as
described herein, this Note will be subject to
mandatory tender to the Initial Callholder on the
Initial REPS Remarketing Date, except in the limited
circumstances described herein, and will, for the
REPS Period bear interest at the Reps Coupon Reset
Rate as defined herein and which will be set forth in
Annex A hereto.
(ii) If the Initial Callholder does not
purchase this Note on the Initial REPS Remarketing
Date, this Note automatically will be subject to
mandatory tender at 100% of the principal amount
thereof for redemption on such date by the Company or
for remarketing on such date by a Remarketing Agent
in a Commercial Paper Term Mode, a Long Term Rate
Mode or a new REPS Mode and will bear interest at a
rate and for a period set forth in Annex A hereto.
(iii) The interest rate and, in the
case of a floating interest rate, the Spread (if any)
and the Spread Multiplier (if any) for this Note will
be announced by the applicable Remarketing Agent on
or prior to the Interest Rate Adjustment Date for the
next succeeding Interest Rate Period, and will be the
minimum interest rate per annum and, in the case of a
floating interest rate, the Spread (if any) and the
Spread Multiplier (if any) necessary, during the
Interest Rate Period commencing on such Interest Rate
Adjustment Date, in the judgement of the Remarketing
Agent, to produce a par bid in the secondary market
for this Note on the date the interest rate is
established. Such rate will be effective for the
next succeeding Interest Rate Period for this Note
commencing on such Interest Rate Adjustment Date.
(c) Floating Interest Rates. The provisions
governing floating interest rates for this Note
appear below under "FLOATING INTEREST RATES."
(d) Failure of Remarketing Agent or Agents to
Announce Interest. In the event that (i) the
applicable Remarketing Agent has been removed or has
resigned and no successor has been appointed, or (ii)
such Remarketing Agent has failed to announce the
appropriate interest rate, Spread (if any) or Spread
Multiplier (if any), as the case may be, on the
Interest Rate Adjustment Date of this Note for
whatever reason, or (iii) the appropriate interest
rate, Spread (if any), or Spread Multiplier (if any),
as the case may be, or Interest Rate Period cannot be
determined for this Note for whatever reason, then
the next succeeding Interest Rate Period for this
Note will be automatically converted to a Weekly Rate
Period, and the rate of interest thereon will be
equal to the Federal Funds Rate (the "Special
Interest Rate").
(e) Notice of Interest Rate; Binding Effect.
After any Interest Rate Adjustment Date of this Note,
the Remarketing Agent or the Callholder, as the case
may be, will notify the Company and the Trustee of
the interest rate, Spread (if any) and the Spread
Multiplier (if any). Immediately upon receipt of
such notice, the Trustee will transmit such
information to the Depositary in accordance with the
Depositary's procedures as in effect from time to
time and note such rate in Annex A. The Trustee
shall confirm to the Depositary the interest rate for
the following Interest Rate Period in accordance with
the Depositary's procedures as in effect from time to
time. Any Beneficial Owner may contact the Trustee
or the Remarketing Agent in order to be advised of
the interest rate applicable to such Beneficial
Owner's Remarketed Notes. No notice of the
applicable interest rate will be sent to Beneficial
Owners.
The interest rate and other terms announced by
the Remarketing Agent, absent manifest error, will be
binding and conclusive upon the Beneficial Owners,
the Company and the Trustee.
(f) Conversion. This Note may be converted
at the option of the Company to the Commercial Paper
Term Mode, Long Term Rate Mode or REPS Mode on any
Interest Rate Adjustment Date for this Note in
accordance with the procedures set forth in the
Indenture, and will be subject to mandatory tender by
the Beneficial Owner thereof as described herein on
such Interest Rate Adjustment Date. The Beneficial
Owner of this Note will be deemed to have
automatically tendered for purchase such Note on each
Interest Rate Adjustment Date upon which such
conversion occurs and will not be entitled to further
accrual of interest on this Note after such date.
TENDER
This Note will be automatically tendered for
purchase, or deemed tendered for purchase, on each
Interest Rate Adjustment Date relating hereto. Notes
will be purchased on such Interest Rate Adjustment
Date in accordance with the procedures set forth in
"REMARKETING AND SETTLEMENT" or, as the case may be,
"REPS MODE" below.
REMARKETING AND SETTLEMENT
Interest Rate Adjustment Date; Determination of
Interest Rate. By 11:00 a.m., New York City time, on
the Interest Rate Adjustment Date for this Note, the
applicable Remarketing Agent will determine the
interest rate for such Note being remarketed to the
nearest one hundred thousandth (0.00001) of one
percent per annum for the next Interest Rate Period
in the case of a fixed interest rate, and the Spread
(if any) and Spread Multiplier (if any) in the case
of a floating interest rate; provided, that between
11:00 a.m., New York City time, and 11:50 a.m., New
York City time, the Remarketing Agent and the Standby
Remarketing Agent, if any, will use their reasonable
efforts to determine the interest rate for this Note
if it is not successfully remarketed as of the
applicable deadline specified in this paragraph. In
determining the applicable interest rate for this
Note and other terms, such Remarketing Agent will,
after taking into account market conditions as
reflected in the prevailing yields on fixed and
variable rate taxable debt securities, (i) consider
the principal amount of all Notes tendered or to be
tendered on such date and the principal amount of
such Notes prospective purchasers are or may be
willing to purchase and (ii) contact, by telephone or
otherwise, prospective purchasers and ascertain the
interest rates therefor at which they would be
willing to hold or purchase such Notes.
Notification of Results; Settlement. By 12:30
p.m., New York City time, on the Interest Rate
Adjustment Date of this Note, the applicable
Remarketing Agent will notify the Company and the
Trustee in writing (which may include facsimile or
other electronic transmission), of (i) the interest
rate or, in the case of a floating interest rate, the
initial interest rate, the Spread and Spread
Multiplier and the initial Interest Reset Date,
applicable to this Note for the next Interest Rate
Period, (ii) the Interest Rate Adjustment Date, (iii)
the Interest Payment Dates if this Notes is in the
Commercial Paper Term Mode (if other than the
Interest Rate Adjustment Date), the Long Term Rate
Mode or the REPS Mode, (iv) the optional redemption
terms, if any, and early remarketing terms, if any,
in the case of a remarketing into a Long Term Rate
Period, (v) the aggregate principal amount of all
tendered Notes and (vi) the aggregate principal
amount of such tendered Notes that such Remarketing
Agent was able to remarket, at a price equal to 100%
of the principal amount thereof plus accrued
interest, if any. Immediately after receiving such
notice and, in any case, not later than 1:30 p.m.,
New York City time, the Trustee will transmit such
information and any other settlement information
required by the Depositary to the Depositary in
accordance with the Depositary's procedures as in
effect from time to time.
By telephone at approximately 1:00 p.m., New
York City time, on such Interest Rate Adjustment
Date, the applicable Remarketing Agent will advise
each purchaser of this Note (or the DTC Participant
of each such purchaser who it is expected in turn
will advise such purchaser) of the principal amount
of such Notes that such purchaser is to purchase.
Each purchaser of this Note in a remarketing
will be required to give instructions to its DTC
Participant to pay the purchase price therefor in
same day funds to the applicable Remarketing Agent
against delivery of the principal amount of this Note
by book-entry through the Depositary by 3:00 p.m.,
New York City time, on the Interest Rate Adjustment
Date.
When tendered, or deemed tendered, this Note
will be automatically delivered to the account of the
Trustee (or such other account meeting the
requirements of the Depositary's procedures as in
effect from time to time), by book-entry through the
Depositary against payment of the purchase price or
redemption price therefor, on the Interest Rate
Adjustment Date relating thereto.
The applicable Remarketing Agent will make, or
cause the Trustee to make, payment to the DTC
participant of each tendering Beneficial Owner of
Notes subject to a remarketing, by book-entry through
the Depositary by the close of business on the
Interest Rate Adjustment Date against delivery
through the Depositary of such Beneficial Owner's
tendered Notes, of the purchase price for tendered
Notes that have been sold in the remarketing. If
this Note was purchased pursuant to a Special
Mandatory Purchase, subject to receipt of funds from
the Company or, if applicable, an institution
providing credit support, as the case may be, the
Trustee will make such payment of the purchase price
of this Notes plus accrued interest, if any, to such
date.
The transactions described above for a
remarketing of this Note will be executed on the
Interest Rate Adjustment Date for this Note through
the Depositary in accordance with the procedures of
the Depositary, and the accounts of the respective
DTC Participants will be debited and credited and
such Notes delivered by book-entry as necessary to
effect the purchases and sales thereof, in each case
as determined in the related remarketing.
Except as otherwise set forth below, this Note
when tendered in a remarketing will be purchased
solely out of the proceeds received from purchasers
of this Note in such remarketing, and none of the
Trustee, the applicable Remarketing Agent, any
Standby Remarketing Agent or the Company will be
obligated to provide funds to make payment upon any
Beneficial Owner's tender in a remarketing.
Although tendered Notes will be subject to
purchase by a Remarketing Agent in a remarketing,
such Remarketing Agent and any Standby Remarketing
Agent will not be obligated to purchase any such
Notes.
The settlement and remarketing procedures
described above, including provisions for payment by
purchasers of tendered Notes or for payment to
selling Beneficial Owners of tendered Notes, may be
modified to the extent required by the Depositary.
In addition, each Remarketing Agent may, in
accordance with the terms of the Indenture, modify
the settlement and remarketing procedures set forth
above in order to facilitate the settlement and
remarketing process.
As long as the Depositary's nominee holds the
certificates representing this Note in the book-entry
system of the Depositary, no certificates for this
Note will be delivered by any selling Beneficial
Owner to reflect any transfer of Notes effected in
any remarketing.
Failed Remarketing. If on any Interest Rate
Adjustment Date for this Note the applicable
Remarketing Agent and applicable Standby Remarketing
Agent(s) have not successfully remarketed this Note,
it will be subject to Special Mandatory Purchase by
the Company, as described under "REDEMPTION AND
ACCELERATION Special Mandatory Purchase" below.
TRANSFER OR EXCHANGE
As provided in the Indenture and subject to
certain limitations therein set forth, the transfer
of this Note is registerable in the Security
Register, upon surrender of this Note for
registration of transfer at the office or agency of
the Company in any place where the principal of (and
premium, if any) and interest on this Note are
payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory
to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new
Notes of this series and of like tenor, of authorized
denominations and for the same aggregate principal
amount, will be issued to the designated transferee
or transferees.
The Notes are issuable only in registered form
without coupons and, except for such Notes issued in
book-entry form, only in denominations of $100,000
and any integral multiple of $1,000. As provided in
the Indenture and subject to certain limitations
therein set forth, this Note is exchangeable for a
like aggregate principal amount of Notes of this
series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any
tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Note for
registration of transfer, the Company or the Trustee
and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as
the owner hereof for all purposes, whether or not
this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by
notice to the contrary.
REDEMPTION AND ACCELERATION
Special Mandatory Purchase. Subject to certain
exceptions, if on any Interest Rate Adjustment Date
for this Note, the applicable Remarketing Agent and
applicable Standby Remarketing Agent(s) have not
remarketed all the Notes, Notes that have not been
remarketed are subject to Special Mandatory Purchase
by the Company. The Company shall be obligated to
pay all accrued and unpaid interest, if any, on
unremarketed Notes to such Interest Rate Adjustment
Date. Payment of the principal amount of
unremarketed Notes by the Company, and payment of
accrued and unpaid interest, if any, by the Company,
will be made by deposit of same-day funds with the
Trustee (or such other account meeting the
requirements of the Depositary's procedures as in
effect from time to time) irrevocably in trust for
the benefit of the Beneficial Owners of Notes subject
to Special Mandatory Purchase by 3:00 p.m., New York
City time, on such Interest Rate Adjustment Date.
Failure by the Company to purchase this Note
pursuant to a Special Mandatory Purchase will
constitute an Event of Default under the Indenture in
which event the date of such failure shall constitute
a date of Maturity for this Note and the principal
thereof may be declared due and payable in the manner
and with the effect provided in the Indenture.
Following such failure to pay pursuant to a Special
Mandatory Purchase, this Note will bear interest at
the Special Interest Rate as provided above "INTEREST
RATE."
Optional Redemption on any Interest Rate
Adjustment Date. This Note is subject to redemption
at the option of the Company in whole or in part on
any Interest Rate Adjustment Date relating thereto
without notice to the holders thereof at a redemption
price equal to 100% of the principal amount set forth
in Annex A hereto.
Redemption While This Note is in the Long Term
Rate Mode. If this Note is in the Long Term Rate
Mode, it is subject to redemption at the option of
the Company at the times and upon the terms specified
at the time of conversion to or within such Long Term
Rate Mode as set forth in Annex A hereto.
Notice of redemption shall be given by mail to
the registered owner of this Note, not less than 30
nor more than 60 days prior to the Redemption Date,
all as provided in the Indenture. The Company shall
not be required to (a) issue, register the transfer
of or exchange Notes of this series during a period
beginning at the opening of business 15 days before
the day of the mailing of the relevant notice of
redemption and ending at the close of business on the
day of such mailing or (b) register the transfer of
or exchange any Notes selected for redemption, in
whole or in part, except the unredeemed portion of
any Note being redeemed in part.
In the event of redemption of this Note in part
only, a new Note or Notes of this series, of like
tenor, for the unredeemed portion hereof will be
issued in the name of the registered owner hereof
upon the cancellation hereof.
Allocation. Except in the case of a Special
Mandatory Purchase, if this Note is to be redeemed in
part, the Depositary, after receiving notice of
redemption specifying the aggregate principal amount
of this Note to be so redeemed, will determine by lot
(or otherwise in accordance with the procedures of
the Depositary) the principal amount this Note to be
redeemed from the account of each DTC Participant.
After making its determination as described above,
the Depositary will give notice of such determination
to each DTC Participant from whose account this Notes
is to be redeemed. Each such DTC Participant, upon
receipt of such notice will in turn determine the
principal amount of this Note to be redeemed from the
accounts of the Beneficial Owners of this Note for
which it serves as DTC Participant, and give notice
of such determination to the Remarketing Agent.
Acceleration. If any Event of Default with
respect to the Notes shall occur and be continuing,
the principal of the Notes may be declared due and
payable in the manner and with the effect provided in
the Indenture.
REPS MODE
Notwithstanding anything herein to the contrary,
the provisions of this section shall apply to this
Note when it is in a REPS Mode and shall supersede
any conflicting provisions of general applicability
contained elsewhere herein, during the period from,
and including, the commencement of a REPS Rate Period
to, but excluding, the next succeeding Interest Rate
Adjustment Date (or, if the Callholder does not elect
to purchase this Note on the applicable REPS
Remarketing Date designated for such REPS Mode or if
after electing to so purchase this Note the
Callholder fails to so purchase this Note for any
reason, to the REPS Remarketing Date). During the
period in which this Note is in a REPS Mode, this
Note shall bear interest and be subject to
remarketing by the applicable Callholder designated
by the Company as described herein and identified in
Annex A hereto.
With respect to this Note in the REPS Rate
Period commencing on the Original Issue Date,
references herein to (i) the Callholder and REPS
Remarketing Date shall mean the Initial Callholder
and the Initial REPS Remarketing Date and (ii) the
Interest Rate Adjustment Date on which the REPS Rate
Period commences shall mean the Original Issue Date.
(a) Interest to REPS Remarketing Date. The
Interest Rate Period for this Note in the REPS Mode
will be established by the Company (as described
under "INTEREST RATE" above) as a period of more than
364 days and not exceeding the remaining term to the
Stated Maturity of this Note; provided, however, that
such Interest Rate Period must end on the day prior
to an Interest Payment Date for this Note. A REPS
Rate Period shall consist of the period to and
excluding the REPS Remarketing Date and the period
from and including the REPS Remarketing Date to but
excluding the next succeeding Interest Rate
Adjustment Date (set forth in Annex A hereto), or,
if the Remarketing Agent does not purchase the Notes
thereon, the Interest Rate Adjustment Date. The
interest rate and, in the case of a floating interest
rate, the Spread (if any), and the Spread Multiplier
(if any), to the REPS Remarketing Date for this Note
if it is in the REPS Mode will be determined not
later than 11:50 a.m., New York City time, on the
Interest Rate Adjustment Date of this Note, which for
the REPS Mode is the first day of each Interest Rate
Period for this Note. Such interest rate will be
the minimum rate of interest and, in the case of a
floating interest rate, Spread (if any) and Spread
Multiplier (if any) necessary in the judgment of such
Callholder to produce a par bid in the secondary
market for this Note on the date the interest is
established. The designated REPS Remarketing Date
shall be an Interest Payment Date within such
Interest Rate Period.
(b) Mandatory Tender. Provided that the
Callholder gives notice to the Company and the
Trustee on or before the Notification Date of its
intention to purchase the Notes for remarketing, this
Note will be automatically tendered to such
Callholder for purchase on the applicable REPS
Remarketing Date, except in the circumstances
described under "Conversion or Redemption" below.
The purchase price for the tendered Notes to be paid
by the Callholder will be equal to 100% of the
aggregate principal amount thereof. When this Note
is tendered to the Callholder for remarketing, the
Callholder may remarket the Note for its own account
at varying prices to be determined by the Callholder
at the time of each sale. If the Callholder elects
to remarket the Note, the obligation of the
Callholder to purchase the Note on the REPS
Remarketing Date is subject to certain condition
including no material adverse change in the condition
of the Company and its subsidiaries, considered as
one enterprise, shall have occurred and that no Event
of Default (as defined in the Indenture), or any
event which, with the giving of notice or passage of
time, or both, would constitute an Event of Default,
with respect to this Note shall have occurred and be
continuing.
(c) Remarketing; Reps Coupon Reset Rate. The
Reps Coupon Reset Rate will be determined by the
Callholder by 3:30 p.m., New York City time, on the
Determination Date to the nearest one hundred-thousandth
(0.00001) of one percent per annum, and
will be equal to the sum of the Base Rate and the
Applicable Spread, which will be based on the Dollar
Price of the Notes as of the REPS Remarketing Date.
(d) Notification of Results; Settlement.
Provided the Callholder has previously notified the
Company and the Trustee on the Notification Date of
its intention to purchase all tendered Notes on the
REPS Remarketing Date, the Callholder will notify the
Company, the Trustee and the Depositary by telephone,
confirmed in writing, by 4:00 p.m., New York City
time, on the Determination Date, of the Reps Coupon
Reset Rate.
If the Callholder does not elect to purchase
this Note for remarketing on the REPS Remarketing
Date or if the Callholder gives notice of its
election to remarket this Note but for any reason
does not purchase all tendered Notes on the REPS
Remarketing Date, then this Note will be subject to
remarketing on such date by a Remarketing Agent
appointed by the Company in the Commercial Paper Term
Mode or the Long Term Rate Mode or a new REPS Mode
established by the Company; provided that, in such
case, the notice period required for conversion shall
be the lesser of ten (10) days and the period
commencing the date that the Callholder notifies the
Company that it will not purchase the Notes for
remarketing on the REPS Remarketing Date or fails to
so purchase, as the case may be.
The tendered Note will be automatically
delivered to the account of the Trustee, by book-entry
through the Depositary pending payment of the
purchase price therefor, on the applicable REPS
Remarketing Date.
The Callholder will make or cause the Trustee to
make payment to the Participant of each tendering
Beneficial Owner of Notes, by book-entry through the
Depositary by the close of business on the REPS
Remarketing Date against delivery through the
Depositary by the close of business on the REPS
Remarketing Date of such Beneficial Owner's tendered
Notes.
The transactions described above will be
executed on the REPS Remarketing Date through the
Depositary in accordance with the procedures of the
Depositary, and the accounts of the respective DTC
Participants will be debited and credited and the
Notes delivered by book-entry as necessary to effect
the purchases and sales thereof.
Transactions involving the sale and purchase of
the Notes remarketed by a Callholder on or after a
REPS Remarketing Date will settle in immediately
available funds through the Depositary's Same-Day
Funds Settlement System.
The tender and settlement procedures described
above, including provisions for payment by purchasers
of Notes in the remarketing or for payment to selling
Beneficial Owners of tendered Notes, may be modified,
notwithstanding any contrary terms of the Indenture,
to the extent required by the Depositary or, if the
book-entry system is no longer available this Note at
the time of the remarketing, to the extent required
to facilitate the tendering and remarketing of this
Note in certificated form. In addition, the
Callholder may, notwithstanding any contrary terms of
the Indenture, modify the settlement procedures set
forth above in order to facilitate the settlement
process.
As long as the Depositary's nominee holds the
certificates representing any Notes in the book-entry
system of the Depositary, no certificates for this
Note will be delivered by any selling Beneficial
Owner to reflect any transfer of such Notes effected
in the remarketing. In addition, under the terms of
this Note, the Company has agreed that,
notwithstanding any provision to the contrary set
forth in the Indenture, (a) it will use reasonable
commercial efforts to maintain this Note in book-entry
form with the Depositary or any successor
thereto and to appoint a successor depositary to the
extent necessary to maintain this Note in book-entry
form and (b) it will waive any discretionary right it
otherwise has under the Indenture to cause this Note
to be issued in certificated form.
(e) Conversion or Redemption. If the
Callholder elects to remarket the Notes on the REPS
Remarketing Date, this Note will be subject to
mandatory tender to the Callholder for remarketing on
such date, subject to the Company's right to convert
the Note to a new Interest Rate Mode or to redeem the
Note from the Callholder, in each case as described
in the next sentence. The Company will notify the
Callholder and the Trustee not later than the
Business Day immediately preceding the Determination
Date if the Company irrevocably elects to exercise
its right to either convert the Note to a new
Interest Rate Mode or to redeem the Note from the
Callholder at the Optional Redemption Price, in each
case, on the applicable REPS Remarketing Date.
In the event that the Company irrevocably elects
to convert the Note to a new Interest Rate Mode, then
as of the REPS Remarketing Date, this Note will be
subject to remarketing on such date by a Remarketing
Agent appointed by the Company in a new REPS Mode, a
Long Term Rate Mode or a Commercial Paper Term Mode
established by the Company in accordance with the
procedures set forth herein; provided that, in such
case, the notice required for conversion shall be
given no later than the Initial Determination Date.
In such case, the Company shall pay to the Initial
Callholder the excess of the Dollar Price of the
Notes over 100% of the principal amount of the Notes
in same-day funds by wire transfer to an account
designated by the Initial Callholder.
In the event that the Company irrevocably elects
to redeem this Note from the Callholder, it shall pay
such Callholder the Optional Redemption Price in
same-day funds by wire transfer to an account
designated by the Callholder on the REPS Remarketing
Date.
If notice has been given as provided in the
Indenture and funds for the redemption of this Note
called for redemption shall have been made available
on the redemption date referred to in such notice,
this Note shall cease to bear interest on the date
fixed for such redemption specified in such notice
and the only right of the Callholder from and after
the redemption date shall be to receive payment of
the Optional Redemption Price upon surrender of this
Note in accordance with such notice.
FLOATING INTEREST RATES
While this Note bears interest in the Long Term
Rate Mode or the REPS Mode (with respect to the
period from, and including, the Interest Rate
Adjustment Date commencing such period to, but
excluding, the REPS Remarketing Date), the Company
may elect a floating interest rate by providing a
notice, which will be submitted or promptly confirmed
in writing (which includes facsimile or appropriate
electronic media), received by the Trustee and the
Remarketing Agent (a "Floating Interest Rate Notice")
for such Note not less than ten (10) days prior to
the Interest Rate Adjustment Date for such Long Term
Rate Period or REPS Rate Period. The Floating
Interest Rate Notice must identify by CUSIP number or
otherwise the portion of the Note to which it relates
and state the Interest Rate Period (or portion
thereof, in the case of the REPS Mode) therefor to
which it relates. Each Floating Interest Rate Notice
must also state the Interest Rate Basis or Bases, the
initial Interest Reset Date, the Interest Reset
Period and Interest Reset Dates, the Interest Rate
Period and Interest Payment Dates, the Index Maturity
and the Floating Rate Maximum Interest Rate and/or
Floating Rate Minimum Interest Rate, if any. If one
or more of the applicable Interest Rate Bases is
LIBOR or the CMT Rate, the Floating Interest Rate
Notice will also specify the Index Currency and
Designated LIBOR Page or the Designated CMT Maturity
Index and Designated CMT Telerate Page, respectively.
If this Note bears interest at a floating rate
in a Long Term Rate Period or REPS Rate Period, such
Note will bear interest at the rate determined by
reference to the applicable Interest Rate Basis or
Bases (a) plus or minus the Spread, if any, and/or
(b) multiplied by the Spread Multiplier, if any,
specified by the Remarketing Agent, in the case of a
Long Term Rate Period, or the Callholder, in the case
of a REPS Rate Period. Commencing on the Interest
Rate Adjustment Date for such Interest Rate Period,
the rate at which interest on such Note will be
payable will be reset as of each Interest Reset Date
during such Interest Rate Period specified in the
applicable Floating Interest Rate Notice.
The applicable floating interest rate on this
Note during any Interest Rate Period will be
determined by reference to the applicable Interest
Rate Basis or Interest Rate Bases, which may include
(i) the CD Rate, (ii) the CMT Rate, (iii) the Federal
Funds Rate, (iv) LIBOR, (v) the Prime Rate, (vi) the
Treasury Rate or (vii) such other Interest Rate Basis
or interest rate formula as may be specified in the
applicable Floating Interest Rate Notice (each, an
"Interest Rate Basis").
Unless otherwise specified in the applicable
Floating Interest Rate Notice, the interest rate with
respect to each Interest Rate Basis will be
determined in accordance with the applicable
provisions below. Except as set forth above or in
the applicable Floating Interest Rate Notice, the
interest rate in effect on each day will be (i) if
such day is an Interest Reset Date, the interest rate
determined as of the Interest Determination Date
immediately preceding such Interest Reset Date or
(ii), if such day is not an Interest Reset Date, the
interest rate determined as of the Interest
Determination Date immediately preceding the most
recent Interest Reset Date. If any Interest Reset
Date would otherwise be a day that is not a Business
Day, such Interest Reset Date will be postponed to
the next succeeding Business Day, unless LIBOR is an
applicable Interest Rate Basis and such Business Day
falls in the next succeeding calendar month, in which
case such Interest Reset Date will be the immediately
preceding Business Day. In addition, if the Treasury
Rate is an applicable Interest Rate Basis and the
Interest Determination Date would otherwise fall on
an Interest Reset Date, then such Interest Reset Date
will be postponed to the next succeeding Business
Day.
The applicable Floating Interest Rate Notice
will specify whether the rate of interest will be
reset daily, weekly, monthly, quarterly, semiannually
or annually or on such other specified basis (each,
an "Interest Reset Period") and the dates on which
such rate of interest will be reset (each, an
"Interest Reset Date"). Unless otherwise specified
in the applicable Floating Interest Rate Notice, the
Interest Reset Dates will be, in the case of a
floating interest rate which resets: (i) daily, each
Business Day; (ii) weekly, the Wednesday of each week
(unless the Treasury Rate is an applicable Interest
Rate Basis, in which case the Tuesday of each week
except as described below); (iii) monthly, the third
Wednesday of each month; (iv) quarterly, the third
Wednesday of March, June, September and December of
each year, (v) semiannually, the third Wednesday of
the two months specified in the applicable Floating
Interest Rate Notice; and (vi) annually, the third
Wednesday of the month specified in the applicable
Floating Interest Rate Notice.
The interest rate applicable to each Interest
Reset Period commencing on the related Interest Reset
Date will be the rate determined as of the applicable
Interest Determination Date. The "Interest
Determination Date" with respect to the CD Rate, the
CMT Rate, the Federal Funds Rate and the Prime Rate
will be the second Business Day immediately preceding
the applicable Interest Reset Date; and the "Interest
Determination Date" with respect to LIBOR will be the
second London Business Day immediately preceding the
applicable Interest Reset Date, unless the Index
Currency is British pounds sterling, in which case
the "Interest Determination Date" will be the
applicable Interest Reset Date. The "Interest
Determination Date" with respect to the Treasury Rate
will be the day within the week in which the
applicable Interest Reset Date falls upon which day
Treasury Bills (as defined below) are normally
auctioned (Treasury Bills are normally sold at an
auction held on Monday of each week, unless that day
is a legal holiday, in which case the auction is
normally held on the following Tuesday, except that
such auction may be held on the preceding Friday);
provided, however, that if an auction is held on the
Friday of the week preceding the applicable Interest
Reset Date, the "Interest Determination Date" will be
such preceding Friday. If the interest rate of this
Note is a floating interest rate determined with
reference to two or more Interest Rate Bases
specified in the applicable Floating Interest Rate
Notice, the "Interest Determination Date" pertaining
to this Note will be the most recent Business Day
which is at least two Business Days prior to the
applicable Interest Reset Date on which each Interest
Rate Basis is determinable. Each Interest Rate Basis
will be determined as of such date, and the
applicable interest rate will take effect on the
related Interest Reset Date.
Either or both of the following may also apply
to the floating interest rate on this Note for an
Interest Rate Period: (i) a floating rate maximum
interest rate, or ceiling, that may accrue during any
Interest Reset Period (the "Floating Rate Maximum
Interest Rate") and (ii) a floating rate minimum
interest rate, or floor, that may accrue during any
Interest Reset Period (the "Floating Rate Minimum
Interest Rate"). In addition to any Floating Rate
Maximum Interest Rate that may apply, the interest
rate on this Note will in no event be higher than the
maximum rate permitted by New York law, as the same
may be modified by United States laws of general
application.
Except as provided below or in the applicable
Floating Interest Rate Notice, interest will be
payable, in the case of floating interest rates which
reset: (i) daily, weekly or monthly, on the third
Wednesday of each month or on the third Wednesday of
March, June, September and December of each year, as
specified in the applicable Floating Interest Rate
Notice; (ii) quarterly, on the third Wednesday of
March, June, September and December of each year;
(iii) semiannually, on the third Wednesday of the two
months of each year specified in the applicable
Floating Interest Rate Notice; and (iv) annually, on
the third Wednesday of the month of each year
specified in the applicable Floating Interest Rate
Notice and, in each case, on the Business Day
immediately following the applicable Long Term Rate
Period or REPS Rate Period, as the case may be. If
any Interest Payment Date for the payment of interest
at a floating rate (other than following the end of
the applicable Long Term Rate Period or REPS Rate
Period, as the case may be) would otherwise be a day
that is not a Business Day, such Interest Payment
Date will be postponed to the next succeeding
Business Day, except that if LIBOR is an applicable
Interest Rate Basis and such Business Day falls in
the next succeeding calendar month, such Interest
Payment Date will be the immediately preceding
Business Day.
All percentages resulting from any calculation
of floating interest rates will be rounded to the
nearest one hundred thousandth of a percentage point,
with five one-millionths of a percentage point
rounded upwards (e.g., 9.876545% (or .09876545) would
be rounded to 9.87655% (or .0987655)), and all
amounts used in or resulting from such calculation
will be rounded, in the case of United States
dollars, to the nearest cent or, in the case of a
foreign currency or composite currency, to the
nearest unit (with one-half cent or unit being
rounded upwards).
Accrued floating rate interest will be
calculated by multiplying the principal amount of the
this Note by an accrued interest factor. Such accrued
interest factor will be computed by adding the
interest factor calculated for each day in the
applicable Interest Reset Period. Unless otherwise
specified in the applicable Floating Interest Rate
Notice, the interest factor for each such day will be
computed by dividing the interest rate applicable to
such day by 360, if an applicable Interest Rate Basis
is the CD Rate, the Federal Funds Rate, LIBOR or the
Prime Rate, or by the actual number of days in the
year if an applicable Interest Rate Basis is the CMT
Rate or the Treasury Rate. Unless otherwise
specified in the applicable Floating Interest Rate
Notice, if the floating interest rate is calculated
with reference to two or more Interest Rate Bases,
the interest factor will be calculated in each period
in the same manner as if only one of the applicable
Interest Rate Bases applied as specified in the
applicable Floating Interest Rate Notice.
If this Note bears interest at a floating rate,
the applicable Remarketing Dealer will determine the
interest rate in effect from the Interest Rate
Adjustment Date for this Note to the initial Interest
Reset Date. A calculation agent selected by the
Company (a "Calculation Agent") will determine the
interest rate in effect for each Interest Reset
Period thereafter. Upon request of the Beneficial
Owner of this Note, after any Interest Rate
Adjustment Date, the Calculation Agent or the
Remarketing Dealer will disclose the interest rate
and, in the case of a floating interest rate,
Interest Rate Basis or Bases, Spread (if any) and
Spread Multiplier (if any), and in each case the
other terms applicable to this Note then in effect
and, if determined, the interest rate that will
become effective as a result of a determination made
for the next succeeding Interest Reset Date with
respect to this Note. Except as described herein if
this Note is earning interest at floating rates, no
notice of the applicable interest rate, Spread (if
any) or Spread Multiplier (if any) will be sent to
the Beneficial Owner of this Note.
Unless otherwise specified in the applicable
Floating Interest Rate Notice, the "Calculation
Date," if applicable, pertaining to any Interest
Determination Date will be the earlier of (i) the
tenth calendar day after such Interest Determination
Date or, if such day is not a Business Day, the next
succeeding Business Day or (ii) the Business Day
immediately preceding the applicable Interest Payment
Date or Maturity, as the case may be.
CD Rate. If an Interest Rate Basis for this
Note is specified in the applicable Floating Interest
Rate Notice as the "CD Rate," the CD Rate shall mean,
with respect to any Interest Determination Date
relating to this Note for which the interest rate is
determined with reference to the CD Rate (a "CD Rate
Interest Determination Date"), the rate on such date
for negotiable United States dollar certificates of
deposit having the Index Maturity specified in the
applicable Floating Interest Rate Notice as published
in H.15(519) under the heading "CDs (Secondary
Market)," or, if not published by 3:00 p.m., New York
City time, on the related Calculation Date, the rate
on such CD Rate Interest Determination Date for
negotiable United States dollar certificates of
deposit of the Index Maturity specified in the
applicable Floating Interest Rate Notice as published
in Composite Quotations under the heading
"Certificates of Deposit." If such rate is not yet
published in either H.15(519) or Composite Quotations
by 3:00 p.m., New York City time, on the related
Calculation Date, then the CD Rate on such CD Rate
Interest Determination Date will be calculated by the
Calculation Agent and will be the arithmetic mean of
the secondary market offered rates as of 10:00 a.m.,
New York City time, on such CD Rate Interest
Determination Date, of three leading nonbank dealers
in negotiable United States dollar certificates of
deposit in the City of New York (which may include
the Remarketing Agent or its affiliates) selected by
the Calculation Agent, after consultation with the
Company, for negotiable United States dollars
certificates of deposit of major United States money
center banks for negotiable certificates of deposit
with a remaining maturity closest to the Index
Maturity specified in the applicable Floating
Interest Rate Notice in an amount that is
representative for a single transaction in that
market at that time; provided, however, that if the
dealers so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the CD Rate
determined as of such CD Rate Interest Determination
Date will be the CD Rate in effect on such CD Rate
Interest Determination Date.
CMT Rate. If an Interest Rate Basis for this
Note is specified in the applicable Floating Interest
Rate Notice as the "CMT Rate," the CMT Rate shall
mean, with respect to any Interest Determination Date
relating to this Note for which the interest rate is
determined with reference to the CMT Rate (a "CMT
Rate Interest Determination Date"), the rate
displayed on the Designated CMT Telerate Page (as
defined below) under the caption "...Treasury
Constant Maturities ... Federal Reserve Board Release
H.15 ... Mondays Approximately 3:45 P.M.," under the
column for the Designated CMT Maturity Index (as
defined below) for (i) if the Designated CMT Telerate
Page is 7055, the rate on such CMT Rate Interest
Determination Date and (ii) if the Designated CMT
Telerate Page is 7052, the weekly or monthly average,
as specified in the Floating Interest Rate Notice,
for the week or the month, as applicable, ended
immediately preceding the week or the month, as
applicable, in which the related CMT Rate Interest
Determination Date occurs. If such rate is no longer
displayed on the relevant page or is not displayed by
3:00 p.m., New York City time, on the related
Calculation Date, then the CMT Rate for such CMT Rate
Interest Determination Date will be such treasury
constant maturity rate for the Designated CMT
Maturity Index as published in H.15(519). If such
rate is no longer published or is not published by
3:00 p.m., New York City time, on the related
Calculation Date, then the CMT Rate on such CMT Rate
Interest Determination Date will be such treasury
constant maturity rate for the Designated CMT
Maturity Index (or other United States Treasury rate
for the Designated CMT Maturity Index) for the CMT
Rate Interest Determination Date with respect to such
Interest Reset Date as may then be published by
either the Board of Governors of the Federal Reserve
System or the United States Department of the
Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the
Designated CMT Telerate Page and published in
H.15(519). If such information is not provided by
3:00 p.m., New York City time, on the related
Calculation Date, then the CMT Rate on the CMT Rate
Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity,
based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30
p.m., New York City time, on such CMT Rate Interest
Determination Date reported, according to their
written records, by three leading primary United
States government securties dealers (each, a
"Reference Dealer") in the City of New York (which
may include the Remarketing Agent or its affiliates)
selected by the Calculation Agent after consultation
with the Company (from five such Reference Dealers
selected by the Calculation Agent, after consultation
with the Company, and eliminating the highest
quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event
of equality, one of the lowest)), for the most
recently issued direct noncallable fixed rate
obligations of the United States ("Treasury Notes")
with an original maturity of approximately the
Designated CMT Maturity Index and a remaining term to
maturity of not less than such Designated CMT
Maturity Index minus one year. If the Calculation
Agent is unable to obtain three such Treasury Note
quotations, the CMT Rate on such CMT Rate Interest
Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity
based on the arithmetic mean of the secondary market
offer side prices as of approximately 3:30 p.m., New
York City time, on such CMT Rate Interest
Determination Date of three Reference Dealers in the
City of New York (from five such Reference Dealers
selected by the Calculation Agent, after consultation
with the Company, and eliminating the highest
quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event
of equality, one of the lowest)), for Treasury Notes
with an original maturity of the number of years that
is the next highest to the Designated CMT Maturity
Index and a remaining term to maturity closest to the
Designated CMT Maturity Index and in an amount of at
least U.S. $100 million. If three or four (and not
five) of such Reference Dealers are quoting as
described above, then the CMT Rate will be based on
the arithmetic mean of the offer prices obtained and
neither the highest nor the lowest of such quotes
will be eliminated; provided, however, that if fewer
than three Reference Dealers so selected by the
Calculation Agent, after consultation with the
Company, are quoting as mentioned herein, the CMT
Rate determined as of such CMT Rate Interest
Determination Date will be the CMT Rate in effect on
such CMT Rate Interest Determination Date. If two
Treasury Notes with an original maturity as described
in the second preceding sentence have remaining terms
to maturity equally close to the Designated CMT
Maturity Index, the Calculation Agent, after
consultation with the Company, will obtain from five
Reference Dealers quotations for the Treasury Note
with the shorter remaining term to maturity.
Federal Funds Rate. If an Interest Rate Basis
for this Note is specified in the applicable Floating
Interest Rate Notice, as the "Federal Funds Rate",
the Federal Funds Rate means, with respect to any
Interest Determination Date relating to this Note for
which the interest rate is determined with reference
to the Federal Funds Rate (a "Federal Funds Rate
Interest Determination Date"), the rate on such date
for United States dollar federal funds as published
in H.15(519) under the heading "Federal Funds
(Effective)" or, if not published by 3:00 p.m., New
York City time, on the Calculation Date, the rate on
such Federal Funds Rate Interest Determination Date
as published in Composite Quotations under the
heading "Federal Funds/Effective Rate." If such rate
is not published in either H.15(519) or Composite
Quotations by 3:00 p.m., New York City time, on the
related Calculation Date, then the Federal Funds Rate
on such Federal Funds Rate Interest Determination
Date will be calculated by the Calculation Agent and
will be the arithmetic mean of the rates for the last
transaction in overnight United States dollar federal
funds arranged by three leading brokers of federal
funds transactions in the City of New York (which may
include the Remarketing Agent or its affiliates)
selected by the Calculation Agent after consultation
with the Company, prior to 9:00 a.m., New York City
time, on such Federal Funds Rate Interest
Determination Date; provided, however, that if the
brokers so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the Federal
Funds Rate determined as of such Federal Funds Rate
Interest Determination Date will be the Federal Funds
Rate in effect on such Federal Funds Rate Interest
Determination Date.
LIBOR. If an Interest Rate Basis for this Note
is specified in the applicable Floating Interest Rate
Notice as "LIBOR," LIBOR shall mean the rate
determined by the Calculation Agent as of the
applicable Interest Determination Date (a "LIBOR
Interest Determination Date") in accordance with the
following provisions:
(i) If (a) "LIBOR Reuters" is specified in the
applicable Floating Interest Rate Notice, the
arithmetic mean of the offered rates (unless the
Designated LIBOR Page by its terms provides only
for a single rate, in which case such single
rate will be used) for deposits in the Index
Currency having the Index Maturity specified in
the applicable Floating Interest Rate Notice,
commencing on the applicable Interest Reset
Date, that appear (or, if only a single rate is
required as aforesaid, appears) on the
Designated LIBOR Page as of 11:00 a.m., London
time, on such LIBOR Interest Determination Date,
or (b) "LIBOR Telerate" is specified in the
applicable Floating Interest Rate Notice, or if
neither "LIBOR Reuters" nor "LIBOR Telerate" is
specified in the applicable Floating Interest
Rate Notice as the method for calculating LIBOR,
the rate for deposits in the Index Currency
having the Index Maturity specified in the
applicable Floating Interest Rate Notice,
commencing on such Interest Reset Date, that
appears on the Designated LIBOR Page as of 11:00
a.m., London time, on such LIBOR Interest
Determination Date. If fewer than two such
offered rates appear, or if no such rate
appears, as applicable, LIBOR on such LIBOR
Interest Determination Date will be determined
in accordance with the provisions described in
clause (ii) below.
(ii) With respect to a LIBOR Interest
Determination Date on which fewer than two
offered rates appear, or no rate appears, as the
case may be, on the Designated LIBOR Page as
specified in clause(i) above, the Calculation
Agent will request the principal London offices
of each of four major reference banks in the
London interbank market, as selected by the
Calculation Agent, after consultation with the
Company, to provide the Calculation Agent with
its offered quotation for deposits in the Index
Currency for the period of the Index Maturity
specified in the applicable Floating Interest
Rate Notice, commencing on the applicable
Interest Reset Date, to prime banks in the
London interbank market at approximately 11:00
a.m., London time, on such LIBOR Interest
Determination Date and in a principal amount
that is representative for a single transaction
in such Index Currency in such market at such
time. If at least two such quotations are so
provided, then LIBOR on such LIBOR Interest
Determination Date will be the arithmetic mean
of such quotations. If fewer than two such
quotations are so provided, then LIBOR on such
LIBOR Interest Determination Date will be the
arithmetic mean of the rates quoted at
approximately 11:00 a.m., in the applicable
Principal Financial Center, on such LIBOR
Interest Determination Date by three major banks
in such Principal Financial Center selected by
the Calculation Agent, after consultation with
the Company, for loans in the Index Currency to
leading European banks, having the Index
Maturity specified in the applicable Floating
Interest Rate Notice and in a principal amount
that is representative for a single transaction
in such Index Currency in such market at such
time; provided, however, that if the banks so
selected by the Calculation Agent are not
quoting as mentioned in this sentence, LIBOR
determined as of such LIBOR Interest
Determination Date will be LIBOR in effect on
such LIBOR Interest Determination Date.
Prime Rate. If an Interest Rate Basis for this
Note is specified in the applicable Floating Interest
Rate Notice as the "Prime Rate," Prime Rate shall
mean, with respect to any Interest Determination Date
relating to this Note for which the interest rate is
determined with reference to the Prime Rate (a "Prime
Rate Interest Determination Date"), the rate on such
date as such rate is published in H.15(519) under the
heading "Bank Prime Loan." If such rate is not
published prior to 3:00 p.m., New York City time, on
the related Calculation Date, then the Prime Rate
will be the arithmetic mean of the rates of interest
publicly announced by each bank that appears on the
Reuters Screen U.S. PRIME 1 Page as such bank's prime
rate or base lending rate as in effect for such Prime
Rate Interest Determination Date. If fewer than four
such rates appear on the Reuters Screen U.S. PRIME 1
Page for such Prime Rate Interest Determination Date,
the Prime Rate will be the arithmetic mean of the
prime rates quoted on the basis of the actual number
of days in the year divided by a 360-day year as of
the close of business on such Prime Rate Interest
Determination Date by four major money center banks
(which may include the Calculation Agent) in the City
of New York selected by the Calculation Agent, after
consultation with the Company. If fewer than four
such quotations are so provided, the Prime Rate will
be the arithmetic mean of four prime rates quoted on
the basis of the actual number of days in the year
divided by a 360-day year as of the close of business
on such Prime Rate Interest Determination Date as
furnished in the City of New York by the major money
center banks, if any, that have provided such
quotations and by as many substitute banks or trust
companies (which may include the Calculation Agent)
as necessary in order to obtain four such prime rate
quotations, provided such substitute banks or trust
companies are organized and doing business under the
laws of the United States, or any State thereof, have
total equity capital of at least U.S. $500 million
and are each subject to supervision or examination by
Federal or State authority, selected by the
Calculation Agent, after consultation with the
Company, to provide such rate or rates; provided,
however, that if the banks or trust companies so
selected by the Calculation Agent are not quoting as
mentioned in this sentence, the Prime Rate determined
as of such Prime Rate Interest Determination Date
will be the Prime Rate in effect on such Prime Rate
Interest Determination Date.
Treasury Rate. If an Interest Rate Basis for
this Note is specified in the applicable Floating
Interest Rate Notice as the "Treasury Rate," Treasury
Rate means, with respect to any Interest
Determination Date relating to this Note for which
the interest rate is determined with reference to the
Treasury Rate (a "Treasury Rate Interest
Determination Date"), as the rate from the auction
held on such Treasury Rate Interest Determination
Date (the "Auction") of direct obligations of the
United States ("Treasury Bills") having the Index
Maturity specified in the applicable Floating
Interest Rate Notice, as such rate is published in
H.15(519) under the heading "Treasury Bills-auction
average (investment)" or, if not published by 3:00
p.m., New York City time, on the related Calculation
Date, the auction average rate of such Treasury Bills
(expressed as a bond equivalent on the basis of a
year of 365 or 366 days, as applicable, and applied
on a daily basis) as otherwise announced by the
United States Department of the Treasury. In the
event that the results of the Auction of Treasury
Bills having the Index Maturity specified in the
applicable Floating Interest Rate Notice are not
reported as provided above by 3:00 p.m., New York
City time, on such Calculation Date, or if no such
Auction is held, then the Treasury Rate will be
calculated by the Calculation Agent, and will be a
yield to maturity (expressed as a bond equivalent on
the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) of the
arithmetic mean of the secondary market bid rates, as
of approximately 3:30 p.m., New York City time, on
such Treasury Rate Interest Determination Date, of
three leading primary United States government
securities dealers (which may include the Remarketing
Agent or its affiliates) selected by the Calculation
Agent, after consultation with the Company, for the
issue of Treasury Bills with a remaining maturity
closest to the Index Maturity specified in the
applicable Floating Interest Rate Notice; provided,
however, that if the dealers so selected by the
Calculation Agent are not quoting as mentioned in
this sentence, the Treasury Rate determined as of
such Treasury Rate Interest Determination Date will
be the Treasury Rate in effect on such Treasury Rate
Interest Determination Date.
OTHER PROVISIONS
The Indenture permits, with certain exceptions
as therein provided, the amendment thereof and the
modification of the rights and obligations of the
Company and the rights of the Holders of the
Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee
with the consent of the Holders of a majority in
principal amount of the Securities at the time
Outstanding of each series to be affected and of the
Holders of 66 2/3% in principal amount of the
Securities at the time Outstanding of all series to
be affected. The Indenture also contains provisions
permitting the Holders of specified percentages in
principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their
consequences. To the extent permitted by law, any
such consent or waiver by the Holder of this Note
shall be conclusive and binding upon such Holder and
upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not
notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no
provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal
of (and premium, if any) and interest on this Note at
the times, place and rate, and in the coin or
currency, herein prescribed.
All terms used in this Note which are defined in
the Indenture shall have the meanings assigned to
them in the Indenture.
This Note shall be governed by and construed in
accordance with the laws of The State of New York.<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription
on the face of this instrument, shall be construed as though
they were written out in full according to applicable laws or
regulations:
TEN COM -- as tenants in common UNIF GIFT MIN ACT--_____ CUSTODIAN____
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right Under Uniform Gifts to Minors Act
of survivorship and not as
tenants in common ___________________________
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s),assign(s)
and transfer(s) unto
Please Insert Social Security or
Other Identifying Number of Assignee
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL
ZIP CODE OF ASSIGNEE
the within Security of TECO Energy, Inc. and does hereby
irrevocably constitute and appoint
__________________________________________________ attorney to
transfer said Security on the books of the Company, with full power of
substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatsoever.
<PAGE>
ANNEX A
Remarketed Note Due 2038
Initial Interest Rate Period
CUSIP Number:
Principal Amount: $150,000,000
Original Issue Date: September __, 1998
Issue Price: 100%
Stated Maturity: September 15, 2038
Initial Interest Rate: [_____] % per annum
Interest Payment Dates: September 15 and March 15, commencing
March 15, 1999
Record Dates: Fifteenth calendar day immediately
preceding the related Interest Payment
Date whether or not a Business Day
Initial Callholder: Morgan Stanley & Co. Incorporated
Initial REPS
Remarketing Date: September 15, 2001
REPS Period: September 15, 2001 up to, but excluding,
September 15, 2011
Base Rate: [_____] %
REPS Coupon Reset Rate:
Reference Corporate Dealers:
Reference Treasury Dealers:
<PAGE>
Subsequent Interest Rate Period(s)
CUSIP Number:
Principal Amount:
Interest Rate Adjustment Date:
Record Date(s):
Interest Payment Date(s):
Interest Rate Mode:
[ ] Commercial Paper Term Mode
[ ] Long Term Rate Mode
[ ] REPS Mode
[ ] Callholder:
[ ] REPS Remarketing Date:
[ ] REPS Rate Period:
[ ] Base Rate:
[ ] Reps Coupon Reset Rate:
[ ] Reference Corporate Dealers:
[ ] Reference Treasury Dealers:
<PAGE>
Interest Rate:
[ ] Fixed Rate:
[ ] Floating Rate:
Calculation Agent: . . . . . . . . . . . . . . . . . .
Initial Interest Rate to Initial Interest Reset
Date:
Interest Rate Basis(es):
[ ] CD Rate
Index Maturity:
[ ] CMT Rate
Index Maturity:
Designated CMT Telerate Page:
[ ] Commercial Paper Rate
Index Maturity:
[ ] Federal Funds Rate
[ ] LIBOR
[ ] LIBOR Reuters
Index Currency:
Index Maturity:
[ ] LIBOR Telerate
Index Currency:
Index Maturity:
[ ] Prime Rate
[ ] Treasury Rate
Index Maturity:
Spread (+/-):
Spread Multiplier:
Floating Rate Maximum Interest Rate:
Floating Rate Minimum Interest Rate:
Initial Interest Reset Date:
Interest Reset Date:
Interest Reset Period(s):
Day Count Convention:
[ ] Actual/360
[ ] Actual/Actual
[ ] 30/360
Applicable Interest Rate Basis:
Optional Redemption Provisions (Long Term Rate Mode):
Applicable Redemption Period Redemption Price
Other or Alternative Terms of Optional Repayment:
Early Remarketing Provisions (Long Term Rate Mode):
Initial Early Remarketing Date:_____________
Initial Early Remarketing Premium:__________
Annual Early Remarketing Premium Percentage
Reduction:_________
Other or Alternative Terms of Early Remarketing:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
Other Provisions:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
EXHIBIT 4.2
CUSIP NO.:_______________ PRINCIPAL AMOUNT: $150,000,000
REGISTERED NO. 1
TECO ENERGY, INC.
Remarketed Note Due 2038
/x/ Check this box if the Note is a Global Note.
Applicable if the Note is a Global Note:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
This Note is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name
of Cede & Co., or such other nominee of The Depository Trust
Company, a New York corporation, or any successor depositary
("Depositary"), as requested by an authorized representative of
the Depositary. This Note is exchangeable for Notes registered
in the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Indenture and
may not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary.
ORIGINAL ISSUE DATE: INTEREST PAYMENT DATES: INITIAL CALLHOLDER: Morgan
September __, 1998 March and September 15 of Stanley & Co. Incorporated,
each year, up to but or its assignee or successor
excluding September 15,
ISSUE PRICE: 100% 2001 and commencing March SINKING FUND: N/A
(as a percentage of 15, 1999. From and
principal amount) including September 15, YIELD TO MATURITY: N/A
2001, on the dates
STATED MATURITY: described in Annex A REDEMPTION, REPURCHASE
September 15, 2038, hereto. AND CONVERSION OPTIONS: See
subject to mandatory reverse of this Note.
tender to the SPECIFIED CURRENCY: U.S.
Callholder, if any, dollars (if other than REMARKETING PROVISIONS: See
as described on the U.S. dollars): N/A reverse of this Note.
reverse of this
Note. AUTHORIZED DENOMINATIONS:
N/A (Only applicable if
INTEREST RATE: To Specified Currency is
but excluding other than U.S. dollars)
September 15, 2001,
_____% per annum. DEPOSITARY: The Depository
Thereafter, at the Trust Company
interest rate set
forth in Annex A
hereto.
<PAGE>
THIS NOTE SHALL NOT BE VALID FOR ANY PURPOSE UNLESS
PRESENTED TOGETHER WITH AN ANNEX A HERETO (INCLUDING
ANY CONTINUATION THEREOF). REFERENCE IS MADE TO
ANNEX A FOR CERTAIN TERMS OF THIS NOTE.
TECO ENERGY, INC., a corporation duly organized
and existing under the laws of the State of Florida
(herein called the "Company," which term includes any
successor Corporation under the Indenture hereinafter
referred to), for value received, hereby promises to
pay to CEDE & CO., or registered assigns, the
principal sum set forth in Annex A on the Stated
Maturity, upon the presentation and surrender hereof
at the principal corporate trust office of The Bank
of New York, or its successor in trust (the
"Trustee") or such other office as the Trustee has
designated in writing, and to pay interest on the
unpaid principal balance hereof at a rate per annum
(assuming a 360-day year consisting of twelve 30-day
months) equal to the Initial Interest Rate set forth
in Annex A for the period from the Original Issue
Date to, but excluding, September 15, 2001 (the
"Initial REPS Remarketing Date"). If the Initial
Callholder (as defined above and set forth in Annex
A) elects to purchase this Note on the Initial REPS
Remarketing Date, except in the limited circumstances
described on the reverse of this Note, (a) this Note
will be subject to mandatory tender to the Initial
Callholder at 100% of the aggregate principal amount
thereof for remarketing on the Initial REPS
Remarketing Date, on the terms and subject to the
conditions described on the reverse of this Note, and
(b) will for the period from the Initial REPS
Remarketing Date to, but excluding, September 15,
2011, bear interest at the Reps Coupon Reset Rate (as
defined on the reverse of this Note). If the Initial
Callholder does not purchase this Note on the Initial
REPS Remarketing Date, this Note automatically will
be subject to mandatory tender at 100% of the
principal amount thereof for redemption on such date
by the Company or for remarketing on such date by a
Remarketing Agent (as defined on the Reverse of this
Note) in a Commercial Paper Term Mode, Long Term Rate
Mode or a new REPS Mode and will bear interest at a
rate and for a period set forth in Annex A hereto.
Interest will be payable on the Interest Payment
Dates to the Person in whose name this Note is
registered at the close of business on the related
Record Date as provided below or as set forth in
Annex A. In each case, payments shall be made in
accordance with the provisions hereof, including any
additional terms specified in Annex A, until the
principal hereof is paid or duly made available for
payment. References herein to "this Note," "hereof,"
"herein" and comparable terms shall include Annex A.
So long as this Note bears interest in the
Commercial Paper Term Mode, interest will be payable
on the Interest Rate Adjustment Date which commences
the next succeeding Interest Rate Period for this
Note and on such other dates (if any) as will be
established by the Company and set forth in Annex A
upon conversion of this Note to the Commercial Paper
Term Mode or upon remarketing of this Note in a new
Interest Rate Period in the Commercial Paper Term
Mode. So long as this Note bears interest in the
Long Term Rate Mode or the REPS Mode, interest will
be payable no less frequently than semiannually on
such dates as will be established by the Company and
set forth in Annex A upon conversion of this Note to
the Long Term Rate Mode or the REPS Mode (or upon
remarketing of this Note in a new Interest Rate
Period in the Long Term Rate Mode or the REPS Mode,
as the case may be) in the case of a fixed interest
rate, or as set forth below under "INTEREST RATE" in
the case of a floating interest rate and on the
Interest Rate Adjustment Date commencing the next
succeeding Interest Rate Period. Such interest will
be payable to the Holder hereof as of the related
Record Date, which, so long as this Note bears
interest (i) in the Initial Interest Rate Period, are
the dates specified in Annex A; (ii) in the
Commercial Paper Term Mode, is the Business Day prior
to the related Interest Payment Date; and (iii) in
the Long Term Rate Mode or the REPS Mode, is the
fifteenth calendar day (whether or not a Business
Day) immediately preceding the related Interest
Payment Date. Except as provided below under
"FLOATING INTEREST RATES," if any Interest Payment
Date would otherwise be a day that is not a Business
Day, such Interest Payment Date will be postponed to
the next succeeding Business Day, and no interest
will accrue on such payment for the period from and
after such Interest Payment Date to the date of such
payment on the next succeeding Business Day.
Interest on this Note while bearing interest in the
Commercial Paper Term Mode or at a floating interest
rate during a Long Term Rate Period or a REPS Rate
Period will be computed on the basis of actual days
elapsed over 360; provided that, if an applicable
Interest Rate Basis is the CMT Rate or Treasury Rate
(each as defined below), interest will be computed on
the basis of actual days elapsed over the actual
number of days in the year. Interest on this Note
while bearing interest in the Long Term Rate Mode or
the REPS Mode will be computed on the basis of a year
of 360 days consisting of twelve 30-day months.
Interest on this Note while bearing interest at the
Initial Interest Rate will be computed on the basis
of a year of 360 days consisting of twelve 30-day
months.
Payment of the principal of (and premium, if
any) and any such interest on this Note shall be made
in immediately available funds at the office or
agency of the Company maintained for that purpose in
the City of New York in the State of New York, in
such coin or currency of the United States of America
as at the time of payment is legal tender for payment
of public and private debts.
Reference is hereby made to the further
provisions of this Note set forth on the reverse
hereof and in Annex A hereto, which further
provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon
has been executed by the Trustee referred to on the
reverse hereof by manual signature, this Note shall
not be entitled to any benefit under the Indenture or
be valid or obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, TECO ENERGY, INC. has caused this instrument to be
duly executed.
Dated: September __, 1998
TRUSTEE'S CERTIFICATE TECO ENERGY, INC.
OF AUTHENTICATION
This is one of the series By:
designated therein referred Name:
to in the within-mentioned Title:
Indenture
THE BANK OF NEW YORK
as Authenticating Agent for the Trustee
By:______________________________
Authorized signatory
[SEAL] [SEAL]
<PAGE>
(REVERSE OF NOTE)
TECO ENERGY, INC.
Remarketed Note Due 2038
This Note is one of a duly authorized issue of
securities of the Company (herein called the
"Notes"), issued and to be issued under an Indenture
dated as of August 17, 1998, as supplemented by the
First Supplemental Indenture, dated as of September
1, 1998 (as further amended or supplemented, the
"Indenture"), between the Company and The Bank of New
York, as trustee (the "Trustee", which term includes
any successor Trustee under the Indenture), to which
Indenture reference is hereby made for a statement of
the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee
and the Holders of the Securities and of the terms
upon which the Notes are, and are to be,
authenticated and delivered. This Note is one of the
securities of the series designated on the face
hereof, limited in aggregate principal amount to
$150,000,000.
DEFINITIONS
The following terms, as used herein, have the
following meanings unless the context or use clearly
indicates another or different meaning or intent:
"Applicable Spread" shall mean the lowest bid
indication, expressed as a spread (in the form of a
percentage or in basis points) above the Base Rate,
obtained by the Callholder on the applicable
Determination Date from the bids quoted by up to five
Reference Corporate Dealers for the full aggregate
outstanding principal amount of the Notes at the
Dollar Price, but assuming (i) an issue date equal to
the applicable REPS Remarketing Date, with settlement
on such date without accrued interest, (ii) a
maturity date equal to the next succeeding Interest
Rate Adjustment Date of the Notes, and (iii) a stated
annual interest rate, payable semiannually on each
Interest Payment Date, equal to the Base Rate plus
the spread bid by the applicable Reference Corporate
Dealer. If fewer than five Reference Corporate
Dealers bid as described above, then the Applicable
Spread shall be the lowest of such bid indications
obtained as described above. The Reps Coupon Reset
Rate announced by the Callholder, absent manifest
error, shall be binding and conclusive upon the
Beneficial Owners and holders of the Notes, the
Company and the Trustee.
"Base Rate" shall mean the interest rate
established by the Callholder, after consultation
with the Company, as the applicable "base rate" at or
prior to the commencement of the REPS Mode and set
forth in Annex A hereto.
"Beneficial Owner" shall mean, if this Note is
in book-entry form, the Person who acquires an
interest in the Note, which is reflected on the
records of Depositary through its participants.
"Business Day" shall mean any day that is not a
day on which banking institutions in New York, New
York, or the state in which the office of the Trustee
at which the Indenture is administered are authorized
or obligated by law or executive order to close;
provided, however, that with respect to Notes in the
Long Term Rate Mode or the REPS Mode as to which
LIBOR is an applicable Interest Rate Basis, such day
is also a London Business Day (as hereinafter
defined). "London Business Day" means (i) if the
Index Currency (as hereinafter defined) is other than
European Currency Units ("ECU"), any day on which
dealings in such Index Currency are transacted in the
London interbank market or (ii) if the Index Currency
is ECU, any day that does not appear as an ECU non-settlement
day on the display designated as "ISDE" on
the Reuters Monitor Money Rates Service (or a day so
designated by the ECU Banking Association) or, if ECU
non-settlement days do not appear on the page (and
are not so designated), is a day on which payments in
ECU can be settled in the international banking
market.
"Calculation Agent" shall mean, if this Note
bears interest at a floating rate, an entity selected
by the Company that will determine the interest rate
in effect for each Interest Reset Period of this Note
subsequent to the initial Interest Reset Date.
"Calculation Date" shall have the meaning set
forth under "FLOATING INTEREST RATES" below.
"Callholder" shall mean the remarketing agent
granted the option under a REPS Remarketing Agreement
to purchase this Note in the REPS Mode and
subsequently remarket the repurchased Note at a Reps
Coupon Reset Rate.
"CD Rate" shall have the meaning set forth under
"FLOATING INTEREST RATES" below.
"CMT Rate" shall have the meaning set forth
under "FLOATING INTEREST RATES" below.
"Commercial Paper Term Mode" shall mean the
Interest Rate Mode in which the interest rate on this
Note is reset on a periodic basis that shall not be
less than one calendar day nor more than 364
consecutive calendar days and interest is paid as
provided for such Interest Rate Mode as set forth
herein.
"Commercial Paper Term Period" shall mean the
Interest Rate Period for this Note in the Commercial
Paper Term Mode that is a period of not less than one
nor more than 364 consecutive calendar days, as
determined by the Company (as described below under
"CONVERSION") or, if not so determined, by the
Remarketing Agent for this Note (in its best judgment
in order to obtain the lowest interest cost for such
Note). Each Commercial Paper Term Period will
commence on the Interest Rate Adjustment Date
therefor and end on the day preceding the date
specified by such Remarketing Agent as the first day
of the next Interest Rate Period for this Note. The
interest rate for any Commercial Paper Term Period
relating to this Note will be determined not later
than 11:50 a.m., New York City time, on the Interest
Rate Adjustment Date for this Note, which is the
first day of each Interest Period for this Note.
"Comparable Treasury Issues" shall mean the
United States Treasury security or securities
selected by the Callholder as having an actual or
interpolated maturity or maturities comparable or
applicable to the remaining term to the next
succeeding Interest Rate Adjustment Date of this Note
when purchased by such Callholder.
"Comparable Treasury Price" shall mean, with
respect to a REPS Remarketing Date, (a) the offer
prices for the Comparable Treasury Issues (expressed
in each case as a percentage of its principal amount)
at 11:00 a.m. on the Determination Date, as set forth
on Telerate Page 500 (or such other page as may
replace Telerate Page 500) or (b) if such page (or
any successor page) is not displayed or does not
contain such offer prices on such Determination Date,
(i) the average of the Reference Treasury Dealer
Quotations for such REPS Remarketing Date, after
excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or (ii) if the applicable
Callholder obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations. "Telerate Page
500" shall mean the display designated as "Telerate
Page 500" on Dow Jones Markets (or such other page as
may replace Telerate Page 500 on such service) or
such other service displaying the offer prices
specified in (a) above as may replace Dow Jones
Markets.
"Composite Quotations" shall mean the
statistical release entitled "Composite 3:30 P.M.
Quotations for United States Government Securities"
published by the Federal Reserve Bank of New York or
any successor publication.
"Depositary" shall mean The Depository Trust
Company or any successor depositary.
"Designated CMT Telerate Page" shall mean the
display on the Dow Jones Markets (or any successor
service) on the page specified in the applicable
Floating Interest Rate Notice (or any other page as
may replace such page on such service for the purpose
of displaying Treasury Constant Maturities as
reported in H.15(519)) for the purpose of displaying
Treasury Constant Maturities as reported in
H.15(519). If no such page is specified in the
applicable Floating Interest Rate Notice, the page
shall be 7052 for the most recent week.
"Designated CMT Maturity Index" shall mean the
original period to maturity of the United States
Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or
30 years) specified in the applicable Floating
Interest Rate Notice with respect to which the CMT
Rate will be calculated. If no such maturity is
specified in the applicable Floating Interest Rate
Notice, the Designated CMT Maturity Index shall be 2
years.
"Designated LIBOR Page" shall mean (a) if "LIBOR
Reuters" is specified in the applicable Floating
Interest Rate Notice, the display on the Reuters
Monitor Money Rates Service (or any successor
service) on the page specified in such Floating
Interest Rate Notice (or any other page as may
replace such page on such service) for the purpose of
displaying the London interbank rates of major banks
for the Index Currency, or (b) if "LIBOR Telerate" is
specified in the applicable Floating Interest Rate
Notice or neither "LIBOR Reuters" nor "LIBOR
Telerate" is specified in the applicable Floating
Interest Rate Notice as the method for calculating
LIBOR, the display on the Dow Jones Markets (or any
successor service) on the page specified in such
Floating Interest Rate Notice (or any other page as
may replace such page on such service) for the
purpose of displaying the London interbank rates of
major banks for the Index Currency.
"Determination Date" shall mean the third
Business Day immediately preceding the applicable
REPS Remarketing Date.
"Dollar Price" shall mean the present value
determined by the Callholder, as of the applicable
REPS Remarketing Date, of the Remaining Scheduled
Payments discounted to such REPS Remarketing Date, on
a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months), at the Treasury
Rate.
"DTC Participant" shall mean an account
maintained by an institution with the Depositary
through which securities are held by such institution
and accounted for by a book-entry registration and
transfer system.
"Federal Funds Rate" shall have the meaning set
forth under "FLOATING INTEREST RATES" below.
"Floating Interest Rate Notice" shall mean the
notice described under "FLOATING INTEREST RATES"
below, which is to be provided by the Company to the
Trustee and the Remarketing Agent in the event the
Company elects to apply a floating interest rate to
this Note.
"Floating Rate Maximum Interest Rate" and
"Floating Rate Minimum Interest Rate" have the
respective meanings specified under "FLOATING
INTEREST RATES" below.
"H.15 (519)" shall mean "Statistical Release
H.15(519), Selected Interest Rates" published by the
Board of Governors of the Federal Reserve System or
any successor publication.
"Index Currency" shall mean the currency or
composite currency specified in the applicable
Floating Interest Rate Notice as to which LIBOR will
be calculated. If no such currency or composite
currency is specified in the applicable Floating
Interest Rate Notice, the Index Currency will be
United States dollars.
"Index Maturity" shall mean the period to
maturity of the instrument or obligation with respect
to which the related Interest Rate Basis or Bases
will be calculated.
"Initial Interest Rate" shall mean the annual
rate of interest applicable to this Note during the
Initial Interest Rate Period as set forth on Annex A
hereto.
"Initial Interest Rate Period" shall mean the
period from the Original Issuance Date to, but
excluding, the Initial REPS Remarketing Date.
"Initial Callholder" means the Callholder with
the option to purchase this Note on the Initial REPS
Remarketing Date, the identity of which Initial
Callholder is set forth in Annex A hereto.
"Initial REPS Remarketing Date" shall mean the
date designated by the Initial Callholder, after
consultation with the Company, upon which the Initial
Callholder may, if it has so elected, remarket this
Note at the Reps Coupon Reset Rate, which date is set
forth in Annex A hereto.
"Interest Determination Date" shall have the
meaning specified under "FLOATING INTEREST RATES"
below.
"Interest Payment Date" shall mean the date on
which interest on this Note is paid, which date(s)
shall be set forth in Annex A hereto.
"Interest Rate Adjustment Date" shall mean (i)
for a particular Interest Rate Period in any Interest
Rate Mode, each date, which shall be a Business Day,
on which interest and, in the case of a floating
interest rate, the Spread (if any) and the Spread
Multiplier (if any) on this Note subject thereto
commences to accrue at the rate determined and
announced by the applicable Remarketing Agent for
such Interest Rate Period, and (ii) during the
Initial Interest Rate Period, the Original Issue
Date.
"Interest Rate Basis" shall mean the interest
rate or interest rate formula to be referenced in
determining a floating interest rate, as described
under "FLOATING INTEREST RATES" below.
"Interest Rate Mode" shall mean the mode in
which the interest rate on a Note is being
determined, i.e., the Commercial Paper Term Mode, the
Long Term Rate Mode or the REPS Mode.
"Interest Rate Period" shall mean (a) if this
Note is in the Commercial Paper Mode or Long Term
Rate Mode, the period of time commencing on the
Interest Rate Adjustment Date and extending either
(i) to, but not including, the immediately succeeding
Interest Rate Adjustment Date or (ii), if there is no
succeeding Interest Rate Adjustment date, to, but
excluding, the Stated Maturity, and during which this
Note bears interest at a particular fixed interest
rate or floating interest rate; and (b) if this Note
is in a REPS Mode, the REPS Rate Period.
"Interest Reset Date" and "Interest Reset
Period" have the respective meanings specified under
"FLOATING INTEREST RATES" below.
"LIBOR" shall have the meaning specified under
"FLOATING INTEREST RATES" below.
"Long Term Rate Mode" shall mean the Interest
Rate Mode in which the interest rate on this Note is
reset in a Long Term Rate Period and interest is paid
as provided for such Interest Rate Mode as set forth
herein.
"Long Term Rate Period" shall mean any period of
more than 364 days and not exceeding the remaining
term to the Stated Maturity of this Note.
"Notification Date" shall mean a Business Day
not later than five Business Days prior to the
applicable REPS Remarketing Date.
"Optional Redemption" shall mean the redemption
of this Note prior to its maturity at the option of
the Company as described herein.
"Optional Redemption Price" shall mean, at any
given time, the greater of either (i) 100% of the
principal amount of this Note or (ii) the Dollar
Price plus in either case accrued and unpaid interest
from the REPS Remarketing Date on the principal
amount being redeemed to the date of redemption.
"Original Issue Date" shall have the meaning set
forth on the face hereof.
"Prime Rate" shall have the meaning specified
under "FLOATING INTEREST RATES" below.
"Principal Financial Center" shall mean the
capital city of the country issuing the Index
Currency, except that with respect to United Stated
dollars, Australian dollars, Deutsche marks, Dutch
guilders, Italian lire, Swiss francs and ECUs, the
Principal Financial Center shall be the City of New
York, Sydney, Frankfurt, Amsterdam, Milan, Zurich and
Luxembourg, respectively.
"Reference Corporate Dealers" shall mean such
Reference Corporate Dealers as shall be appointed by
the Callholder after consultation with the Company
and each to be set forth in Annex A hereto.
"Reference Treasury Dealers" shall mean such
Reference Treasury Dealers as shall be appointed by
the Callholder after consultation with the Company
and each to be set forth in Annex A hereto.
"Reference Treasury Dealer Quotation" shall
mean, with respect to each Reference Treasury Dealer
and the REPS Remarketing Date, the offer prices for
the Comparable Treasury Issues (expressed in each
case as a percentage of its principal amount) quoted
in writing to the Callholder by such Reference
Treasury Dealer by 3:30 p.m., New York City time, on
the Determination Date.
"Remaining Scheduled Payments" shall mean the
remaining scheduled payments of the principal thereof
and interest thereon, calculated at the Base Rate
only, that would be due after the REPS Remarketing
Date to and including the next succeeding Interest
Rate Adjustment Date.
"Remarketing Agent" shall mean such agent or
agents, including any standby remarketing agent (each
a "Standby Remarketing Agent"), as the Company may
appoint from time to time for the purpose of
remarketing of this Note, as set forth in the
remarketing agreement that the Company shall enter
into prior to the remarketing of such Notes.
"Reps Coupon Reset Rate" shall mean the rate
equal to the Base Rate established by a Callholder,
after consultation with the Company, at or prior to
the commencement of the applicable REPS Mode, plus
the Applicable Spread, which will be based on the
Dollar Price.
"REPS Mode" shall mean the Interest Rate Mode in
which this Note shall bear interest and be subject to
remarketing as "REset Put Securities."
"REPS Period" shall mean, if this Note is
remarketed by the Initial Callholder on the Initial
REPS Remarketing Date, that portion of the REPS Rate
Period commencing on the Initial REPS Remarketing
Date up to, but excluding, the next succeeding
Interest Rate Adjustment Date. The REPS Period is
set forth in Annex A hereto.
"REPS Rate Period" shall mean an Interest Rate
Period for this Note if in a REPS Mode established by
the Company as a period of more than 364 days and
less than the remaining term to the Stated Maturity
of such Note; provided, however, that such Interest
Rate Period must end on the day prior to an Interest
Payment Date for such Note. The REPS Rate Period
shall consist of the period to and excluding the REPS
Remarketing Date and the period from and including
the REPS Remarketing Date to, but excluding, the next
succeeding Interest Rate Adjustment Date.
"REPS Remarketing Agreement" shall mean the
agreement by and between the Company and the
Callholder dated as of the date commencing the
applicable REPS Rate Period which sets forth the
rights and obligations of the Company and the
Callholder with respect to the remarketing of Notes
in the REPS Mode.
"REPS Remarketing Date" shall mean the date
designated by the Callholder, after consultation with
the Company, upon which the Callholder may elect to
remarket this Note at the Reps Coupon Reset Rate.
"Reuters Screen U.S. PRIME 1 Page" shall mean
the display designated as page "U.S. PRIME 1" on the
Reuters Monitor Money Rates Service (or any successor
service) on the U.S. PRIME 1 Page (or such other page
as may replace the U.S. PRIME 1 Page on such service)
for the purpose of displaying prime rates or base
lending rates of major United States banks.
"Special Interest Rate" shall have the meaning
set forth below under subsection (d) of "INTEREST
RATE."
"Special Mandatory Purchase" shall mean the
obligation of the Company to purchase Notes not
successfully remarketed by the Remarketing Agent and
the applicable Standby Remarketing Agent(s) by 3:00
p.m., New York City time, on any Interest Rate
Adjustment Date.
"Spread" shall mean the number of basis points
to be added to or subtracted from the related
Interest Rate Basis or Bases applicable to an
Interest Rate Period for such Note.
"Spread Multiplier" shall mean the percentage of
the related Interest Rate Basis or Bases applicable
to an Interest Rate Period by which such Interest
Rate Basis or Bases will be multiplied to determine
the applicable interest rate from time to time for an
Interest Rate Period.
"Stated Maturity" shall mean September 15, 2038.
"Treasury Bills" shall have the meaning
specified under "FLOATING INTEREST RATES" below.
"Treasury Rate" shall have the meaning specified
under "FLOATING INTEREST RATES" below.
"Weekly Rate Period" is a Commercial Paper Term
Period and will be a period of seven days commencing
on any Interest Rate Adjustment Date and ending on
the day preceding the first day of the next Interest
Rate Period for such Note.
INTEREST RATE
(a) Initial Interest Rate. This Note will
bear interest at the rate per annum (assuming a 360-day
year consisting of twelve 30-day months) during
the Initial Interest Rate Period identified as the
Initial Interest Rate in Annex A hereto.
(b) Subsequent Interest Rates. (i) If the
Initial Callholder elects to purchase this Note as
described herein, this Note will be subject to
mandatory tender to the Initial Callholder on the
Initial REPS Remarketing Date, except in the limited
circumstances described herein, and will, for the
REPS Period bear interest at the Reps Coupon Reset
Rate as defined herein and which will be set forth in
Annex A hereto.
(ii) If the Initial Callholder does not
purchase this Note on the Initial REPS Remarketing
Date, this Note automatically will be subject to
mandatory tender at 100% of the principal amount
thereof for redemption on such date by the Company or
for remarketing on such date by a Remarketing Agent
in a Commercial Paper Term Mode, a Long Term Rate
Mode or a new REPS Mode and will bear interest at a
rate and for a period set forth in Annex A hereto.
(iii) The interest rate and, in the
case of a floating interest rate, the Spread (if any)
and the Spread Multiplier (if any) for this Note will
be announced by the applicable Remarketing Agent on
or prior to the Interest Rate Adjustment Date for the
next succeeding Interest Rate Period, and will be the
minimum interest rate per annum and, in the case of a
floating interest rate, the Spread (if any) and the
Spread Multiplier (if any) necessary, during the
Interest Rate Period commencing on such Interest Rate
Adjustment Date, in the judgement of the Remarketing
Agent, to produce a par bid in the secondary market
for this Note on the date the interest rate is
established. Such rate will be effective for the
next succeeding Interest Rate Period for this Note
commencing on such Interest Rate Adjustment Date.
(c) Floating Interest Rates. The provisions
governing floating interest rates for this Note
appear below under "FLOATING INTEREST RATES."
(d) Failure of Remarketing Agent or Agents to
Announce Interest. In the event that (i) the
applicable Remarketing Agent has been removed or has
resigned and no successor has been appointed, or (ii)
such Remarketing Agent has failed to announce the
appropriate interest rate, Spread (if any) or Spread
Multiplier (if any), as the case may be, on the
Interest Rate Adjustment Date of this Note for
whatever reason, or (iii) the appropriate interest
rate, Spread (if any), or Spread Multiplier (if any),
as the case may be, or Interest Rate Period cannot be
determined for this Note for whatever reason, then
the next succeeding Interest Rate Period for this
Note will be automatically converted to a Weekly Rate
Period, and the rate of interest thereon will be
equal to the Federal Funds Rate (the "Special
Interest Rate").
(e) Notice of Interest Rate; Binding Effect.
After any Interest Rate Adjustment Date of this Note,
the Remarketing Agent or the Callholder, as the case
may be, will notify the Company and the Trustee of
the interest rate, Spread (if any) and the Spread
Multiplier (if any). Immediately upon receipt of
such notice, the Trustee will transmit such
information to the Depositary in accordance with the
Depositary's procedures as in effect from time to
time and note such rate in Annex A. The Trustee
shall confirm to the Depositary the interest rate for
the following Interest Rate Period in accordance with
the Depositary's procedures as in effect from time to
time. Any Beneficial Owner may contact the Trustee
or the Remarketing Agent in order to be advised of
the interest rate applicable to such Beneficial
Owner's Remarketed Notes. No notice of the
applicable interest rate will be sent to Beneficial
Owners.
The interest rate and other terms announced by
the Remarketing Agent, absent manifest error, will be
binding and conclusive upon the Beneficial Owners,
the Company and the Trustee.
(f) Conversion. This Note may be converted
at the option of the Company to the Commercial Paper
Term Mode, Long Term Rate Mode or REPS Mode on any
Interest Rate Adjustment Date for this Note in
accordance with the procedures set forth in the
Indenture, and will be subject to mandatory tender by
the Beneficial Owner thereof as described herein on
such Interest Rate Adjustment Date. The Beneficial
Owner of this Note will be deemed to have
automatically tendered for purchase such Note on each
Interest Rate Adjustment Date upon which such
conversion occurs and will not be entitled to further
accrual of interest on this Note after such date.
TENDER
This Note will be automatically tendered for
purchase, or deemed tendered for purchase, on each
Interest Rate Adjustment Date relating hereto. Notes
will be purchased on such Interest Rate Adjustment
Date in accordance with the procedures set forth in
"REMARKETING AND SETTLEMENT" or, as the case may be,
"REPS MODE" below.
REMARKETING AND SETTLEMENT
Interest Rate Adjustment Date; Determination of
Interest Rate. By 11:00 a.m., New York City time, on
the Interest Rate Adjustment Date for this Note, the
applicable Remarketing Agent will determine the
interest rate for such Note being remarketed to the
nearest one hundred thousandth (0.00001) of one
percent per annum for the next Interest Rate Period
in the case of a fixed interest rate, and the Spread
(if any) and Spread Multiplier (if any) in the case
of a floating interest rate; provided, that between
11:00 a.m., New York City time, and 11:50 a.m., New
York City time, the Remarketing Agent and the Standby
Remarketing Agent, if any, will use their reasonable
efforts to determine the interest rate for this Note
if it is not successfully remarketed as of the
applicable deadline specified in this paragraph. In
determining the applicable interest rate for this
Note and other terms, such Remarketing Agent will,
after taking into account market conditions as
reflected in the prevailing yields on fixed and
variable rate taxable debt securities, (i) consider
the principal amount of all Notes tendered or to be
tendered on such date and the principal amount of
such Notes prospective purchasers are or may be
willing to purchase and (ii) contact, by telephone or
otherwise, prospective purchasers and ascertain the
interest rates therefor at which they would be
willing to hold or purchase such Notes.
Notification of Results; Settlement. By 12:30
p.m., New York City time, on the Interest Rate
Adjustment Date of this Note, the applicable
Remarketing Agent will notify the Company and the
Trustee in writing (which may include facsimile or
other electronic transmission), of (i) the interest
rate or, in the case of a floating interest rate, the
initial interest rate, the Spread and Spread
Multiplier and the initial Interest Reset Date,
applicable to this Note for the next Interest Rate
Period, (ii) the Interest Rate Adjustment Date, (iii)
the Interest Payment Dates if this Notes is in the
Commercial Paper Term Mode (if other than the
Interest Rate Adjustment Date), the Long Term Rate
Mode or the REPS Mode, (iv) the optional redemption
terms, if any, and early remarketing terms, if any,
in the case of a remarketing into a Long Term Rate
Period, (v) the aggregate principal amount of all
tendered Notes and (vi) the aggregate principal
amount of such tendered Notes that such Remarketing
Agent was able to remarket, at a price equal to 100%
of the principal amount thereof plus accrued
interest, if any. Immediately after receiving such
notice and, in any case, not later than 1:30 p.m.,
New York City time, the Trustee will transmit such
information and any other settlement information
required by the Depositary to the Depositary in
accordance with the Depositary's procedures as in
effect from time to time.
By telephone at approximately 1:00 p.m., New
York City time, on such Interest Rate Adjustment
Date, the applicable Remarketing Agent will advise
each purchaser of this Note (or the DTC Participant
of each such purchaser who it is expected in turn
will advise such purchaser) of the principal amount
of such Notes that such purchaser is to purchase.
Each purchaser of this Note in a remarketing
will be required to give instructions to its DTC
Participant to pay the purchase price therefor in
same day funds to the applicable Remarketing Agent
against delivery of the principal amount of this Note
by book-entry through the Depositary by 3:00 p.m.,
New York City time, on the Interest Rate Adjustment
Date.
When tendered, or deemed tendered, this Note
will be automatically delivered to the account of the
Trustee (or such other account meeting the
requirements of the Depositary's procedures as in
effect from time to time), by book-entry through the
Depositary against payment of the purchase price or
redemption price therefor, on the Interest Rate
Adjustment Date relating thereto.
The applicable Remarketing Agent will make, or
cause the Trustee to make, payment to the DTC
participant of each tendering Beneficial Owner of
Notes subject to a remarketing, by book-entry through
the Depositary by the close of business on the
Interest Rate Adjustment Date against delivery
through the Depositary of such Beneficial Owner's
tendered Notes, of the purchase price for tendered
Notes that have been sold in the remarketing. If
this Note was purchased pursuant to a Special
Mandatory Purchase, subject to receipt of funds from
the Company or, if applicable, an institution
providing credit support, as the case may be, the
Trustee will make such payment of the purchase price
of this Notes plus accrued interest, if any, to such
date.
The transactions described above for a
remarketing of this Note will be executed on the
Interest Rate Adjustment Date for this Note through
the Depositary in accordance with the procedures of
the Depositary, and the accounts of the respective
DTC Participants will be debited and credited and
such Notes delivered by book-entry as necessary to
effect the purchases and sales thereof, in each case
as determined in the related remarketing.
Except as otherwise set forth below, this Note
when tendered in a remarketing will be purchased
solely out of the proceeds received from purchasers
of this Note in such remarketing, and none of the
Trustee, the applicable Remarketing Agent, any
Standby Remarketing Agent or the Company will be
obligated to provide funds to make payment upon any
Beneficial Owner's tender in a remarketing.
Although tendered Notes will be subject to
purchase by a Remarketing Agent in a remarketing,
such Remarketing Agent and any Standby Remarketing
Agent will not be obligated to purchase any such
Notes.
The settlement and remarketing procedures
described above, including provisions for payment by
purchasers of tendered Notes or for payment to
selling Beneficial Owners of tendered Notes, may be
modified to the extent required by the Depositary.
In addition, each Remarketing Agent may, in
accordance with the terms of the Indenture, modify
the settlement and remarketing procedures set forth
above in order to facilitate the settlement and
remarketing process.
As long as the Depositary's nominee holds the
certificates representing this Note in the book-entry
system of the Depositary, no certificates for this
Note will be delivered by any selling Beneficial
Owner to reflect any transfer of Notes effected in
any remarketing.
Failed Remarketing. If on any Interest Rate
Adjustment Date for this Note the applicable
Remarketing Agent and applicable Standby Remarketing
Agent(s) have not successfully remarketed this Note,
it will be subject to Special Mandatory Purchase by
the Company, as described under "REDEMPTION AND
ACCELERATION Special Mandatory Purchase" below.
TRANSFER OR EXCHANGE
As provided in the Indenture and subject to
certain limitations therein set forth, the transfer
of this Note is registerable in the Security
Register, upon surrender of this Note for
registration of transfer at the office or agency of
the Company in any place where the principal of (and
premium, if any) and interest on this Note are
payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory
to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new
Notes of this series and of like tenor, of authorized
denominations and for the same aggregate principal
amount, will be issued to the designated transferee
or transferees.
The Notes are issuable only in registered form
without coupons and, except for such Notes issued in
book-entry form, only in denominations of $100,000
and any integral multiple of $1,000. As provided in
the Indenture and subject to certain limitations
therein set forth, this Note is exchangeable for a
like aggregate principal amount of Notes of this
series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any
tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Note for
registration of transfer, the Company or the Trustee
and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as
the owner hereof for all purposes, whether or not
this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by
notice to the contrary.
REDEMPTION AND ACCELERATION
Special Mandatory Purchase. Subject to certain
exceptions, if on any Interest Rate Adjustment Date
for this Note, the applicable Remarketing Agent and
applicable Standby Remarketing Agent(s) have not
remarketed all the Notes, Notes that have not been
remarketed are subject to Special Mandatory Purchase
by the Company. The Company shall be obligated to
pay all accrued and unpaid interest, if any, on
unremarketed Notes to such Interest Rate Adjustment
Date. Payment of the principal amount of
unremarketed Notes by the Company, and payment of
accrued and unpaid interest, if any, by the Company,
will be made by deposit of same-day funds with the
Trustee (or such other account meeting the
requirements of the Depositary's procedures as in
effect from time to time) irrevocably in trust for
the benefit of the Beneficial Owners of Notes subject
to Special Mandatory Purchase by 3:00 p.m., New York
City time, on such Interest Rate Adjustment Date.
Failure by the Company to purchase this Note
pursuant to a Special Mandatory Purchase will
constitute an Event of Default under the Indenture in
which event the date of such failure shall constitute
a date of Maturity for this Note and the principal
thereof may be declared due and payable in the manner
and with the effect provided in the Indenture.
Following such failure to pay pursuant to a Special
Mandatory Purchase, this Note will bear interest at
the Special Interest Rate as provided above "INTEREST
RATE."
Optional Redemption on any Interest Rate
Adjustment Date. This Note is subject to redemption
at the option of the Company in whole or in part on
any Interest Rate Adjustment Date relating thereto
without notice to the holders thereof at a redemption
price equal to 100% of the principal amount set forth
in Annex A hereto.
Redemption While This Note is in the Long Term
Rate Mode. If this Note is in the Long Term Rate
Mode, it is subject to redemption at the option of
the Company at the times and upon the terms specified
at the time of conversion to or within such Long Term
Rate Mode as set forth in Annex A hereto.
Notice of redemption shall be given by mail to
the registered owner of this Note, not less than 30
nor more than 60 days prior to the Redemption Date,
all as provided in the Indenture. The Company shall
not be required to (a) issue, register the transfer
of or exchange Notes of this series during a period
beginning at the opening of business 15 days before
the day of the mailing of the relevant notice of
redemption and ending at the close of business on the
day of such mailing or (b) register the transfer of
or exchange any Notes selected for redemption, in
whole or in part, except the unredeemed portion of
any Note being redeemed in part.
In the event of redemption of this Note in part
only, a new Note or Notes of this series, of like
tenor, for the unredeemed portion hereof will be
issued in the name of the registered owner hereof
upon the cancellation hereof.
Allocation. Except in the case of a Special
Mandatory Purchase, if this Note is to be redeemed in
part, the Depositary, after receiving notice of
redemption specifying the aggregate principal amount
of this Note to be so redeemed, will determine by lot
(or otherwise in accordance with the procedures of
the Depositary) the principal amount this Note to be
redeemed from the account of each DTC Participant.
After making its determination as described above,
the Depositary will give notice of such determination
to each DTC Participant from whose account this Notes
is to be redeemed. Each such DTC Participant, upon
receipt of such notice will in turn determine the
principal amount of this Note to be redeemed from the
accounts of the Beneficial Owners of this Note for
which it serves as DTC Participant, and give notice
of such determination to the Remarketing Agent.
Acceleration. If any Event of Default with
respect to the Notes shall occur and be continuing,
the principal of the Notes may be declared due and
payable in the manner and with the effect provided in
the Indenture.
REPS MODE
Notwithstanding anything herein to the contrary,
the provisions of this section shall apply to this
Note when it is in a REPS Mode and shall supersede
any conflicting provisions of general applicability
contained elsewhere herein, during the period from,
and including, the commencement of a REPS Rate Period
to, but excluding, the next succeeding Interest Rate
Adjustment Date (or, if the Callholder does not elect
to purchase this Note on the applicable REPS
Remarketing Date designated for such REPS Mode or if
after electing to so purchase this Note the
Callholder fails to so purchase this Note for any
reason, to the REPS Remarketing Date). During the
period in which this Note is in a REPS Mode, this
Note shall bear interest and be subject to
remarketing by the applicable Callholder designated
by the Company as described herein and identified in
Annex A hereto.
With respect to this Note in the REPS Rate
Period commencing on the Original Issue Date,
references herein to (i) the Callholder and REPS
Remarketing Date shall mean the Initial Callholder
and the Initial REPS Remarketing Date and (ii) the
Interest Rate Adjustment Date on which the REPS Rate
Period commences shall mean the Original Issue Date.
(a) Interest to REPS Remarketing Date. The
Interest Rate Period for this Note in the REPS Mode
will be established by the Company (as described
under "INTEREST RATE" above) as a period of more than
364 days and not exceeding the remaining term to the
Stated Maturity of this Note; provided, however, that
such Interest Rate Period must end on the day prior
to an Interest Payment Date for this Note. A REPS
Rate Period shall consist of the period to and
excluding the REPS Remarketing Date and the period
from and including the REPS Remarketing Date to but
excluding the next succeeding Interest Rate
Adjustment Date (set forth in Annex A hereto), or,
if the Remarketing Agent does not purchase the Notes
thereon, the Interest Rate Adjustment Date. The
interest rate and, in the case of a floating interest
rate, the Spread (if any), and the Spread Multiplier
(if any), to the REPS Remarketing Date for this Note
if it is in the REPS Mode will be determined not
later than 11:50 a.m., New York City time, on the
Interest Rate Adjustment Date of this Note, which for
the REPS Mode is the first day of each Interest Rate
Period for this Note. Such interest rate will be
the minimum rate of interest and, in the case of a
floating interest rate, Spread (if any) and Spread
Multiplier (if any) necessary in the judgment of such
Callholder to produce a par bid in the secondary
market for this Note on the date the interest is
established. The designated REPS Remarketing Date
shall be an Interest Payment Date within such
Interest Rate Period.
(b) Mandatory Tender. Provided that the
Callholder gives notice to the Company and the
Trustee on or before the Notification Date of its
intention to purchase the Notes for remarketing, this
Note will be automatically tendered to such
Callholder for purchase on the applicable REPS
Remarketing Date, except in the circumstances
described under "Conversion or Redemption" below.
The purchase price for the tendered Notes to be paid
by the Callholder will be equal to 100% of the
aggregate principal amount thereof. When this Note
is tendered to the Callholder for remarketing, the
Callholder may remarket the Note for its own account
at varying prices to be determined by the Callholder
at the time of each sale. If the Callholder elects
to remarket the Note, the obligation of the
Callholder to purchase the Note on the REPS
Remarketing Date is subject to certain condition
including no material adverse change in the condition
of the Company and its subsidiaries, considered as
one enterprise, shall have occurred and that no Event
of Default (as defined in the Indenture), or any
event which, with the giving of notice or passage of
time, or both, would constitute an Event of Default,
with respect to this Note shall have occurred and be
continuing.
(c) Remarketing; Reps Coupon Reset Rate. The
Reps Coupon Reset Rate will be determined by the
Callholder by 3:30 p.m., New York City time, on the
Determination Date to the nearest one hundred-thousandth
(0.00001) of one percent per annum, and
will be equal to the sum of the Base Rate and the
Applicable Spread, which will be based on the Dollar
Price of the Notes as of the REPS Remarketing Date.
(d) Notification of Results; Settlement.
Provided the Callholder has previously notified the
Company and the Trustee on the Notification Date of
its intention to purchase all tendered Notes on the
REPS Remarketing Date, the Callholder will notify the
Company, the Trustee and the Depositary by telephone,
confirmed in writing, by 4:00 p.m., New York City
time, on the Determination Date, of the Reps Coupon
Reset Rate.
If the Callholder does not elect to purchase
this Note for remarketing on the REPS Remarketing
Date or if the Callholder gives notice of its
election to remarket this Note but for any reason
does not purchase all tendered Notes on the REPS
Remarketing Date, then this Note will be subject to
remarketing on such date by a Remarketing Agent
appointed by the Company in the Commercial Paper Term
Mode or the Long Term Rate Mode or a new REPS Mode
established by the Company; provided that, in such
case, the notice period required for conversion shall
be the lesser of ten (10) days and the period
commencing the date that the Callholder notifies the
Company that it will not purchase the Notes for
remarketing on the REPS Remarketing Date or fails to
so purchase, as the case may be.
The tendered Note will be automatically
delivered to the account of the Trustee, by book-entry
through the Depositary pending payment of the
purchase price therefor, on the applicable REPS
Remarketing Date.
The Callholder will make or cause the Trustee to
make payment to the Participant of each tendering
Beneficial Owner of Notes, by book-entry through the
Depositary by the close of business on the REPS
Remarketing Date against delivery through the
Depositary by the close of business on the REPS
Remarketing Date of such Beneficial Owner's tendered
Notes.
The transactions described above will be
executed on the REPS Remarketing Date through the
Depositary in accordance with the procedures of the
Depositary, and the accounts of the respective DTC
Participants will be debited and credited and the
Notes delivered by book-entry as necessary to effect
the purchases and sales thereof.
Transactions involving the sale and purchase of
the Notes remarketed by a Callholder on or after a
REPS Remarketing Date will settle in immediately
available funds through the Depositary's Same-Day
Funds Settlement System.
The tender and settlement procedures described
above, including provisions for payment by purchasers
of Notes in the remarketing or for payment to selling
Beneficial Owners of tendered Notes, may be modified,
notwithstanding any contrary terms of the Indenture,
to the extent required by the Depositary or, if the
book-entry system is no longer available this Note at
the time of the remarketing, to the extent required
to facilitate the tendering and remarketing of this
Note in certificated form. In addition, the
Callholder may, notwithstanding any contrary terms of
the Indenture, modify the settlement procedures set
forth above in order to facilitate the settlement
process.
As long as the Depositary's nominee holds the
certificates representing any Notes in the book-entry
system of the Depositary, no certificates for this
Note will be delivered by any selling Beneficial
Owner to reflect any transfer of such Notes effected
in the remarketing. In addition, under the terms of
this Note, the Company has agreed that,
notwithstanding any provision to the contrary set
forth in the Indenture, (a) it will use reasonable
commercial efforts to maintain this Note in book-entry
form with the Depositary or any successor
thereto and to appoint a successor depositary to the
extent necessary to maintain this Note in book-entry
form and (b) it will waive any discretionary right it
otherwise has under the Indenture to cause this Note
to be issued in certificated form.
(e) Conversion or Redemption. If the
Callholder elects to remarket the Notes on the REPS
Remarketing Date, this Note will be subject to
mandatory tender to the Callholder for remarketing on
such date, subject to the Company's right to convert
the Note to a new Interest Rate Mode or to redeem the
Note from the Callholder, in each case as described
in the next sentence. The Company will notify the
Callholder and the Trustee not later than the
Business Day immediately preceding the Determination
Date if the Company irrevocably elects to exercise
its right to either convert the Note to a new
Interest Rate Mode or to redeem the Note from the
Callholder at the Optional Redemption Price, in each
case, on the applicable REPS Remarketing Date.
In the event that the Company irrevocably elects
to convert the Note to a new Interest Rate Mode, then
as of the REPS Remarketing Date, this Note will be
subject to remarketing on such date by a Remarketing
Agent appointed by the Company in a new REPS Mode, a
Long Term Rate Mode or a Commercial Paper Term Mode
established by the Company in accordance with the
procedures set forth herein; provided that, in such
case, the notice required for conversion shall be
given no later than the Initial Determination Date.
In such case, the Company shall pay to the Initial
Callholder the excess of the Dollar Price of the
Notes over 100% of the principal amount of the Notes
in same-day funds by wire transfer to an account
designated by the Initial Callholder.
In the event that the Company irrevocably elects
to redeem this Note from the Callholder, it shall pay
such Callholder the Optional Redemption Price in
same-day funds by wire transfer to an account
designated by the Callholder on the REPS Remarketing
Date.
If notice has been given as provided in the
Indenture and funds for the redemption of this Note
called for redemption shall have been made available
on the redemption date referred to in such notice,
this Note shall cease to bear interest on the date
fixed for such redemption specified in such notice
and the only right of the Callholder from and after
the redemption date shall be to receive payment of
the Optional Redemption Price upon surrender of this
Note in accordance with such notice.
FLOATING INTEREST RATES
While this Note bears interest in the Long Term
Rate Mode or the REPS Mode (with respect to the
period from, and including, the Interest Rate
Adjustment Date commencing such period to, but
excluding, the REPS Remarketing Date), the Company
may elect a floating interest rate by providing a
notice, which will be submitted or promptly confirmed
in writing (which includes facsimile or appropriate
electronic media), received by the Trustee and the
Remarketing Agent (a "Floating Interest Rate Notice")
for such Note not less than ten (10) days prior to
the Interest Rate Adjustment Date for such Long Term
Rate Period or REPS Rate Period. The Floating
Interest Rate Notice must identify by CUSIP number or
otherwise the portion of the Note to which it relates
and state the Interest Rate Period (or portion
thereof, in the case of the REPS Mode) therefor to
which it relates. Each Floating Interest Rate Notice
must also state the Interest Rate Basis or Bases, the
initial Interest Reset Date, the Interest Reset
Period and Interest Reset Dates, the Interest Rate
Period and Interest Payment Dates, the Index Maturity
and the Floating Rate Maximum Interest Rate and/or
Floating Rate Minimum Interest Rate, if any. If one
or more of the applicable Interest Rate Bases is
LIBOR or the CMT Rate, the Floating Interest Rate
Notice will also specify the Index Currency and
Designated LIBOR Page or the Designated CMT Maturity
Index and Designated CMT Telerate Page, respectively.
If this Note bears interest at a floating rate
in a Long Term Rate Period or REPS Rate Period, such
Note will bear interest at the rate determined by
reference to the applicable Interest Rate Basis or
Bases (a) plus or minus the Spread, if any, and/or
(b) multiplied by the Spread Multiplier, if any,
specified by the Remarketing Agent, in the case of a
Long Term Rate Period, or the Callholder, in the case
of a REPS Rate Period. Commencing on the Interest
Rate Adjustment Date for such Interest Rate Period,
the rate at which interest on such Note will be
payable will be reset as of each Interest Reset Date
during such Interest Rate Period specified in the
applicable Floating Interest Rate Notice.
The applicable floating interest rate on this
Note during any Interest Rate Period will be
determined by reference to the applicable Interest
Rate Basis or Interest Rate Bases, which may include
(i) the CD Rate, (ii) the CMT Rate, (iii) the Federal
Funds Rate, (iv) LIBOR, (v) the Prime Rate, (vi) the
Treasury Rate or (vii) such other Interest Rate Basis
or interest rate formula as may be specified in the
applicable Floating Interest Rate Notice (each, an
"Interest Rate Basis").
Unless otherwise specified in the applicable
Floating Interest Rate Notice, the interest rate with
respect to each Interest Rate Basis will be
determined in accordance with the applicable
provisions below. Except as set forth above or in
the applicable Floating Interest Rate Notice, the
interest rate in effect on each day will be (i) if
such day is an Interest Reset Date, the interest rate
determined as of the Interest Determination Date
immediately preceding such Interest Reset Date or
(ii), if such day is not an Interest Reset Date, the
interest rate determined as of the Interest
Determination Date immediately preceding the most
recent Interest Reset Date. If any Interest Reset
Date would otherwise be a day that is not a Business
Day, such Interest Reset Date will be postponed to
the next succeeding Business Day, unless LIBOR is an
applicable Interest Rate Basis and such Business Day
falls in the next succeeding calendar month, in which
case such Interest Reset Date will be the immediately
preceding Business Day. In addition, if the Treasury
Rate is an applicable Interest Rate Basis and the
Interest Determination Date would otherwise fall on
an Interest Reset Date, then such Interest Reset Date
will be postponed to the next succeeding Business
Day.
The applicable Floating Interest Rate Notice
will specify whether the rate of interest will be
reset daily, weekly, monthly, quarterly, semiannually
or annually or on such other specified basis (each,
an "Interest Reset Period") and the dates on which
such rate of interest will be reset (each, an
"Interest Reset Date"). Unless otherwise specified
in the applicable Floating Interest Rate Notice, the
Interest Reset Dates will be, in the case of a
floating interest rate which resets: (i) daily, each
Business Day; (ii) weekly, the Wednesday of each week
(unless the Treasury Rate is an applicable Interest
Rate Basis, in which case the Tuesday of each week
except as described below); (iii) monthly, the third
Wednesday of each month; (iv) quarterly, the third
Wednesday of March, June, September and December of
each year, (v) semiannually, the third Wednesday of
the two months specified in the applicable Floating
Interest Rate Notice; and (vi) annually, the third
Wednesday of the month specified in the applicable
Floating Interest Rate Notice.
The interest rate applicable to each Interest
Reset Period commencing on the related Interest Reset
Date will be the rate determined as of the applicable
Interest Determination Date. The "Interest
Determination Date" with respect to the CD Rate, the
CMT Rate, the Federal Funds Rate and the Prime Rate
will be the second Business Day immediately preceding
the applicable Interest Reset Date; and the "Interest
Determination Date" with respect to LIBOR will be the
second London Business Day immediately preceding the
applicable Interest Reset Date, unless the Index
Currency is British pounds sterling, in which case
the "Interest Determination Date" will be the
applicable Interest Reset Date. The "Interest
Determination Date" with respect to the Treasury Rate
will be the day within the week in which the
applicable Interest Reset Date falls upon which day
Treasury Bills (as defined below) are normally
auctioned (Treasury Bills are normally sold at an
auction held on Monday of each week, unless that day
is a legal holiday, in which case the auction is
normally held on the following Tuesday, except that
such auction may be held on the preceding Friday);
provided, however, that if an auction is held on the
Friday of the week preceding the applicable Interest
Reset Date, the "Interest Determination Date" will be
such preceding Friday. If the interest rate of this
Note is a floating interest rate determined with
reference to two or more Interest Rate Bases
specified in the applicable Floating Interest Rate
Notice, the "Interest Determination Date" pertaining
to this Note will be the most recent Business Day
which is at least two Business Days prior to the
applicable Interest Reset Date on which each Interest
Rate Basis is determinable. Each Interest Rate Basis
will be determined as of such date, and the
applicable interest rate will take effect on the
related Interest Reset Date.
Either or both of the following may also apply
to the floating interest rate on this Note for an
Interest Rate Period: (i) a floating rate maximum
interest rate, or ceiling, that may accrue during any
Interest Reset Period (the "Floating Rate Maximum
Interest Rate") and (ii) a floating rate minimum
interest rate, or floor, that may accrue during any
Interest Reset Period (the "Floating Rate Minimum
Interest Rate"). In addition to any Floating Rate
Maximum Interest Rate that may apply, the interest
rate on this Note will in no event be higher than the
maximum rate permitted by New York law, as the same
may be modified by United States laws of general
application.
Except as provided below or in the applicable
Floating Interest Rate Notice, interest will be
payable, in the case of floating interest rates which
reset: (i) daily, weekly or monthly, on the third
Wednesday of each month or on the third Wednesday of
March, June, September and December of each year, as
specified in the applicable Floating Interest Rate
Notice; (ii) quarterly, on the third Wednesday of
March, June, September and December of each year;
(iii) semiannually, on the third Wednesday of the two
months of each year specified in the applicable
Floating Interest Rate Notice; and (iv) annually, on
the third Wednesday of the month of each year
specified in the applicable Floating Interest Rate
Notice and, in each case, on the Business Day
immediately following the applicable Long Term Rate
Period or REPS Rate Period, as the case may be. If
any Interest Payment Date for the payment of interest
at a floating rate (other than following the end of
the applicable Long Term Rate Period or REPS Rate
Period, as the case may be) would otherwise be a day
that is not a Business Day, such Interest Payment
Date will be postponed to the next succeeding
Business Day, except that if LIBOR is an applicable
Interest Rate Basis and such Business Day falls in
the next succeeding calendar month, such Interest
Payment Date will be the immediately preceding
Business Day.
All percentages resulting from any calculation
of floating interest rates will be rounded to the
nearest one hundred thousandth of a percentage point,
with five one-millionths of a percentage point
rounded upwards (e.g., 9.876545% (or .09876545) would
be rounded to 9.87655% (or .0987655)), and all
amounts used in or resulting from such calculation
will be rounded, in the case of United States
dollars, to the nearest cent or, in the case of a
foreign currency or composite currency, to the
nearest unit (with one-half cent or unit being
rounded upwards).
Accrued floating rate interest will be
calculated by multiplying the principal amount of the
this Note by an accrued interest factor. Such accrued
interest factor will be computed by adding the
interest factor calculated for each day in the
applicable Interest Reset Period. Unless otherwise
specified in the applicable Floating Interest Rate
Notice, the interest factor for each such day will be
computed by dividing the interest rate applicable to
such day by 360, if an applicable Interest Rate Basis
is the CD Rate, the Federal Funds Rate, LIBOR or the
Prime Rate, or by the actual number of days in the
year if an applicable Interest Rate Basis is the CMT
Rate or the Treasury Rate. Unless otherwise
specified in the applicable Floating Interest Rate
Notice, if the floating interest rate is calculated
with reference to two or more Interest Rate Bases,
the interest factor will be calculated in each period
in the same manner as if only one of the applicable
Interest Rate Bases applied as specified in the
applicable Floating Interest Rate Notice.
If this Note bears interest at a floating rate,
the applicable Remarketing Dealer will determine the
interest rate in effect from the Interest Rate
Adjustment Date for this Note to the initial Interest
Reset Date. A calculation agent selected by the
Company (a "Calculation Agent") will determine the
interest rate in effect for each Interest Reset
Period thereafter. Upon request of the Beneficial
Owner of this Note, after any Interest Rate
Adjustment Date, the Calculation Agent or the
Remarketing Dealer will disclose the interest rate
and, in the case of a floating interest rate,
Interest Rate Basis or Bases, Spread (if any) and
Spread Multiplier (if any), and in each case the
other terms applicable to this Note then in effect
and, if determined, the interest rate that will
become effective as a result of a determination made
for the next succeeding Interest Reset Date with
respect to this Note. Except as described herein if
this Note is earning interest at floating rates, no
notice of the applicable interest rate, Spread (if
any) or Spread Multiplier (if any) will be sent to
the Beneficial Owner of this Note.
Unless otherwise specified in the applicable
Floating Interest Rate Notice, the "Calculation
Date," if applicable, pertaining to any Interest
Determination Date will be the earlier of (i) the
tenth calendar day after such Interest Determination
Date or, if such day is not a Business Day, the next
succeeding Business Day or (ii) the Business Day
immediately preceding the applicable Interest Payment
Date or Maturity, as the case may be.
CD Rate. If an Interest Rate Basis for this
Note is specified in the applicable Floating Interest
Rate Notice as the "CD Rate," the CD Rate shall mean,
with respect to any Interest Determination Date
relating to this Note for which the interest rate is
determined with reference to the CD Rate (a "CD Rate
Interest Determination Date"), the rate on such date
for negotiable United States dollar certificates of
deposit having the Index Maturity specified in the
applicable Floating Interest Rate Notice as published
in H.15(519) under the heading "CDs (Secondary
Market)," or, if not published by 3:00 p.m., New York
City time, on the related Calculation Date, the rate
on such CD Rate Interest Determination Date for
negotiable United States dollar certificates of
deposit of the Index Maturity specified in the
applicable Floating Interest Rate Notice as published
in Composite Quotations under the heading
"Certificates of Deposit." If such rate is not yet
published in either H.15(519) or Composite Quotations
by 3:00 p.m., New York City time, on the related
Calculation Date, then the CD Rate on such CD Rate
Interest Determination Date will be calculated by the
Calculation Agent and will be the arithmetic mean of
the secondary market offered rates as of 10:00 a.m.,
New York City time, on such CD Rate Interest
Determination Date, of three leading nonbank dealers
in negotiable United States dollar certificates of
deposit in the City of New York (which may include
the Remarketing Agent or its affiliates) selected by
the Calculation Agent, after consultation with the
Company, for negotiable United States dollars
certificates of deposit of major United States money
center banks for negotiable certificates of deposit
with a remaining maturity closest to the Index
Maturity specified in the applicable Floating
Interest Rate Notice in an amount that is
representative for a single transaction in that
market at that time; provided, however, that if the
dealers so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the CD Rate
determined as of such CD Rate Interest Determination
Date will be the CD Rate in effect on such CD Rate
Interest Determination Date.
CMT Rate. If an Interest Rate Basis for this
Note is specified in the applicable Floating Interest
Rate Notice as the "CMT Rate," the CMT Rate shall
mean, with respect to any Interest Determination Date
relating to this Note for which the interest rate is
determined with reference to the CMT Rate (a "CMT
Rate Interest Determination Date"), the rate
displayed on the Designated CMT Telerate Page (as
defined below) under the caption "...Treasury
Constant Maturities ... Federal Reserve Board Release
H.15 ... Mondays Approximately 3:45 P.M.," under the
column for the Designated CMT Maturity Index (as
defined below) for (i) if the Designated CMT Telerate
Page is 7055, the rate on such CMT Rate Interest
Determination Date and (ii) if the Designated CMT
Telerate Page is 7052, the weekly or monthly average,
as specified in the Floating Interest Rate Notice,
for the week or the month, as applicable, ended
immediately preceding the week or the month, as
applicable, in which the related CMT Rate Interest
Determination Date occurs. If such rate is no longer
displayed on the relevant page or is not displayed by
3:00 p.m., New York City time, on the related
Calculation Date, then the CMT Rate for such CMT Rate
Interest Determination Date will be such treasury
constant maturity rate for the Designated CMT
Maturity Index as published in H.15(519). If such
rate is no longer published or is not published by
3:00 p.m., New York City time, on the related
Calculation Date, then the CMT Rate on such CMT Rate
Interest Determination Date will be such treasury
constant maturity rate for the Designated CMT
Maturity Index (or other United States Treasury rate
for the Designated CMT Maturity Index) for the CMT
Rate Interest Determination Date with respect to such
Interest Reset Date as may then be published by
either the Board of Governors of the Federal Reserve
System or the United States Department of the
Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the
Designated CMT Telerate Page and published in
H.15(519). If such information is not provided by
3:00 p.m., New York City time, on the related
Calculation Date, then the CMT Rate on the CMT Rate
Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity,
based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30
p.m., New York City time, on such CMT Rate Interest
Determination Date reported, according to their
written records, by three leading primary United
States government securties dealers (each, a
"Reference Dealer") in the City of New York (which
may include the Remarketing Agent or its affiliates)
selected by the Calculation Agent after consultation
with the Company (from five such Reference Dealers
selected by the Calculation Agent, after consultation
with the Company, and eliminating the highest
quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event
of equality, one of the lowest)), for the most
recently issued direct noncallable fixed rate
obligations of the United States ("Treasury Notes")
with an original maturity of approximately the
Designated CMT Maturity Index and a remaining term to
maturity of not less than such Designated CMT
Maturity Index minus one year. If the Calculation
Agent is unable to obtain three such Treasury Note
quotations, the CMT Rate on such CMT Rate Interest
Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity
based on the arithmetic mean of the secondary market
offer side prices as of approximately 3:30 p.m., New
York City time, on such CMT Rate Interest
Determination Date of three Reference Dealers in the
City of New York (from five such Reference Dealers
selected by the Calculation Agent, after consultation
with the Company, and eliminating the highest
quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event
of equality, one of the lowest)), for Treasury Notes
with an original maturity of the number of years that
is the next highest to the Designated CMT Maturity
Index and a remaining term to maturity closest to the
Designated CMT Maturity Index and in an amount of at
least U.S. $100 million. If three or four (and not
five) of such Reference Dealers are quoting as
described above, then the CMT Rate will be based on
the arithmetic mean of the offer prices obtained and
neither the highest nor the lowest of such quotes
will be eliminated; provided, however, that if fewer
than three Reference Dealers so selected by the
Calculation Agent, after consultation with the
Company, are quoting as mentioned herein, the CMT
Rate determined as of such CMT Rate Interest
Determination Date will be the CMT Rate in effect on
such CMT Rate Interest Determination Date. If two
Treasury Notes with an original maturity as described
in the second preceding sentence have remaining terms
to maturity equally close to the Designated CMT
Maturity Index, the Calculation Agent, after
consultation with the Company, will obtain from five
Reference Dealers quotations for the Treasury Note
with the shorter remaining term to maturity.
Federal Funds Rate. If an Interest Rate Basis
for this Note is specified in the applicable Floating
Interest Rate Notice, as the "Federal Funds Rate",
the Federal Funds Rate means, with respect to any
Interest Determination Date relating to this Note for
which the interest rate is determined with reference
to the Federal Funds Rate (a "Federal Funds Rate
Interest Determination Date"), the rate on such date
for United States dollar federal funds as published
in H.15(519) under the heading "Federal Funds
(Effective)" or, if not published by 3:00 p.m., New
York City time, on the Calculation Date, the rate on
such Federal Funds Rate Interest Determination Date
as published in Composite Quotations under the
heading "Federal Funds/Effective Rate." If such rate
is not published in either H.15(519) or Composite
Quotations by 3:00 p.m., New York City time, on the
related Calculation Date, then the Federal Funds Rate
on such Federal Funds Rate Interest Determination
Date will be calculated by the Calculation Agent and
will be the arithmetic mean of the rates for the last
transaction in overnight United States dollar federal
funds arranged by three leading brokers of federal
funds transactions in the City of New York (which may
include the Remarketing Agent or its affiliates)
selected by the Calculation Agent after consultation
with the Company, prior to 9:00 a.m., New York City
time, on such Federal Funds Rate Interest
Determination Date; provided, however, that if the
brokers so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the Federal
Funds Rate determined as of such Federal Funds Rate
Interest Determination Date will be the Federal Funds
Rate in effect on such Federal Funds Rate Interest
Determination Date.
LIBOR. If an Interest Rate Basis for this Note
is specified in the applicable Floating Interest Rate
Notice as "LIBOR," LIBOR shall mean the rate
determined by the Calculation Agent as of the
applicable Interest Determination Date (a "LIBOR
Interest Determination Date") in accordance with the
following provisions:
(i) If (a) "LIBOR Reuters" is specified in the
applicable Floating Interest Rate Notice, the
arithmetic mean of the offered rates (unless the
Designated LIBOR Page by its terms provides only
for a single rate, in which case such single
rate will be used) for deposits in the Index
Currency having the Index Maturity specified in
the applicable Floating Interest Rate Notice,
commencing on the applicable Interest Reset
Date, that appear (or, if only a single rate is
required as aforesaid, appears) on the
Designated LIBOR Page as of 11:00 a.m., London
time, on such LIBOR Interest Determination Date,
or (b) "LIBOR Telerate" is specified in the
applicable Floating Interest Rate Notice, or if
neither "LIBOR Reuters" nor "LIBOR Telerate" is
specified in the applicable Floating Interest
Rate Notice as the method for calculating LIBOR,
the rate for deposits in the Index Currency
having the Index Maturity specified in the
applicable Floating Interest Rate Notice,
commencing on such Interest Reset Date, that
appears on the Designated LIBOR Page as of 11:00
a.m., London time, on such LIBOR Interest
Determination Date. If fewer than two such
offered rates appear, or if no such rate
appears, as applicable, LIBOR on such LIBOR
Interest Determination Date will be determined
in accordance with the provisions described in
clause (ii) below.
(ii) With respect to a LIBOR Interest
Determination Date on which fewer than two
offered rates appear, or no rate appears, as the
case may be, on the Designated LIBOR Page as
specified in clause(i) above, the Calculation
Agent will request the principal London offices
of each of four major reference banks in the
London interbank market, as selected by the
Calculation Agent, after consultation with the
Company, to provide the Calculation Agent with
its offered quotation for deposits in the Index
Currency for the period of the Index Maturity
specified in the applicable Floating Interest
Rate Notice, commencing on the applicable
Interest Reset Date, to prime banks in the
London interbank market at approximately 11:00
a.m., London time, on such LIBOR Interest
Determination Date and in a principal amount
that is representative for a single transaction
in such Index Currency in such market at such
time. If at least two such quotations are so
provided, then LIBOR on such LIBOR Interest
Determination Date will be the arithmetic mean
of such quotations. If fewer than two such
quotations are so provided, then LIBOR on such
LIBOR Interest Determination Date will be the
arithmetic mean of the rates quoted at
approximately 11:00 a.m., in the applicable
Principal Financial Center, on such LIBOR
Interest Determination Date by three major banks
in such Principal Financial Center selected by
the Calculation Agent, after consultation with
the Company, for loans in the Index Currency to
leading European banks, having the Index
Maturity specified in the applicable Floating
Interest Rate Notice and in a principal amount
that is representative for a single transaction
in such Index Currency in such market at such
time; provided, however, that if the banks so
selected by the Calculation Agent are not
quoting as mentioned in this sentence, LIBOR
determined as of such LIBOR Interest
Determination Date will be LIBOR in effect on
such LIBOR Interest Determination Date.
Prime Rate. If an Interest Rate Basis for this
Note is specified in the applicable Floating Interest
Rate Notice as the "Prime Rate," Prime Rate shall
mean, with respect to any Interest Determination Date
relating to this Note for which the interest rate is
determined with reference to the Prime Rate (a "Prime
Rate Interest Determination Date"), the rate on such
date as such rate is published in H.15(519) under the
heading "Bank Prime Loan." If such rate is not
published prior to 3:00 p.m., New York City time, on
the related Calculation Date, then the Prime Rate
will be the arithmetic mean of the rates of interest
publicly announced by each bank that appears on the
Reuters Screen U.S. PRIME 1 Page as such bank's prime
rate or base lending rate as in effect for such Prime
Rate Interest Determination Date. If fewer than four
such rates appear on the Reuters Screen U.S. PRIME 1
Page for such Prime Rate Interest Determination Date,
the Prime Rate will be the arithmetic mean of the
prime rates quoted on the basis of the actual number
of days in the year divided by a 360-day year as of
the close of business on such Prime Rate Interest
Determination Date by four major money center banks
(which may include the Calculation Agent) in the City
of New York selected by the Calculation Agent, after
consultation with the Company. If fewer than four
such quotations are so provided, the Prime Rate will
be the arithmetic mean of four prime rates quoted on
the basis of the actual number of days in the year
divided by a 360-day year as of the close of business
on such Prime Rate Interest Determination Date as
furnished in the City of New York by the major money
center banks, if any, that have provided such
quotations and by as many substitute banks or trust
companies (which may include the Calculation Agent)
as necessary in order to obtain four such prime rate
quotations, provided such substitute banks or trust
companies are organized and doing business under the
laws of the United States, or any State thereof, have
total equity capital of at least U.S. $500 million
and are each subject to supervision or examination by
Federal or State authority, selected by the
Calculation Agent, after consultation with the
Company, to provide such rate or rates; provided,
however, that if the banks or trust companies so
selected by the Calculation Agent are not quoting as
mentioned in this sentence, the Prime Rate determined
as of such Prime Rate Interest Determination Date
will be the Prime Rate in effect on such Prime Rate
Interest Determination Date.
Treasury Rate. If an Interest Rate Basis for
this Note is specified in the applicable Floating
Interest Rate Notice as the "Treasury Rate," Treasury
Rate means, with respect to any Interest
Determination Date relating to this Note for which
the interest rate is determined with reference to the
Treasury Rate (a "Treasury Rate Interest
Determination Date"), as the rate from the auction
held on such Treasury Rate Interest Determination
Date (the "Auction") of direct obligations of the
United States ("Treasury Bills") having the Index
Maturity specified in the applicable Floating
Interest Rate Notice, as such rate is published in
H.15(519) under the heading "Treasury Bills-auction
average (investment)" or, if not published by 3:00
p.m., New York City time, on the related Calculation
Date, the auction average rate of such Treasury Bills
(expressed as a bond equivalent on the basis of a
year of 365 or 366 days, as applicable, and applied
on a daily basis) as otherwise announced by the
United States Department of the Treasury. In the
event that the results of the Auction of Treasury
Bills having the Index Maturity specified in the
applicable Floating Interest Rate Notice are not
reported as provided above by 3:00 p.m., New York
City time, on such Calculation Date, or if no such
Auction is held, then the Treasury Rate will be
calculated by the Calculation Agent, and will be a
yield to maturity (expressed as a bond equivalent on
the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) of the
arithmetic mean of the secondary market bid rates, as
of approximately 3:30 p.m., New York City time, on
such Treasury Rate Interest Determination Date, of
three leading primary United States government
securities dealers (which may include the Remarketing
Agent or its affiliates) selected by the Calculation
Agent, after consultation with the Company, for the
issue of Treasury Bills with a remaining maturity
closest to the Index Maturity specified in the
applicable Floating Interest Rate Notice; provided,
however, that if the dealers so selected by the
Calculation Agent are not quoting as mentioned in
this sentence, the Treasury Rate determined as of
such Treasury Rate Interest Determination Date will
be the Treasury Rate in effect on such Treasury Rate
Interest Determination Date.
OTHER PROVISIONS
The Indenture permits, with certain exceptions
as therein provided, the amendment thereof and the
modification of the rights and obligations of the
Company and the rights of the Holders of the
Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee
with the consent of the Holders of a majority in
principal amount of the Securities at the time
Outstanding of each series to be affected and of the
Holders of 66 2/3% in principal amount of the
Securities at the time Outstanding of all series to
be affected. The Indenture also contains provisions
permitting the Holders of specified percentages in
principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their
consequences. To the extent permitted by law, any
such consent or waiver by the Holder of this Note
shall be conclusive and binding upon such Holder and
upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not
notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no
provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal
of (and premium, if any) and interest on this Note at
the times, place and rate, and in the coin or
currency, herein prescribed.
All terms used in this Note which are defined in
the Indenture shall have the meanings assigned to
them in the Indenture.
This Note shall be governed by and construed in
accordance with the laws of The State of New York.<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription
on the face of this instrument, shall be construed as though
they were written out in full according to applicable laws or
regulations:
TEN COM -- as tenants in common UNIF GIFT MIN ACT--_____ CUSTODIAN____
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right Under Uniform Gifts to Minors Act
of survivorship and not as
tenants in common ___________________________
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s),assign(s)
and transfer(s) unto
Please Insert Social Security or
Other Identifying Number of Assignee
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL
ZIP CODE OF ASSIGNEE
the within Security of TECO Energy, Inc. and does hereby
irrevocably constitute and appoint
__________________________________________________ attorney to
transfer said Security on the books of the Company, with full power of
substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatsoever.
<PAGE>
ANNEX A
Remarketed Note Due 2038
Initial Interest Rate Period
CUSIP Number:
Principal Amount: $150,000,000
Original Issue Date: September __, 1998
Issue Price: 100%
Stated Maturity: September 15, 2038
Initial Interest Rate: [_____] % per annum
Interest Payment Dates: September 15 and March 15, commencing
March 15, 1999
Record Dates: Fifteenth calendar day immediately
preceding the related Interest Payment
Date whether or not a Business Day
Initial Callholder: Morgan Stanley & Co. Incorporated
Initial REPS
Remarketing Date: September 15, 2001
REPS Period: September 15, 2001 up to, but excluding,
September 15, 2011
Base Rate: [_____] %
REPS Coupon Reset Rate:
Reference Corporate Dealers:
Reference Treasury Dealers:
<PAGE>
Subsequent Interest Rate Period(s)
CUSIP Number:
Principal Amount:
Interest Rate Adjustment Date:
Record Date(s):
Interest Payment Date(s):
Interest Rate Mode:
[ ] Commercial Paper Term Mode
[ ] Long Term Rate Mode
[ ] REPS Mode
[ ] Callholder:
[ ] REPS Remarketing Date:
[ ] REPS Rate Period:
[ ] Base Rate:
[ ] Reps Coupon Reset Rate:
[ ] Reference Corporate Dealers:
[ ] Reference Treasury Dealers:
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Interest Rate:
[ ] Fixed Rate:
[ ] Floating Rate:
Calculation Agent: . . . . . . . . . . . . . . . . . .
Initial Interest Rate to Initial Interest Reset
Date:
Interest Rate Basis(es):
[ ] CD Rate
Index Maturity:
[ ] CMT Rate
Index Maturity:
Designated CMT Telerate Page:
[ ] Commercial Paper Rate
Index Maturity:
[ ] Federal Funds Rate
[ ] LIBOR
[ ] LIBOR Reuters
Index Currency:
Index Maturity:
[ ] LIBOR Telerate
Index Currency:
Index Maturity:
[ ] Prime Rate
[ ] Treasury Rate
Index Maturity:
Spread (+/-):
Spread Multiplier:
Floating Rate Maximum Interest Rate:
Floating Rate Minimum Interest Rate:
Initial Interest Reset Date:
Interest Reset Date:
Interest Reset Period(s):
Day Count Convention:
[ ] Actual/360
[ ] Actual/Actual
[ ] 30/360
Applicable Interest Rate Basis:
Optional Redemption Provisions (Long Term Rate Mode):
Applicable Redemption Period Redemption Price
Other or Alternative Terms of Optional Repayment:
Early Remarketing Provisions (Long Term Rate Mode):
Initial Early Remarketing Date:_____________
Initial Early Remarketing Premium:__________
Annual Early Remarketing Premium Percentage
Reduction:_________
Other or Alternative Terms of Early Remarketing:
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Other Provisions:
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