<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 24, 1998.
REGISTRATION NO. 333-60819
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------
TECO ENERGY, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
FLORIDA 59-2052286
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
</TABLE>
--------------------------
TECO PLAZA, 702 NORTH FRANKLIN STREET, TAMPA, FLORIDA 33602 (813) 228-4111
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------------------------
DAVID E. SCHWARTZ, ESQ.
Secretary
TECO Energy, Inc.
702 North Franklin Street
Tampa, Florida 33602
(813) 228-4111
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------------
WITH COPIES TO:
<TABLE>
<S> <C>
DAVID R. POKROSS, JR., ESQ. MARK V. NUCCIO, ESQ.
Palmer & Dodge LLP Ropes & Gray
One Beacon Street One International Place
Boston, Massachusetts 02108-3190 Boston, Massachusetts 02110-2624
</TABLE>
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
--------------------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
--------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
SUBJECT TO COMPLETION, DATED AUGUST 24, 1998
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
PROSPECTUS
$200,000,000
TECO ENERGY, INC.
DEBT SECURITIES
----------------
TECO Energy, Inc. ("TECO" or the "Company") may offer, from time to time,
its unsecured notes, debentures or other evidence of unsecured indebtedness (the
"Debt Securities"), in one or more series, in an aggregate principal amount of
up to $200,000,000. Debt Securities may be issued in registered form without
coupons or in the form of one or more global securities (each a "Global
Security").
When a particular series of Debt Securities is offered, a supplement to this
Prospectus will be delivered (each a "Prospectus Supplement") together with this
Prospectus setting forth the terms of such Debt Securities, including, where
applicable, the specific designation, aggregate principal amount, denominations,
maturity, interest rate (which may be fixed or variable) and time of payment of
interest, any terms for redemption, any terms for repayment at the option of the
holder, any terms for sinking fund payments, the initial public offering price,
any listing of the Debt Securities on a securities exchange and other terms in
connection with the offering and sale of such Debt Securities.
TECO may sell Debt Securities to or through dealers or underwriters,
directly to other purchasers or through agents. See "PLAN OF DISTRIBUTION." A
Prospectus Supplement will set forth the names of such underwriters, dealers or
agents, if any, any applicable commissions or discounts and the proceeds to TECO
from such sales.
This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by a Prospectus Supplement applicable to the Debt Securities
being sold.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is August 24, 1998.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files periodic reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission") relating to its
business, financial statements and other matters. Reports and proxy and
information statements filed with the Commission as well as copies of the
Registration Statement, of which this Prospectus is a part, can be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549, and at
the following Regional Offices of the Commission: Midwest Regional Office, 500
West Madison Avenue, Suite 1400, Chicago, Illinois 60661; and Northeast Regional
Office, 7 World Trade Center, Suite 1300, New York, New York 10048. Copies of
such material can also be obtained at prescribed rates from the Public Reference
Section of the Commission at its principal office at 450 Fifth Street, N.W.,
Judiciary Plaza, Washington, D.C. 20549. Such reports and other information can
also be reviewed on the Commission's web site (http://www.sec.gov). TECO common
stock is listed on the New York Stock Exchange (the "NYSE"). Reports and other
information concerning the Company may be inspected at the offices of the NYSE
at 20 Broad Street, New York, New York 10005.
TECO has filed a Registration Statement on Form S-3 (together with all
amendments and exhibits thereto, the "Registration Statement") with the
Commission under the Securities Act of 1933, as amended (the "Securities Act")
with respect to the Debt Securities. This Prospectus does not contain all of the
information set forth in such Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission.
Reference is made to such Registration Statement and to the exhibits relating
thereto for further information with respect to the Company and the Debt
Securities. Statements contained herein concerning the provisions of any
document filed as an exhibit to the Registration Statement or otherwise filed
with the Commission are not necessarily complete, and in each instance reference
is made to the copy of such document so filed. Each such statement is qualified
in its entirety by such references.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents previously filed by the Company with the Commission
(File No. 1-8180) are hereby incorporated by reference: (i) the Company's Annual
Report on Form 10-K for the year ended December 31, 1997, (ii) the Company's
Quarterly Report on Form 10-Q for the quarter ended March 31, 1998, and (iii)
the Company's Current Reports on Form 8-K, dated January 9, March 20 and July
20, 1998.
Each document filed by the Company subsequent to the date of this Prospectus
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
termination of the offering of the Debt Securities shall be deemed to be
incorporated herein by reference and to be a part hereof from the date of filing
of such document. Any statement contained herein or in a document all or a
portion of which is incorporated or deemed to be incorporated herein by
reference shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein, in any other
subsequently filed document that also is or is deemed to be incorporated herein
by reference or in any prospectus supplement modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon the written or oral request by such person, a copy
of any document described above, other than exhibits (unless such exhibits are
specifically incorporated by reference to such documents). Requests for such
copies should be directed to TECO Energy, Inc., TECO Plaza, 702 North Franklin
Street, Tampa, Florida 33602, attention: Sandra W. Callahan, Vice President --
Treasurer; telephone number: (813) 228-4111.
2
<PAGE>
THE COMPANY
TECO is an electric and gas utility holding company with important
diversified activities. Its diversified operating businesses are engaged in
marine transportation, coal mining, natural gas production from coalbeds,
independent power generation, the sale of propane gas, the marketing of natural
gas, energy services and engineering and the marketing of advanced energy
management, automation and control systems. TECO's operating companies have
facilities in several states and Central America. A more complete description of
the business of the Company and its recent activities can be found in the
documents listed in "DOCUMENTS INCORPORATED BY REFERENCE." The principal offices
of the Company, a Florida corporation, are located at TECO Plaza, 702 North
Franklin Street, Tampa, Florida 33602, and its telephone number at such offices
is (813) 228-4111.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's consolidated ratios of earnings
to fixed charges for the periods shown.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
SIX MONTHS ENDED TWELVE MONTHS ENDED -----------------------------------------------------
JUNE 30, 1998 JUNE 30, 1998 1997 1996 1995 1994 1993
- ----------------- -------------------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
3.27x(1) 3.61x(2) 3.77x(3) 3.72x 3.48x 3.06x(4) 3.23x(5)
</TABLE>
For the purposes of calculating these ratios, earnings consist of income before
income taxes and fixed charges. Fixed charges consist of interest on
indebtedness, amortization of debt premium, the interest component of rentals
and preferred stock dividend requirements.
- ------------------------
(1) Includes the effect of non-recurring pretax charges totaling $25.9 million
associated with write-offs at TECO Coal Corporation, TeCom Inc. and Tampa
Electric Company, each a wholly owned subsidiary of TECO, and $0.4 million
pretax of merger-related costs. The effect of these charges was to reduce
the ratio of earnings to fixed charges. Had these charges been excluded from
the calculation, the ratio of earnings to fixed charges would have been
3.75x for the six-month period ended June 30, 1998.
(2) Includes the effect of the non-recurring pretax charges discussed in Note 1
above and $3.7 million, pretax, of additional costs related to the mergers
completed in 1997. The effect of these charges was to reduce the ratio of
earnings to fixed charges. Had these charges been excluded from the
calculation, the ratio of earnings to fixed charges would have been 3.89x
for the 12-month period ended June 30, 1998.
(3) Includes a $2.6-million pretax charge for all transactions associated with
the mergers completed in June 1997. The effect of this charge was to reduce
the ratio of earnings to fixed charges. Had this charge been excluded from
the calculation, the ratio of earnings to fixed charges would have been
3.79x for the year ended December 31, 1997.
(4) Includes the effect of a $25-million pretax restructuring charge. The effect
of this charge was to reduce the ratio of earnings to fixed charges. Had
this non-recurring charge been excluded from the calculation, the ratio of
earnings to fixed charges would have been 3.30x for the year ended December
31, 1994.
(5) Includes the effect of the non-recurring $10-million pretax charge
associated with a coal pricing settlement at Tampa Electric Company. The
effect of this charge was to reduce the ratio of earnings to fixed charges.
Had this non-recurring charge been excluded from the calculation, the ratio
of earnings to fixed charges would have been 3.33x for the year ended
December 31, 1993.
3
<PAGE>
USE OF PROCEEDS
The Company intends to add the net proceeds from the sale of the Debt
Securities to its general funds, to be used for general corporate purposes,
which may include investment in subsidiaries, working capital, repayment of debt
and other business opportunities.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will constitute unsecured debt of the Company and will
rank on a parity with all other unsecured and unsubordinated indebtedness of the
Company. The Debt Securities will be issued in one or more series under an
indenture (the "Indenture") to be dated as of August 17, 1998 between the
Company and The Bank of New York, as Trustee (the "Trustee"). The form of the
Indenture is filed as an exhibit to the Registration Statement of which this
Prospectus is a part. The statements under this heading do not purport to be
complete and are subject to the detailed provisions of, and are qualified in
their entirety by reference to, the Indenture. Capitalized terms used herein but
not defined are used as defined in the Indenture.
GENERAL
The Indenture does not limit the aggregate principal amount of the Debt
Securities issuable thereunder or of any particular series of Debt Securities.
The Debt Securities of any series need not be issued at the same time or bear
interest at the same rate or mature on the same date.
Reference is made to the Prospectus Supplement (the "Prospectus Supplement")
for the following terms of any particular series of Debt Securities: (i) the
title of such Debt Securities; (ii) any limit on the aggregate principal amount
of such Debt Securities or the series of which they are a part; (iii) the date
or dates on which the principal of any of such Debt Securities will be payable
or the method by which such date or dates will be determined; (iv) the rate or
rates at which any of such Debt Securities will bear interest, if any, or the
method by which such rate or rates will be determined, and the date or dates
from which any such interest will accrue; (v) the dates on which any such
interest will be payable and the record dates, if any, for any such interest
payments; (vi) if applicable, whether the interest payment periods may be
extended by the Company and, if so, the permitted duration of any such
extensions; (vii) the place or places where the principal of and interest on any
of such Debt Securities will be payable; (viii) the obligation, if any, of the
Company to redeem or purchase any of such Debt Securities pursuant to any
sinking fund, purchase fund or analogous provision or at the option of the
Holder thereof and the terms and conditions on which any of such Debt Securities
may be redeemed or purchased pursuant to such obligation; (ix) the denominations
in which any of such Debt Securities will be issuable, if other than
denominations of $1,000 or any integral multiple thereof; (x) the terms and
conditions, if any, on which any of such Debt Securities may be redeemed at the
option of the Company; (xi) the currency, currencies or currency units in which
the principal of and any premium and interest on any of such Debt Securities
will be payable, if other than U.S. dollars, and the manner of determining the
equivalent thereof in U.S. dollars for any purpose; (xii) whether any of such
Debt Securities will be issuable in whole or in part in the form of one or more
Global Securities and, if so, the identity of the depositary (the "Depositary")
for any such Global Security and any provisions regarding the transfer, exchange
or legending of any such Global Security if different from those described below
under the caption "Global Securities;" (xiii) any addition to, change in or
deletion from the Events of Default or covenants described herein with respect
to any of such Debt Securities and any change in the right of the Trustee or the
Holders to declare the principal amount of any of such Debt Securities due and
payable; (xiv) any index or formula used to determine the amount of principal of
or any premium or interest on any of such Debt Securities and the manner of
determining any such amounts; (xv) any subordination of such Debt Securities to
any other indebtedness of the Company; and (xvi) other material terms of such
Debt Securities.
4
<PAGE>
Unless otherwise indicated in the Prospectus Supplement relating thereto,
Debt Securities will be issued only in fully registered form, without coupons,
in denominations of $1,000 or any integral multiple thereof, and no service
charge will be made for any registration of transfer or exchange of Debt
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the principal of and any premium and interest on any Debt Securities will be
payable, and such Debt Securities will be exchangeable and transfers thereof
will be registrable, at the corporate trust office of The Bank of New York in
the City of New York, New York, and payment of any interest due on any Debt
Security will be made to the person in whose name such Debt Security is
registered at the close of business on the regular record date for such
interest.
If the Debt Securities of any series (or any Debt Securities of a specified
tenor within any series) are to be redeemed, the Company will not be required to
(i) issue, register the transfer of, or exchange any Debt Security of that
series (or any Debt Securities of a specified tenor within any series, as the
case may be) during a period beginning at the opening of business 15 days before
the day of mailing of a notice of redemption of any such Debt Security that may
be selected for redemption and ending at the close of business on the day of
such mailing or (ii) register the transfer of or exchange any Debt Security so
selected for redemption, in whole or in part, except the unredeemed portion of
any such Debt Security being redeemed in part.
Debt Securities may be offered and sold at a substantial discount below
their principal amount ("Original Issue Discount Securities"). Special United
States Federal income tax and other considerations, if any, applicable thereto
will be described in the applicable Prospectus Supplement. In addition, certain
special Federal income tax or other considerations, if any, applicable to any
Debt Securities that are denominated in a currency or currency unit other than
U.S. dollars may be described in the applicable Prospectus Supplement.
Except as otherwise described in the applicable Prospectus Supplement, the
covenants contained in the Indenture would not afford any Holders of Debt
Securities issued thereunder protection in the event of a highly leveraged
transaction involving the Company.
The Debt Securities are obligations exclusively of TECO, which, as a holding
company, has no material assets other than its ownership of the common stock of
its subsidiaries, including Tampa Electric Company. TECO will rely entirely upon
distributions from its subsidiaries to meet its payment obligations with respect
to the Debt Securities. The subsidiaries are separate and distinct legal
entities and have no obligation, contingent or otherwise, to pay amounts due
under the Debt Securities or otherwise to make any funds available therefor,
including the payment of dividends or other distributions or the extension of
loans or advances. Furthermore, the ability of the Company's subsidiaries to
make any such payments to the Company would be dependent upon the terms of any
credit facilities of such subsidiaries and upon such subsidiaries' earnings,
which are subject to various business risks. In a bankruptcy or insolvency
proceeding, claims of holders of the Debt Securities would be satisfied solely
from TECO's equity interest in its subsidiaries remaining after the satisfaction
of claims of creditors of such subsidiaries. Thus the Debt Securities are
effectively subordinated to existing and future liabilities of the Company's
subsidiaries to their respective creditors.
GLOBAL SECURITIES
Some or all of the Debt Securities of a series may be represented in whole
or in part by one or more Global Securities, which will be deposited with or on
behalf of one or more Depositaries.
5
<PAGE>
The specific terms of the depositary arrangement with respect to any Debt
Securities of a series will be described in the Prospectus Supplement relating
thereto. The Company anticipates that the following provisions will apply to all
depositary arrangements.
Unless otherwise specified in the Prospectus Supplement relating thereto,
Debt Securities that are to be represented by a Global Security or Global
Securities to be deposited with or on behalf of a Depositary will be represented
by a Global Security or Global Securities registered in the name of such
Depositary or its nominee. Upon the issuance of a Global Security in registered
form, the Depositary for such Global Security will credit, on its book-entry
registration and transfer system, the respective principal amounts of the Debt
Securities represented by such Global Security to the accounts of institutions
that have accounts with such Depositary or its nominee ("Participants"). The
accounts to be credited will be designated by the underwriters or agents of such
Debt Securities or by the Company, if such Debt Securities are offered and sold
directly by the Company. Ownership of beneficial interests in such Global
Securities will be limited to Participants or persons that may hold interests
through Participants. Ownership of beneficial interests by Participants in such
Global Securities will be shown on, and the transfer of any such ownership
interest will be effected only through, records maintained by the Depositary or
its nominee for such Global Security. Ownership of beneficial interests in
Global Securities by persons that hold through Participants will be effected
only through records maintained by such Participants. The laws of some
jurisdictions require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to transfer beneficial interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or Holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture. Except as set forth below, owners of beneficial interests in the
Global Security will not be entitled to have the Debt Securities represented by
such Global Security registered in their names, will not receive or be entitled
to receive physical delivery of the Debt Securities in definitive form and will
not be considered the owners or Holders thereof under the Indenture.
Payment of principal of and any premium and interest on Debt Securities
registered in the name of or held by a Depositary or its nominee will be made in
immediately available funds to the Depositary or its nominee, as the case may
be, as the registered owner or the Holder of the Global Security representing
such Debt Securities. None of the Company, the Trustee, any Paying Agent or the
Security Registrar for such Debt Securities will have any responsibility or
liability for any aspect of the records relating to, or payments made on account
of, beneficial ownership interests in a Global Security for such Debt Securities
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
The Company expects that a Depositary for Debt Securities of a series, upon
receipt of any payment of principal or any premium or interest in respect of a
Global Security, will immediately credit Participants' accounts with payment in
amounts proportionate to their respective beneficial interests in the principal
amount of such Global Security as shown on the records of such Depositary. The
Company also expects that payments by Participants to owners of beneficial
interests in such Global Security held through such Participants will be
governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers registered in "street name,"
and will be the responsibility of such Participants.
A Global Security may not be transferred in whole or in part except by the
Depositary for such Global Security to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. If a Depositary for Debt Securities
of a series is at any time unwilling or unable to continue as Depositary and a
successor Depositary is not appointed by the Company, the Company will issue
Debt Securities in definitive registered form in exchange for the Global
Security or Global Securities representing such Debt Securities. In addition,
the Company may at any time
6
<PAGE>
determine not to have any Debt Securities represented by one or more Global
Securities and, in such event, will issue Debt Securities in definitive
registered form in exchange for the Global Securities representing such Debt
Securities. In any such instance, an owner of a beneficial interest in a Global
Security will be entitled to physical delivery in definitive form of Debt
Securities of the series represented by such Global Security equal in principal
amount to such beneficial interest and to have such Debt Securities registered
in its name.
BOOK-ENTRY ISSUANCE
The Depository Trust Company ("DTC") will act as securities Depositary for
all of the Debt Securities, unless otherwise indicated in the Prospectus
Supplement relating to an offering of Debt Securities. Such Debt Securities will
be issued only as fully registered securities registered in the name of Cede &
Co. (DTC's partnership nominee). One or more fully registered global
certificates will be issued for the Debt Securities, representing the aggregate
principal balance of such Debt Securities, and will be deposited with the
Trustee as custodian for DTC.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its Participants deposit with DTC. DTC also facilitates
the settlement among Participants of securities transactions, such as transfers
and pledges, in deposited securities through electronic computerized book-entry
changes in Participants' accounts, thereby eliminating the need for physical
movement of securities certificates. "Direct Participants" include securities
brokers and dealers, banks, trust companies, clearing corporations and certain
other organizations. DTC is owned by a number of its Direct Participants and by
the New York Stock Exchange, Inc., the American Stock Exchange, Inc. and the
National Association of Securities Dealers, Inc. Access to the DTC system is
also available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain custodial relationships with Direct
Participants, either directly or indirectly ("Indirect Participants"). The rules
applicable to DTC and its Participants are on file with the Commission.
Purchases of Debt Securities within the DTC system must be made by or
through Direct Participants, which will receive a credit for the Debt Securities
on DTC's records. The ownership interest of each actual purchaser of each Debt
Security ("Beneficial Owner") is in turn to be recorded on the Direct and
Indirect Participants' records. Beneficial Owners will not receive written
confirmation from DTC of their purchases, but Beneficial Owners are expected to
receive written confirmations providing details of the transactions, as well as
periodic statements of their holdings, from the Direct or Indirect Participants
through which the Beneficial Owners purchased Debt Securities. Transfers of
ownership interests in the Debt Securities are to be accomplished by entries
made on the books of Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interests in Debt Securities, except in the event that use of the book-entry
system for the Debt Securities is discontinued.
To facilitate subsequent transfers, all Debt Securities deposited by
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. The deposit of Debt Securities with DTC and their registration in the
name of Cede & Co. effect no change in beneficial ownership. DTC has no
knowledge of the actual Beneficial Owners of the Debt Securities; DTC's records
reflect only the identity of the Direct Participants to whose accounts such Debt
Securities are credited, which may or may not be the Beneficial Owners. The
Participants will remain responsible for keeping account of their holdings on
behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners
7
<PAGE>
and the voting rights of Direct Participants, Indirect Participants and
Beneficial Owners will be governed by arrangements among them, subject to any
statutory or regulatory requirements as may be in effect from time to time.
Redemption notices will be sent to Cede & Co. as the registered holder of
the Debt Securities. If less than all of the Debt Securities are being redeemed,
DTC's current practice is to determine by lot the amount of the interest of each
Direct Participant to be redeemed.
Although voting with respect to the Debt Securities is limited to the
holders of record of the Debt Securities, in those instances in which a vote is
required, neither DTC nor Cede & Co. will itself consent or vote with respect to
Debt Securities. Under its usual procedures, DTC would mail an omnibus proxy
(the "Omnibus Proxy") to the Trustee as soon as possible after the record date.
The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those
Direct Participants to whose accounts such Debt Securities are credited on the
record date (identified in a listing attached to the Omnibus Proxy).
Payments of principal of and any premium and interest on the Debt Securities
will be made by the Trustee to Cede & Co., as DTC's partnership nominee. DTC's
practice is to credit Direct Participants' accounts on the relevant payment date
in accordance with their respective holdings shown on DTC's records unless DTC
has reason to believe that it will not receive payments on such payment date.
Payments by Participants to Beneficial Owners will be governed by standing
instructions and customary practices and will be the responsibility of such
Participant and not of DTC or the Company, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payment of
distributions to DTC is the responsibility of the Trustee, disbursement of such
payments to Direct Participants shall be the responsibility of DTC, and
disbursements of such payments to the Beneficial Owners is the responsibility of
Direct and Indirect Participants.
DTC may discontinue providing its services as securities Depositary with
respect to any of the Debt Securities at any time by giving reasonable notice to
the Company. In the event that a successor securities Depositary is not
obtained, definitive certificates representing such Debt Securities are required
to be printed or delivered. The Company, at its option, may decide to
discontinue use of the system of book-entry transfers through DTC (or a
successor Depositary).
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that the Company believes to be accurate, but the
Company assumes no responsibility for the accuracy thereof. The Company has no
responsibility for the performance by DTC or its Participants of their
respective obligations as described herein or under the rules and procedures
governing their respective operations.
REDEMPTION
Any terms and conditions for the optional or mandatory redemption of any
Debt Securities will be set forth in the applicable Prospectus Supplement.
Except as otherwise provided in the applicable Prospectus Supplement, Debt
Securities will be redeemable by the Company only upon notice mailed not less
than 30 nor more than 60 days prior to the date fixed for redemption.
CONSOLIDATION, MERGER, ETC.
The Company will not consolidate or merge with or into any other Corporation
or Corporations, or convey or transfer its properties and assets as an entirety
or substantially as an entirety to any Person, unless (i) the successor or
transferee Corporation shall be a Corporation organized and existing under the
laws of the United States of America, any State thereof, or the District of
Columbia, and the successor or transferee assumes by supplemental indenture the
due and punctual payment of the principal of and premium and interest on all the
Debt Securities and the performance of every covenant of the Indenture to be
performed or observed by the Company; (ii) immediately after giving effect to
such consolidation,
8
<PAGE>
merger, sale or transfer, no Event of Default, and no event which, after notice
or lapse of time, or both, would become an Event of Default, shall have happened
and be continuing; and (iii) the Company delivers an Officers' Certificate and
an Opinion of Counsel to the Trustee stating that all conditions precedent in
the Indenture relating to the transaction have been complied with. Upon the
assumption by the successor Person of the Company's obligations under the
Indenture and the Debt Securities issued thereunder, and the satisfaction of any
other condition precedent provided for in such Indenture, the successor Person
will succeed to and be substituted for the Company under such Indenture.
MODIFICATION AND WAIVER
The Indenture provides that modifications and amendments thereof may be made
by the Company and the Trustee with the consent of the Holders of not less than
a majority in aggregate principal amount of the Outstanding Debt Securities of
each series affected thereby and 66 2/3% in aggregate principal amount of the
Outstanding Debt Securities of all series affected thereby; provided, however,
that no such modification or amendment may, without the consent of the Holder of
each Outstanding Debt Security affected thereby, (a) change the Stated Maturity
of the principal of, or any installment of principal of or interest on, any Debt
Security; (b) reduce the principal amount of, or any premium or interest on, any
Debt Security; (c) reduce the amount of principal of an Original Issue Discount
Security payable upon acceleration of the Maturity thereof; (d) change the Place
of Payment of, currency of payment of principal of, or premium, if any, or
interest on, any Debt Security; (e) impair the right to institute suit for the
enforcement of any payment on or with respect to any Debt Security after the
Stated Maturity (or, in the case of redemption, on or after the Redemption
Date); or (f) reduce the percentage in principal amount of Outstanding Debt
Securities of any series, the consent of the Holders of which is required for
modification or amendment of the Indenture, for waiver of compliance with
certain provisions of the Indenture or for waiver of certain defaults.
Notwithstanding the foregoing, under certain limited circumstances and only upon
the fulfillment of certain conditions, modifications and amendments of the
Indenture may be made by the Company and the Trustee without the consent of any
Holders of the Debt Securities issued thereunder.
The Holders of not less than a majority in aggregate principal amount of the
Outstanding Debt Securities of any series may waive any past default under the
Indenture with respect to that series except a default in the payment of
principal of, or any premium or interest on, any Debt Security of such series or
in respect of a covenant or provision under the Indenture which cannot be
modified or amended without the consent of the Holder of each Outstanding Debt
Security of such series affected thereby.
EVENTS OF DEFAULT
The following will be Events of Default under the Indenture with respect to
Debt Securities of any series issued thereunder (unless inapplicable to the
particular series, specifically modified or deleted as a term of such series or
otherwise modified or deleted in an indenture supplemental to the Indenture):
(a) failure to pay any interest on any Debt Security of that series when due,
and such failure has continued for 30 days; (b) failure to pay principal of or
premium, if any, on any Debt Security of that series when due; (c) failure to
deposit any sinking fund payment in respect of any Debt Security of that series
when due, where such failure has continued for 30 days; (d) failure to perform
any other covenant of the Company in the Indenture (other than a covenant
included in the Indenture solely for the benefit of a series of Debt Securities
other than that series), and such failure has continued for 90 days after
written notice as provided in the Indenture; (e) certain events of bankruptcy,
insolvency or reorganization relating to the Company; and (f) any other Event of
Default provided with respect to Debt Securities of that series.
If an Event of Default with respect to Debt Securities of any series at the
time Outstanding occurs and is continuing, then the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Debt Securities of that
series may, by a notice in writing to the Company (and to the Trustee if given
by Holders), declare to be immediately due and payable the principal amount (or,
if any Debt Securities of
9
<PAGE>
that series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of the series) of all Debt
Securities of that series. At any time after such a declaration of acceleration
with respect to Debt Securities of any series has been made and before a
judgment or decree for payment of the money due has been obtained by the
Trustee, the Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences, if (i)
the Company has paid or deposited with the Trustee a sum sufficient to pay all
overdue interest on the Debt Securities of such series, the principal of and any
premium on the Debt Securities of such series which have become due otherwise
than by such declaration of acceleration and interest thereon at the rate or
rates prescribed therefor in such Debt Securities, interest on overdue interest
at the rate or rates prescribed therefor in the Debt Securities of such series
(to the extent that payment of such interest is lawful), and all amounts due to
the Trustee under the Indenture, and (ii) all Events of Default with respect to
the Debt Securities of such series (other than the nonpayment of the principal
of the Debt Securities of such series which has become due solely by such
declaration of acceleration) have been cured or waived as provided in the
Indenture. Reference is made to the Prospectus Supplement relating to any series
of Debt Securities which are Original Issue Discount Securities for the
particular provisions relating to acceleration of a portion of the principal
amount of such Original Issue Discount Securities upon the occurrence of an
Event of Default and the continuation thereof.
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default occurs and is continuing, the Indenture
provides that the Trustee will be under no obligation to exercise any of its
rights or powers under the Indenture at the request or direction of any of the
Holders unless such Holders shall have offered to the Trustee reasonable
security or indemnity. Subject to such provisions for security and
indemnification of the Trustee and certain other rights of the Trustee, the
Holders of a majority in principal amount of the Outstanding Debt Securities of
any series have the right to direct the time, method and place of conducting any
proceedings for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to the Debt Securities of that
series.
No Holder of any Debt Security of any series will have any right to
institute any proceeding with respect to the Indenture under which such Debt
Security was issued or for any remedy thereunder unless such Holder has
previously given to the Trustee written notice of a continuing Event of Default
with respect to the Debt Securities of that series and unless the Holders of at
least 25% in principal amount of the Outstanding Debt Securities of that series
have made such written request, and offered reasonable indemnity, to the Trustee
to institute such proceeding as trustee under the Indenture, and the Trustee has
not received from the Holders of a majority in principal amount of the
Outstanding Debt Securities of that series a direction inconsistent with such
request and has failed to institute such proceeding within 60 days after receipt
of such notice and offer of indemnity. Notwithstanding the foregoing, the Holder
of any Debt Security will have an absolute and unconditional right to receive
payment of the principal of and any premium and, subject to certain limitations
specified in the Indenture, interest on such Debt Security on the Stated
Maturity thereof (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment.
The Company is required to furnish annually to the Trustee a statement
signed on behalf of the Company by certain officers of the Company to the effect
that to the best of their knowledge the Company is not in default in the
performance and observance of any terms, provisions or conditions of the
Indenture or, if there has been such a default, specifying each such default and
the status thereof.
SATISFACTION AND DISCHARGE
The Indenture provides that when, among other things, the Company deposits
or causes to be deposited with the Trustee, in trust, an amount in money or the
equivalent in U.S. Government Obligations (as defined) (or a combination
thereof) sufficient to pay and discharge the entire indebtedness on the Debt
Securities not previously delivered to the Trustee for cancellation, for the
principal (and premium, if any)
10
<PAGE>
and interest to the date of the deposit or to the Stated Maturity or earlier
Redemption Date for Debt Securities that have been, or by an irrevocable
instruction delivered by the Company to the Trustee will be, called for
redemption, as the case may be, then the Indenture will cease to be of further
effect (except as to the Company's obligations to compensate, reimburse and
indemnify the Trustee pursuant to the Indenture and certain other obligations),
and the Company will be deemed to have satisfied and discharged the Indenture.
DEFEASANCE
Unless otherwise provided in the Prospectus Supplement for a series of Debt
Securities, the Company may cause itself (subject to the terms of the Indenture)
to be discharged from any and all obligations with respect to any Debt
Securities or series of Debt Securities (except for certain obligations to
register the transfer or exchange of such Debt Securities, to replace such Debt
Securities if stolen, lost or mutilated, to maintain paying agencies and to hold
money for payment in trust) on and after the date the conditions set forth in
the Indenture are satisfied. Such conditions include the deposit with the
Trustee, in trust for such purpose, of money and/or U.S. Government Obligations
(as such term is defined in the Indenture), which through the scheduled payment
of principal and interest in respect thereof in accordance with their terms will
provide money in an amount sufficient to pay the principal of and any premium
and interest on such Debt Securities on the Stated Maturity of such payments or
upon redemption, as the case may be, in accordance with the terms of the
Indenture and such Debt Securities.
Under current Federal income tax law, the Defeasance contemplated in the
preceding paragraphs would be treated as a taxable exchange of the relevant Debt
Securities in which Holders of Debt Securities would recognize gain or loss. In
addition, thereafter, the amount, timing and character of amounts that Holders
would be required to include in income might be different from that which would
be includable in the absence of such Defeasance. Prospective investors are urged
to consult their own tax advisors as to the specific consequences of a
Defeasance, including the applicability and effect of tax laws other than the
Federal income tax law.
CONCERNING THE TRUSTEE
The Trustee is The Bank of New York, which maintains banking relationships
with the Company in the ordinary course of business and serves as trustee under
other indentures of the Company and certain of its affiliates.
GOVERNING LAW
The Indenture and the Debt Securities shall be governed by and construed in
accordance with the laws of the State of New York.
11
<PAGE>
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities (i) directly to purchasers, (ii) to
or through underwriters or dealers, (iii) through agents, or (iv) through a
combination of such methods. A Prospectus Supplement with respect to a
particular series of Debt Securities will set forth the terms of the offering of
such Debt Securities, including the following: name or names of any
underwriters, dealers or agents; the purchase price of such Debt Securities and
the proceeds to the Company from such sale; underwriting discounts and
commissions; and any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers.
If underwriters are used in the sale, the Debt Securities will be acquired
by the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The Debt
Securities may be offered to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one or more
firms acting as underwriters. In connection with the sale of Debt Securities,
underwriters may receive compensation from the Company in the form of
underwriting discounts or commissions and may also receive commissions from
purchasers of the Debt Securities for whom they may act as agent. Underwriters
may sell the Debt Securities to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from the
underwriters and/or commissions from the purchasers for whom they may act as
agents. Unless otherwise set forth in the Prospectus Supplement relating
thereto, the obligations of any underwriters to purchase the Debt Securities
will be subject to certain conditions precedent, and the underwriters will be
obligated to purchase all such Debt Securities if any are purchased.
If dealers are utilized in the sale of the Debt Securities, the Company will
sell such Debt Securities to the dealers as principals. The dealer may then
resell such Debt Securities to the public at varying prices to be determined by
such dealer at the time of resale. Any such dealer, who may be deemed to be an
underwriter as that term is defined in the Securities Act, involved in the offer
or sale of Debt Securities will be named, and any commissions or discounts
granted by the Company to such dealer set forth, in the applicable Prospectus
Supplement.
If agents are used in the sales of the Debt Securities, offers to purchase
the Debt Securities may be solicited by such agents from time to time. Any such
agent, who may be deemed to be an underwriter as that term is defined in the
Securities Act, involved in the offer or sale of the Debt Securities will be
named, and any commissions payable by the Company to such agent set forth, in
the applicable Prospectus Supplement. Any such agent will be acting on a
reasonable effort basis for the period of its appointment or, if indicated in
the applicable Prospectus Supplement, on a firm commitment basis.
Debt Securities also may be sold directly by the Company to institutional
investors or others who may be deemed to be underwriters within the meaning of
the Securities Act with respect to any resale thereof. The terms of any such
sales will be described in the Prospectus Supplement relating thereto.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters or dealers to solicit offers from certain types of
institutions to purchase Debt Securities from the Company at the public offering
price set forth in the Prospectus Supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the future.
Such contracts will be subject only to those conditions set forth in the
Prospectus Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such contracts.
Agents, dealers and underwriters may be entitled under agreements with the
Company to indemnification against certain civil liabilities, including
liabilities under the Securities Act, or to contribution with respect to
payments which such agents, dealers or underwriters may be required to make in
respect thereof. Agents, dealers and underwriters may engage in transactions
with, or perform services for, the Company or its subsidiaries for customary
compensation.
12
<PAGE>
Debt Securities may also be offered and sold, if so indicated in the
applicable Prospectus Supplement, in connection with a remarketing upon their
purchase, in accordance with their terms, by one or more firms ("remarketing
firms"), acting as principals for their own accounts or as agents for the
Company. Any remarketing firm will be identified and the terms of its agreement,
if any, with the Company will be described in the applicable Prospectus
Supplement. Remarketing firms may be entitled to indemnification by the Company
against certain liabilities, including liabilities under the Securities Act, and
may engage in transactions with or perform services for the Company or its
subsidiaries for customary compensation.
Any Debt Securities will be a new issue of securities with no established
trading market. No assurance can be given that there will be a market for the
Debt Securities of any particular series, or that if such market does develop,
that it will continue to provide holders of such Debt Securities with liquidity
for such investment or will continue for the duration such Debt Securities are
outstanding.
The anticipated date of delivery of the Debt Securities will be set forth in
the Prospectus Supplement relating to each offering.
LEGAL MATTERS
The validity of the Debt Securities will be passed upon for the Company by
Palmer & Dodge LLP, Boston, Massachusetts. Certain legal matters in connection
with the validity of Debt Securities may be passed upon for any underwriters,
agents or dealers by Ropes & Gray, Boston, Massachusetts.
EXPERTS
The consolidated financial statements as of December 31, 1997 and 1996 and
for each of the three years in the period ended December 31, 1997 included in
the Company's Annual Report on Form 10-K for the year ended December 31, 1997
and incorporated by reference in this Prospectus, have been incorporated herein
in reliance on the report of Coopers & Lybrand L.L.P., independent accountants,
given on the authority of that firm as experts in accounting and auditing.
13
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Expenses in connection with the offering of the Debt Securities will be
borne by the registrant and are estimated as follows:
<TABLE>
<S> <C>
SEC registration fee.............................................. $ 59,000
Rating agency fees................................................ $ 95,000
Trustee's fees and expenses....................................... $ 17,000
Accountant's fees and expenses.................................... $ 21,000
Legal fees and expenses........................................... $ 100,000
Printing costs.................................................... $ 25,000
Miscellaneous expenses............................................ $ 23,000
---------
Total......................................................... $ 340,000
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The registrant's Bylaws provide that any person who is or was a party to any
threatened, pending or completed proceeding, because such person is or was a
director or officer of the registrant or is or was serving at the request of the
registrant as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, shall be indemnified by the registrant to
the full extent permitted by law against expenses and liabilities. The
indemnification provided for in the registrant's Bylaws is expressly not
exclusive of all other rights to which such person may be entitled as a matter
of law.
Section 607.0850 of the Florida Business Corporation Act grants the
registrant the power to indemnify each person who was or is a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against liability, expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with any such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in, or not opposed to, the best interests of the registrant, and with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful; provided, however, no indemnification shall be made in
connection with any proceeding brought by or in the right of the registrant
where the person involved is adjudged to be liable to the registrant, except to
the extent approved by a court.
The registrant maintains an insurance policy on behalf of its directors and
officers, covering certain liabilities that may be incurred by the directors and
officers when acting in their capacities as such.
If the Debt Securities are sold to or through underwriters or agents, the
agreement with such underwriters or agents will provide that such underwriters
or agents will indemnify the registrant's directors and officers against certain
liabilities, including certain liabilities under the Securities Act.
ITEM 16. EXHIBITS
See Exhibit Index immediately following the signature page hereof.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
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<PAGE>
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the Registration Statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any
financial statements required by Rule 3-19 of Regulation S-X at the start of
any delayed offering or throughout a continuous offering. Financial
statements and information otherwise required by Section 10(a)(3) of the
Securities Act need not be furnished, provided, that the registrant includes
in the prospectus, by means of a post-effective amendment, financial
statements required pursuant to this paragraph (a)(4) and other information
necessary to ensure that all other information in the prospectus is at least
as current as the date of those financial statements. Notwithstanding the
foregoing, with respect to registration statements on Form F-3, a
post-effective amendment need not be filed to include financial statements
and information required by Section 10(a)(3) of the Securities Act or Rule
3-19 of Regulation S-X if such financial statements and information are
contained in periodic reports filed with or furnished to the Commission by
the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the Form F-3.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of any employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
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<PAGE>
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions referred to in Item 15 hereof, or
otherwise, the registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Tampa, State of Florida, on August 24, 1998.
TECO ENERGY, INC.
By: /s/ G.L. GILLETTE
-----------------------------------------
G.L. Gillette
VICE PRESIDENT--FINANCE AND
CHIEF FINANCIAL OFFICER
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities indicated as of August 24, 1998.
SIGNATURE TITLE
- ------------------------------ ---------------------------
Chairman of the Board,
/s/ G.F. ANDERSON* President and Chief
- ------------------------------ Executive Officer
G.F. Anderson (Principal Executive
Officer)
Vice President--Finance and
/s/ G.L. GILLETTE Chief Financial Officer
- ------------------------------ (Principal Financial
G.L. Gillette Officer)
/s/ W.L. GRIFFIN* Vice President--Controller
- ------------------------------ (Principal Accounting
W.L. Griffin Officer)
/s/ C.D. AUSLEY* Director
- ------------------------------
C.D. Ausley
/s/ S.L. BALDWIN* Director
- ------------------------------
S.L. Baldwin
/s/ H.L. CULBREATH* Director
- ------------------------------
H.L. Culbreath
/s/ J.L. FERMAN, JR.* Director
- ------------------------------
J.L. Ferman, Jr.
II-4
<PAGE>
<TABLE>
<C> <S> <C>
/s/ E.L. FLOM* Director
- ------------------------------
E.L. Flom
/s/ H.R. GUILD, JR.* Director
- ------------------------------
H.R. Guild, Jr.
/s/ T.L. RANKIN* Director
- ------------------------------
T.L. Rankin
/s/ R.L. RYAN* Director
- ------------------------------
R.L. Ryan
/s/ W.P. SOVEY* Director
- ------------------------------
W.P. Sovey
/s/ J.T. TOUCHTON* Director
- ------------------------------
J.T. Touchton
/s/ J.A. URQUHART* Director
- ------------------------------
J.A. Urquhart
/s/ J.O. WELCH, JR.* Director
- ------------------------------
J.O. Welch, Jr.
</TABLE>
<TABLE>
<S> <C> <C>
*By: /s/ G.L. GILLETTE
------------------------------------
ATTORNEY-IN-FACT
</TABLE>
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<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ----------- ---------------------------------------------------------------------------------------------------------
<S> <C>
1 Form of Agency Agreement.
4 Form of Indenture to be dated as of August 17, 1998 between TECO Energy, Inc. and The Bank of New York,
as trustee.
5 Opinion of Palmer & Dodge LLP regarding the validity of the Debt Securities.
12 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of PricewaterhouseCoopers LLP (as successors to Coopers & Lybrand L.L.P.).
23.2 Consent of Palmer & Dodge LLP (included in Exhibit 5).
24 Power of Attorney (included on signature page of the initial filing of this Registration Statement).
25 Statement of Eligibility of Trustee on Form T-1 (previously filed as the same numbered exhibit to the
initial filing of this Registration Statement).
</TABLE>
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<PAGE>
TECO ENERGY, INC.
$200,000,000
Medium-Term Note Program
Due from 9 Months to 40 Years from Date of Issue
AGENCY AGREEMENT
[August ], 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
<PAGE>
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
2
<PAGE>
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 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;
(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 subsidiaries is duly qualified as a
foreign corporation in all jurisdictions where it owns or leases
substantial real properties or in
3
<PAGE>
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
4
<PAGE>
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
5
<PAGE>
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:
<TABLE>
<CAPTION>
Commission
Term Rate
---- ----------
<S> <C>
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 .700%
From 20 years to less than 30 years .750%
30 years and beyond Subject to
negotiation
</TABLE>
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 thereofby such Agent. Each Purchase Agreement will
6
<PAGE>
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.
7
<PAGE>
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
8
<PAGE>
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
9
<PAGE>
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
10
<PAGE>
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 specified:
(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
11
<PAGE>
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;
12
<PAGE>
(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;
13
<PAGE>
(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
14
<PAGE>
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)
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;
(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;
and
(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
15
<PAGE>
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
16
<PAGE>
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.
17
<PAGE>
(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
18
<PAGE>
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 alleged
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
19
<PAGE>
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
Telephone: (212) 761-4000
Facsimile: (212) 761-0780
20
<PAGE>
Attention: Manager - Continuously Offered Products
and to:
Citicorp Securities, Inc.
399 Park Avenue
5th Floor, Zone 6
New York, New York 10043
Facsimile: (212) 793-1717
Attention: Pushkar K. Butani
with a copy to:
Morgan Stanley & Co. Incorporated
1585 Broadway, 34th Floor
New York, New York 10036
Attention: Peter Cooper, Investment Banking Information Center
Telephone: (212) 761-8385
Telecopier: (212) 761-0260
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
21
<PAGE>
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.
22
<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:
------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.
MORGAN STANLEY & CO. INCORPORATED
By:
------------------------------
Name:
Title:
CITICORP SECURITIES, INC.
By:
------------------------------
Name:
Title:
<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 August __, 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:
<TABLE>
<CAPTION>
Principal Amount
Name of Notes
---- ----------------
<S> <C>
Morgan Stanley & Co. Incorporated $
Citicorp Securities, Inc.
Total.......................... $
-------------
-------------
</TABLE>
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
1
<PAGE>
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:
----------.
2
<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:
3
<PAGE>
Exhibit 4
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
TECO ENERGY, INC.
Issuer
To
THE BANK OF NEW YORK
Trustee
---------------------
INDENTURE
Dated as of August 17, 1998
----------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
TECO ENERGY, INC.
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of August 17, 1998
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
ss. 310(a)(1) ................................... 609
(a)(2) ................................... 609
(a)(3) ................................... Not Applicable
(a)(4) ................................... Not Applicable
(b) ................................... 608, 610
ss.311(a) ................................... 613(a)
(b) ................................... 613(b)
(b)(2) ................................... 703(a)(2), 703(b)
ss.312(a) ................................... 701, 702(a)
(b) ................................... 702(b)
(c) ................................... 702(c)
ss.313(a) ................................... 703(a)
(b) ................................... 703(b)
(c) ................................... 703(a), 703(b)
(d) ................................... 703(c)
ss.314(a) ................................... 704
(b) ................................... Not Applicable
(c)(1) ................................... 102
(c)(2) ................................... 102
(c)(3) ................................... Not Applicable
(d) ................................... Not Applicable
(e) ................................... 102
ss.315(a) ................................... 601(a)
(b) ................................... 602, 703(a)(6)
(c) ................................... 601(b)
(d) ................................... 601(c)
(d)(1) ................................... 601(c)(1)
(d)(2) ................................... 601(c)(2)
(d)(3) ................................... 601(c)(3)
(e) ................................... 514
ss.316(a) ................................... 101
(a)(1)(A) ................................... 502, 512
(a)(1)(B) ................................... 513
(a)(2) ................................... Not Applicable
(b) ................................... 508
ss.317(a)(1) ................................... 503
(a)(2) ................................... 504
(b) ................................... 1003
ss.318(a) ................................... 107
</TABLE>
<PAGE>
TABLE OF CONTENTS
----------
Inserted for convenience only and
not as a part of the Indenture
<TABLE>
<CAPTION>
Page
ARTICLE ONE
Definitions and Other Provisions of General Application
<S> <C> <C>
Section 101. Definitions........................................ 1
Section 102. Compliance Certificates and Opinions............... 6
Section 103. Form of Documents Delivered to Trustee............. 7
Section 104. Acts of Holders.................................... 8
Section 105. Notices, Etc., to Trustee or Company............... 8
Section 106. Notice to Holders; Waiver.......................... 9
Section 107. Conflict with Trust Indenture Act.................. 9
Section 108. Effect of Headings and Table of Contents........... 9
Section 109. Successors and Assigns............................. 9
Section 110. Separability Clause................................ 9
Section 111. Benefits of Indenture.............................. 10
Section 112. Governing Law...................................... 10
Section 113. Legal Holidays..................................... 10
</TABLE>
<TABLE>
<CAPTION>
ARTICLE TWO
Security Forms
<S> <C> <C>
Section 201. Forms Generally.................................... 10
Section 202. Form of Face of Security........................... 11
Section 203. Form of Reverse of Security........................ 12
Section 204. Additional Provisions Required in Global Security.. 16
Section 205. Form of Trustee's Certificate of Authentication.... 16
</TABLE>
<TABLE>
<CAPTION>
ARTICLE THREE
The Securities
<S> <C> <C>
Section 301. Amount Unlimited; Issuable in Series............... 17
Section 302. Denominations...................................... 19
Section 303. Execution, Authentication, Delivery and Dating..... 19
Section 304. Temporary Securities............................... 21
Section 305. Registration, Registration of Transfer and Exchange 21
Section 306. Mutilated, Destroyed, Lost and Stolen Securities... 22
Section 307. Payment of Interest; Interest Rights Reserved...... 23
Section 308. Persons Deemed Owners.............................. 24
Section 309. Cancellation....................................... 24
Section 310. Computation of Interest............................ 25
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ARTICLE FOUR
Satisfaction and Discharge
<S> <C> <C>
Section 401. Satisfaction and Discharge of Indenture............ 25
Section 402. Application of Trust Money......................... 26
</TABLE>
<TABLE>
<CAPTION>
ARTICLE FIVE
Remedies
<S> <C> <C>
Section 501. Events of Default.................................. 26
Section 502. Acceleration of Maturity; Rescission and Annulment. 28
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee ............................ 29
Section 504. Trustee May File Proofs of Claim................... 30
Section 505. Trustee May Enforce Claims Without Possession of
Securities ........................................ 31
Section 506. Application of Money Collected..................... 31
Section 507. Limitation on Suits................................ 31
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.................... 32
Section 509. Restoration of Rights and Remedies................. 32
Section 510. Rights and Remedies Cumulative..................... 32
Section 511. Delay or Omission Not Waiver....................... 32
Section 512. Control by Holders................................. 33
Section 513. Waiver of Past Defaults............................ 33
Section 514. Undertaking for Costs.............................. 34
Section 515. Waiver of Stay or Extension Laws................... 34
</TABLE>
<TABLE>
<CAPTION>
ARTICLE SIX
The Trustee
<S> <C> <C>
Section 601. Certain Duties and Responsibilities................ 35
Section 602. Notice of Defaults................................. 36
Section 603. Certain Rights of Trustee.......................... 36
Section 604. Not Responsible for Recitals or Issuance of
Securities 37
Section 605. May Hold Securities................................ 37
Section 606. Money Held in Trust................................ 37
Section 607. Compensation and Reimbursement..................... 38
Section 608. Disqualification; Conflicting Interests............ 38
Section 609. Corporate Trustee Required; Eligibility............ 38
Section 610. Resignation and Removal; Appointment of Successor.. 39
Section 611. Acceptance of Appointment by Successor............. 40
Section 612. Merger, Conversion, Consolidation or Succession
to Business ....................................... 41
Section 613. Preferential Collection of Claims.................. 41
Section 614. Appointment of Authenticating Agent................ 41
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
<S> <C> <C>
Section 701. Company to Furnish Trustee Names and Addresses of
Holders ........................................... 43
Section 702. Preservation of Information; Communications to
Holders ........................................... 43
Section 703. Reports by Trustee................................. 44
Section 704. Reports by Company................................. 44
</TABLE>
<TABLE>
<CAPTION>
ARTICLE EIGHT
Consolidation, Merger, Conveyance or Transfer
<S> <C> <C>
Section 801. Company May Consolidate, Etc., Only on Certain
Terms ............................................. 45
</TABLE>
<TABLE>
<CAPTION>
ARTICLE NINE
Supplemental Indentures
<S> <C> <C>
Section 901. Supplemental Indentures Without Consent of Holders. 46
Section 902. Supplemental Indentures with Consent of Holders.... 47
Section 903. Execution of Supplemental Indentures............... 48
Section 904. Effect of Supplemental Indentures.................. 48
Section 905. Conformity with Trust Indenture Act................ 48
Section 906. Reference in Securities to Supplemental Indentures. 48
</TABLE>
<TABLE>
<CAPTION>
ARTICLE TEN
Covenants
<S> <C> <C>
Section 1001. Payment of Principal, Premium and Interest......... 49
Section 1002. Maintenance of Office or Agency.................... 49
Section 1003. Money for Securities Payments to Be Held in Trust.. 49
Section 1004. Statement by Officers as to Default................ 51
</TABLE>
<TABLE>
<CAPTION>
ARTICLE ELEVEN
Redemption of Securities
<S> <C> <C>
Section 1101. Applicability of Article........................... 51
Section 1102. Election to Redeem; Notice to Trustee.............. 51
Section 1103. Selection by Trustee of Securities to Be Redeemed.. 51
Section 1104. Notice of Redemption............................... 52
Section 1105. Deposit of Redemption Price........................ 52
Section 1106. Securities Payable on Redemption Date.............. 53
Section 1107. Securities Redeemed in Part........................ 53
</TABLE>
<TABLE>
<CAPTION>
ARTICLE TWELVE
Sinking Funds
<S> <C> <C>
Section 1201. Applicability of Article........................... 53
Section 1202. Satisfaction of Sinking Fund Payments with
Securities ........................................ 54
</TABLE>
iii
<PAGE>
Section 1203. Redemption of Securities for Sinking Fund.......... 54
<TABLE>
<CAPTION>
ARTICLE THIRTEEN
Defeasance
<S> <C> <C>
Section 1301. Applicability of Article; Company's Option to
Effect Defeasance ................................. 54
Section 1302. Defeasance and Discharge........................... 55
Section 1303. Conditions to Defeasance........................... 55
Section 1304. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous
Provisions......................................... 57
Section 1305. Reinstatement...................................... 57
</TABLE>
ACKNOWLEDGEMENTS
iv
<PAGE>
INDENTURE, dated as of August 17, 1998, between TECO ENERGY, INC., a
corporation duly organized and existing under the laws of the State of
Florida (herein called the "Company"), having its principal executive offices
at Teco Plaza, 702 N. Franklin Street, Tampa, Florida 33602 and THE BANK OF
NEW YORK, as Trustee (herein called the "Trustee"), having its principal
corporate trust office at 101 Barclay Street, 21st Floor, New York, NY 10286
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as provided in this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and, except as otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally accepted at the
date of such computation; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
<PAGE>
Certain terms, used principally in Article Six, are defined in that
Article.
"Act," when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly Controlling or Controlled by or under direct or indirect common
Control with such specified Person.
"Authenticating Agent" means any Person authorized by the Trustee to act
on behalf of the Trustee to authenticate Securities.
"Board of Directors," when used with reference to the Company, means the
board of directors, or any duly authorized committee of the board of directors,
of the Company.
"Board Resolution," when used with reference to the Company, means a copy
of a resolution certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in the State in which the
principal place of business of the Company or the principal corporate trust
office of the Trustee or the office of the Trustee at which the Indenture is
administered are located are authorized or obligated by law or executive order
to close.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor Corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its President, its Treasurer or an
Assistant Treasurer and delivered to the Trustee.
The term "Control" means the power to direct the management and policies
of a Person, directly or through one or more intermediaries, whether through the
ownership of voting securities, by contract or otherwise, and the terms
"Controlling" and "Controlled" shall have meanings correlative to the foregoing.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office, as at the date of this Indenture, is located at
101 Barclay Street, 21st Floor, New York, NY 10286; Attn: Corporate Trust;
except that notices to the Trustee under the Indenture shall be delivered to
Towermarc, 2nd Floor, 10161 Centurion Parkway, Jacksonville, Florida 32256;
Attn: Corporate Trust.
2
<PAGE>
The term "Counsel" shall mean legal counsel who may be either an employee
or officer of or counsel to the Company.
The term "Corporation" includes corporations, partnerships, joint
ventures, associations, limited liability companies, joint-stock
companies and business trusts.
The term "Defeasance" has the meaning assigned to such term by Section
1302.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Company pursuant to Section 301.
"Event of Default" has the meaning specified in Section 501.
"Global Security" means a Security in the form prescribed in Section 204
evidencing all or part of a series of Securities, issued to the Depositary or
its nominee for such Series, and registered in the name of such Depositary or
nominee.
"Fiscal Year" means with respect to the Company the fiscal year ending
December 31 of each year or such other date as the Company may hereafter elect,
and with respect to any other Person the calendar year or other annual
accounting period of the Person in question.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"Interest," when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
3
<PAGE>
"Officers' Certificate" means a certificate of the Company signed by the
Chairman of the Board, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of Counsel, who may be
Counsel for the Company (including an employee or officer of the Company) and
who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money, U.S.
Government Obligations or both in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made and provided
further, in the case of payment by Defeasance under Section 1302, that all
conditions precedent to the application of such Section shall have been
satisfied; and
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, (ii) the principal amount of a Security
denominated in a foreign currency or currencies shall be the U.S. dollar
equivalent, determined on the date of original issuance of such Security, of the
principal amount (or, in the case of an Original Issue Discount Security, the
U.S. dollar equivalent on the date of original issuance of such Security of the
amount determined as provided in (i) above) of such Security, and (iii)
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
4
<PAGE>
direction, notice, consent or waiver, only Securities which the Trustee knows to
be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's independent right so to act with
respect to such Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, Corporation, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 301 or, if not so specified, the City of New York in the
State of New York.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, means any
officer of the Trustee charged with responsibility for the administration of the
Indenture and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Security" and "Securities" have the meaning stated in the first recital
of this Indenture and more particularly mean any Security or Securities
authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
5
<PAGE>
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a Corporation more than 50% of the outstanding Voting
Stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in effect
from time to time.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.
"U.S. Government Obligation" has the meaning set forth in Section 1303.
"Vice President," when used with respect to the Company means any vice
president, whether or not designated by a number or a word or words added before
or after the title "vice president."
"Voting Stock" means stock which ordinarily has voting power for the
election of directors, whether at all times or only so long as no senior class
of stock has such voting power by reason of any contingency, but shall not
include securities convertible into such Voting Stock.
The term "Wholly-Owned Subsidiary" shall mean at any given time any
Corporation all of the outstanding securities of which having ordinary voting
power (other than securities having such power only by reason of the happening
of a contingency), except for directors' qualifying shares, shall at such time
be owned by the Company or by one or more Wholly- Owned Subsidiaries or by the
Company and one or more Wholly-Owned Subsidiaries.
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture that requires that the Company comply with any
conditions precedent before the Trustee shall take such action, the Company
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such Counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by
6
<PAGE>
any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certinicate or opinion of any officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, Counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company unless such Counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
7
<PAGE>
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an
agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject
to Section 601) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other manner
which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee, the Company in reliance thereon, whether or not notation of such
action is made upon such Security or such other Security.
Section 105. Notices, Etc., to Trustee or Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at Towermarc Plaza, 2nd Floor, 10161 Centurion Parkway,
Jacksonville, FL 32256, or at any other address that the Trustee previously
furnished in writing to the Person giving such notice, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-
8
<PAGE>
class postage prepaid, to the Company addressed to it at the address of its
office specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof that is required to be included in this Indenture by any of the
provisions of the Trust Indenture Act, such required provision shall control.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
9
<PAGE>
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
Section 113. Legal Holidays.
Except as otherwise provided for in the Securities of any Series, in any
case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day at any Place of Payment, then payment of
interest or principal (and premium, if any) need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity, provided that no
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of such
Securities. If the form of Securities of any series of such Securities is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in substantially the
form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
10
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Section 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
CUSIP Number
TECO ENERGY, INC.
% Due
No. .... [$].........
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
..............................................., or registered assigns, the
principal sum of .................. ................... Dollars on
............................ ........................... [If the Security is to
bear interest prior to Maturity, insert -- , and to pay interest thereon from
............. or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on ............ and
............ in each year, commencing ........., at the rate of ....% per annum,
until the principal hereof is paid or made available for payment [If applicable,
insert -- , and (to the extent that the payment of such interest shall be
legally enforceable) at the rate of ....% per annum on any overdue principal and
premium and on any overdue installment of interest] -- or if the Security is to
bear interest at a rate subject to adjustment from time to time pursuant to a
market index, insert any provisions relating to the index mechanism. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the ....... or ....... (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of ....% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of ......% per annum (to the extent that the
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payment of such interest shall be legally enforceable), which shall accrue from
the date of such demand for payment to the date payment of such interest has
been made or duly provided for, and such interest shall also be payable on
demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in ............, [if
applicable, insert -- 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] [if applicable, insert -- ; provided, however, that at the option of the
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register
or, at the option of the Holder hereof, to such other place in the United States
of America as the Holder hereof shall designate to the Trustee in writing or, at
the option of the Holder hereof, by wire transfer in immediately available funds
if such Holder owns Securities of the same series as this Security issued
pursuant to the Indenture which pay interest on the same Interest Payment Date
and which are in an aggregate principal amount of $5,000,000 or more, provided
that the Holder shall bear any and all expenses of any such wire transfer] and
provided further that proper written wiring instructions shall have been
received by the Trustee on or prior to the Regular Record Date. [If applicable,
insert any foreign currency-related provisions.]
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, 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 Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
TECO ENERGY, INC.
By
---------------------------------
Title:
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated
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as of [..........], 1998 (herein called the "Indenture"), among the Company and
The Bank of New York, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto 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 Securities are, and are to be, authenticated and delivered. This
Security is one of the securities of the series designated on the face hereof [,
limited in aggregate principal amount to $...........].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on ........... in any year commencing with the year ...... and ending with
the year ...... through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [on
or after .........., 19..], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [on or before ..............., __%, and if
redeemed] during the 12-month period beginning ............. of the years
indicated,
Redemption Redemption
Year Price Year Price
- ---- ----- ---- -----
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Regular Record Dates referred to on the face hereof, all as provided in
the Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' nor more than 60 days' notice by mail,
(1) on ............ in any year commencing with the year .... and ending with
the year .... through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after ............], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning ............ of the years indicated,
Redemption Price
For Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ---- ------------ -------------------
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and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Regular Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
............., redeem any Securities of this series as contemplated by [Clause
(2) of] the preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Company (calculated in accordance with
generally accepted financial practice) of less than .....% per annum.]
[The sinking fund for this series provides for the redemption on
............ in each year beginning with the year ....... and ending with the
year ...... of [not less than $.......... [("mandatory sinking fund") and not
more than $.........] aggregate principal amount of Securities of this series.
[The Company may, at its option, in each of the years commencing with the year
....... make an additional payment into the sinking fund not exceeding the
mandatory sinking fund payment, to be likewise applied to the redemption of
Securities at the principal amount without premium, with interest accrued
thereon to the date fixed for redemption.] [Securities of this series acquired
or redeemed by the Company otherwise than through [mandatory] sinking fund
payments may be credited against subsequent [mandatory] sinking fund payments
otherwise required to be made -- in the inverse order in which they become due.]
In the event of redemption of this Security in part only, a new Security
or Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
[The Indenture contains provisions for Defeasance at any time of the
entire indebtedness on this Security upon compliance by the Company with certain
conditions set forth therein, which provisions apply to this Security.]
[If the Security is not an Original Issue Discount Security, -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, -- If an Event of
Default with respect to Securities of this series shall occur and be continuing,
an amount of principal of the Securities of this series may be declared due and
payable in the manner and with the effect provided in the Indenture. Such amount
shall be equal to -- insert formula for determining the amount. Upon payment (i)
of the amount of principal so declared due and payable and (ii) of interest on
any overdue principal and overdue interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Company's
obligations in
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<PAGE>
respect of the payment of the principal of and interest, if any, on the
Securities of this series shall terminate.]
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 Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security 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 Security.
No reference herein to the Indenture and no provision of this Security 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 Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Security 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 Security 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 Securities 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 Securities of this series are issuable only in registered form without
coupons and, except for such Securities issued in book-entry form, only in
denominations of [$]....... and any integral multiple of [$]........ As provided
in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities 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 Security 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 Security is registered as the owner hereof for all
purposes, whether or not this Security be
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<PAGE>
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
This Security shall be governed by and construed in accordance with the
laws of The State of New York.
Section 204. Additional Provisions Required in Global Security.
Any Global Security issued hereunder shall, in addition to the provisions
contained in Sections 202 and 203, bear a legend in substantially the following
form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Security is exchangeable for
Securities 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."
Section 205. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated in or pursuant to
the within-mentioned Indenture and referred to therein.
The Bank of New York,
as Trustee
By Date:
------------------------------- --------
Authorized Signatory
or,
[Name of Authenticating Agent],
as Authenticating Agent
By Date:
------------------------------- --------
Authorized Signatory
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<PAGE>
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities that may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and (subject to Section 303)
set forth or determined as provided in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series,
(1) the title of the Securities of the series (which shall distinguish the
Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of the
series which may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to Section
304, 305, 306, 906 or 1107 and except for any Securities which, pursuant to
Section 303, are deemed never to have been authenticated and delivered
hereunder);
(3) the Person to whom any interest on a Security of the series shall be
payable, if other than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest;
(4) the date or dates on which the principal of the Securities of the
series is payable;
(5) the rate or rates (or method for establishing the rate or rates) at
which the Securities of the series shall bear interest, if any, the date or
dates from which such interest shall accrue, the Interest Payment Dates on which
such interest shall be payable and the Regular Record Date for the interest
payable on any Interest Payment Date (or method for establishing such date or
dates);
(6) the place or places where the principal of (and premium, if any) and
interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which Securities of
the series shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
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<PAGE>
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be issuable;
(10) if other than the full principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(11) if other than such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public or private
debts, the currency or currencies (including composite currencies) in which
payment of the principal of (and premium, if any) and/or interest on the
Securities of such series shall be payable;
(12) if the principal of (and premium, if any) and/or interest on the
Securities of such series are to be payable, at the election of the Company or
any Holder, in a currency or currencies (including composite currencies) other
than that in which the Securities are stated to be payable, the period or
periods within which, and the terms and conditions upon which, such election may
be made;
(13) if the amounts of payments of principal of (and premium, if any)
and/or interest on the Securities of such series may be determined with
reference to an index, the manner in which such amounts shall be determined;
(14) in the case of Securities of a series the terms of which are not
established pursuant to subsection (11), (12) or (13) above, the application, if
any, of Section 1302 to the Securities of such series; or, in the case of
Securities the terms of which are established pursuant to subsection (11), (12)
or (13) above, the adoption and applicability to such Securities of any terms
and conditions similar to those contained in Section 1302;
(15) whether the Securities of the series shall be issued in the form of a
temporary global Security representing all of the Securities of such series and
the terms for exchange of such temporary global Security for definitive
Securities of such series;
(16) whether the Securities of the series shall be issued in whole or in
part in the form of one or more Global Securities and, in such case, the
Depositary for such Global Security or Securities, which Depositary shall be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended; and
(17) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except
as to interest rates, method for determining interest rates, Interest Payment
Dates, Regular Record Dates, redemption terms, Stated Maturity, denomination,
date of authentication, currency, any index for determining amounts payable, and
except as may otherwise be provided in or pursuant to such Board Resolution and
set forth or determined as provided in such Officers' Certificate or in any such
indenture supplemental hereto.
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<PAGE>
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 302. Denominations.
The Securities of each series shall be issuable in registered form without
coupons in such denominations as shall be specified as contemplated by Section
301. In the absence of any such provisions with respect to the Securities of any
series, the Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President or one of its Vice Presidents. The signature of any
of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and make available for delivery such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon:
(a) a copy of the resolution or resolutions of the Board of
Directors in or pursuant to which the terms and form of the Securities
were established, certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of Directors and to be
in full force and effect as of the date of such certificate, and if the
terms and form of such Securities are established by an Officers'
Certificate pursuant to general authorization of the Board of Directors,
such Officers' Certificate;
(b) an executed supplemental indenture, if any;
(c) an Officers' Certificate and Opinion of Counsel delivered in
accordance with Section 102; and
(d) an Opinion of Counsel which shall state:
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<PAGE>
(1) if the form of any of such Securities has been established
by or pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(2) if the terms of any of such Securities have been
established by or pursuant to Board Resolution as permitted by Section
301, that such terms have been established in conformity with the
provisions of this Indenture; and
(3) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting the enforcement of creditors' rights and to
general equity principles.
Notwithstanding that such form or terms have been so established, the Trustee
shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture would adversely affect the Trustee's own
rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner that is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the time of authentication upon original issuance of
the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
20
<PAGE>
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order from the Company, the Trustee shall
authenticate and make available for delivery, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute and the Trustee
shall authenticate and make available for delivery in exchange therefor a like
principal amount of definitive Securities of the same series and of like tenor,
of authorized denominations. Until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. Unless the Company
has appointed an agent other than the Trustee as "Security Registrar", the
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series
at the office or agency in a Place of Payment for that series, the Company shall
execute, and the Trustee shall authenticate and make available for delivery, in
the name of the designated transferee or transferees, one or more new Securities
of the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series of any authorized denominations and of a
like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, the Securities which the Holder
making the exchange is entitled to receive.
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<PAGE>
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing, any Global Security shall be exchangeable
pursuant to this Section 305 for Securities registered in the names of Persons
other than the Depositary for such Security or its nominee only if (i) such
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or if at any time such Depositary ceases to
be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, at a time when such Depository is requested to be so registered in
order to act as Depositary, (ii) the Company executes and delivers to the
Trustee a Company Order that such Global Security shall be so exchangeable or
(iii) there shall have occurred and be continuing an Event of Default with
respect to the Securities. Any Global Security that is exchangeable pursuant to
the preceding sentence shall be exchangeable for Securities registered in such
names as such Depositary shall direct.
Notwithstanding any other provision in this Indenture, a Global Security
may not be transferred except as a whole by the Depositary with respect to such
Global Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and make available for delivery in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
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<PAGE>
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of any of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a bona fide purchaser,
the Company shall execute and upon its request the Trustee shall authenticate
and make available for delivery, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Reserved.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
entitled to such interest by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such
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series and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a special record date (the "Special
Record Date") for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at his address as it appears in the Security Register,
not less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, that were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company may treat the Person in whose
name such Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium, if any) and (subject to
Section 307) interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any
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Securities previously authenticated hereunder which the Company has not issued
and sold and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities held by the Trustee shall be
returned to the Company.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, on the demand of and
at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such trust,
as provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) the Company has deposited or caused to be deposited with
the Trustee as trust funds in trust for the purpose (A) money in an
amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants or a nationally
recognized investment banking firm acceptable to the Company
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest to
the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or earlier
Redemption Date (in the case of Securities that have been, or by an
irrevocable instruction delivered by the Company to the Trustee
will be, called for redemption), as the case may be;
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(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to provisions of the last paragraph of Section 1003, all money and
U.S. Government Obligations deposited with the Trustee pursuant to Sections 401
or 1302 and all money received by the Trustee in respect of U.S. Government
Obligations deposited with the Trustee pursuant to Sections 401 or 1302, shall
be held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for which payment such money has been deposited with or
received by the Trustee as contemplated by Section 401 and Section 1302.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default," wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on)
any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by
the terms of a Security of that series and continuance of such default for a
period of 30 days; or
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(4) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely for the
benefit of series of Securities other than that series), and continuance of such
default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in an involuntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State law, or
the consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any substantial part of
its property, or the making by the Company of an assignment for the benefit of
creditors, or the admission by the Company in writing of its inability to pay
its debts generally as they become due, or the taking of corporate action by the
Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities of that
series.
Subject to the provisions of Section 601 hereof, the Trustee shall not be deemed
to have knowledge of an Event of Default hereunder (except for those described
in paragraphs (1) through (3) above) unless a Responsible Officer has received
written notice thereof.
Upon receipt by the Trustee of any Notice of Default pursuant to this
Section 501 with respect to Securities of a series all or part of which is
represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join in
such Notice of Default, which record date shall be at the close of business on
the day the Trustee receives such Notice of Default. The Holders as of such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to join in such Notice of Default,
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whether or not such Holders remain Holders after such record date; provided,
that unless holders of at least 25% in principal amount of the Outstanding
Securities of such series, or their proxies, shall have joined in such Notice of
Default prior to the day which is 90 days after such record date, such Notice of
Default shall automatically and without further action by any Holder be canceled
and of no further effect. Nothing in this paragraph shall prevent a Holder, or a
proxy of a Holder, from giving, after expiration of such 90-day period, a new
Notice of Default identical to a Notice of Default which has been cancelled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 501.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(5) or 501(6)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of Default
specified in Section 501(5) or 501(6) with respect to Securities of any series
at the time Outstanding occurs, the principal amount of all the Securities of
that series (of, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) shall automatically, and without any declaration
or other action on the part of the Trustee or any Holder, become immediately due
and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed therefor
in such Securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor in such
Securities, and
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(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and Counsel;
and
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series which have
become due solely by such declaration of acceleration, have been cured or waived
as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, with respect to Securities of
a series all or part of which is represented by a Global Security, a record date
shall be established for determining Holders of Outstanding Securities of such
series entitled to join in such notice, which record date shall be at the close
of business on the day the Trustee receives such notice. The Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to join in such notice, whether or not such Holders remain Holders
after such record date; provided, that unless such declaration of acceleration,
or rescission and annulment, as the case may be, shall have become effective by
virtue of the requisite percentage having joined in such notice prior to the day
which is 90 days after such record date, such notice of declaration of
acceleration, or rescission and annulment, as the case may be, shall
automatically and without further action by any Holder be cancelled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of
a Holder, from giving, after expiration of such 90-day period, a new written
notice of declaration of acceleration, or rescission and annulment thereof, as
the case may be, that is identical to a written notice which has been cancelled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 502.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a period of
30 days;
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof; or
(3) default is made in the deposit of any sinking fund payment, when and
as due by the terms of a Security of that series and such default continues for
a period of 30 days;
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue
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interest, at the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and Counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and Counsel) and of the Holders
allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and Counsel, and any other
amounts due the Trustee under Section 607.
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Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and Counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the
Securities in respect of which or for the benefit of which
such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and
payable on such Securities for principal (and premium, if
any) and interest, respectively.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
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(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 307)
interest on such Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
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No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture, nor subject the Trustee to a material risk of personal
liability, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Upon receipt by the Trustee of any written notice directing the time,
method or place of conducting any such proceeding or exercising any such trust
or power, with respect to Securities of a series all or part of which is
represented by a Global Security, a record date shall be established by the
Trustee for determining Holders of Outstanding Securities of such series
entitled to join in such notice, which record date shall be at the close of
business on the day the Trustee receives such notice. The Holders on such record
date, or their duly designated proxies, and only such Persons, shall be entitled
to join in such notice, whether or not such Holders remain Holders after such
record date; provided, that unless the Holders of a majority in principal amount
of the Outstanding Securities of such series shall have joined in such notice
prior to the day which is 90 days after such record date, such notice shall
automatically and without further action by any Holder be cancelled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of
a Holder, from giving, after expiration of such 90-day period, a new notice
identical to a notice which has been cancelled pursuant to the proviso to the
preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 512.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or interest on
any Security of such series, or
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(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
The Trustee may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to waive any past default hereunder.
If a record date is fixed, the Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to waive any
default hereunder, whether or not such Holders remain Holders after such record
date; provided, that unless such majority in principal amount shall have waived
such default prior to the date which is 90 days after such record date, any such
waiver previously given shall automatically and without further action by any
Holder be cancelled and of no further effect.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(1) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction, determined as provided in Section 512, of the Holders of a
majority in principal amount of the Outstanding Securities of any series,
relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to the
Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have
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reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series, as their names and addresses appear in the
Security Register, notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any) or
interest on any Security of such series or in the payment of any sinking fund
installment with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the Holders of Securities of such series. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order, or as
otherwise expressly provided herein, and any resolution of the Board of
Directors of the Company may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with Counsel and the advice of such
Counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
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(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) The Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith and reasonably believed, upon
advice of Counsel, by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee or any
Authenticating Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or of the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 608 and 613, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
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Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as shall be
agreed to in writing between the Company and the Trustee for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the compensation and the expenses and disbursements of its
agents and Counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee, or any predecessor Trustee, and each
of its officers, directors, employees and agents, for, and to hold it harmless
against, any and all losses, liabilities, damages, claims or expenses, including
taxes (other than taxes based upon, measured or determined by the income of the
Trustee) incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of, premium, if any, or interest, if any,
on particular Securities.
Section 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series or a trustee under any other indenture with
respect to bonds issued for the benefit of the Company.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by Federal or
State authority. If such Corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then
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for the purposes of this Section, the combined capital and surplus of such
Corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a) after
written request therefor by the Company or any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or any
such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
Control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any
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such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities
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of that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) shall add to or change
any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) and (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any Corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
Corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims.
If and when the Trustee shall be or become a creditor of the Company, the
Trustee shall be subject to the provisions of the Trust Indenture Act regarding
the collection of claims against the Company.
Section 614. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding, the Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be
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authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a Corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such Corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
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If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
By
-------------------------------------------
The Bank of New York, as Trustee
By
----------------------------------------------
As Authenticating Agent
By
----------------------------------------------
Authorized Signatory
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than 15 days after each Regular Record
Date (or, if there is no Regular Record Date relating to a series,
semi-annually on dates set forth in the Board Resolution or supplemental
indenture with respect to such series), a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders
as of such date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as
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provided in Section 701 and the names and addresses of Holders received by the
Trustee in its capacity as Security Registrar. The Trustee may destroy any list
furnished to it as provided in Section 701 upon receipt of a new list so
furnished.
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 702(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 702(b).
Section 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
Reports so required to be transmitted at stated intervals of not more than
12 months shall be transmitted no later than 60 days after May 15 in each
calendar year, commencing with the year 1999.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit
to Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Securities and Exchange Act of 1934, as amended,
shall be filed with the Trustee within 15 days after the same is so required to
be filed with the Commission.
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ARTICLE EIGHT
Consolidation, Merger, Conveyance or Transfer
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Corporation
or convey or transfer its properties and assets substantially as an entirety to
any Person, unless:
(1) the Corporation formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer the properties
and assets of the Company substantially as an entirety shall be, if a
Corporation, a Corporation organized and existing under the laws of the United
States of America or any State or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of
the principal of (and premium, if any) and interest on all the Securities and
the performance of every covenant of this Indenture on the part of the Company
to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel each stating that such consolidation, merger, conveyance
or transfer and such supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to such transaction have
been complied with.
The Company shall not consolidate with any other Corporation or permit
the Company to be merged into any other Corporation, or sell its property and
assets as, or substantially as, an entirety except upon the terms and
conditions set forth in this Article Eight. Upon any consolidation or merger,
or any sale of the property and assets of the Company as, or substantially
as, an entirety in accordance with the provisions of this Article Eight, the
Corporation formed by such consolidation or into which the Company shall have
been merged or the Person to which such sale shall have been made shall
succeed to and be substituted for the Company with the same effect as if it
had been named herein as a party hereto, and thereafter from time to time
such Corporation may exercise each and every right and power of the Company
under this Indenture, in the name of the Company or in its own name; and any
act or proceeding by any provision of this Indenture required or permitted to
be done by any board or officer of the Company may be done with like force
and effect by the like board or officer of any Corporation that shall at the
time be the successor of the Company hereunder.
The Trustee shall be entitled to receive and may conclusively rely on and
shall be protected in relying upon an Opinion of Counsel as conclusive evidence
that any such consolidation, merger or sale, and any such assumption of payment
and performance complies with the provisions of this Article.
ARTICLE NINE
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Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form or to facilitate the
issuance of Securities in global form; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture that is entitled to the benefit
of such provision; or
(6) to secure the Securities pursuant to the requirements of Section
801(3) or Section 1004 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series or to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided
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such action shall not adversely affect the interests of the Holders of
Securities of any series in any material respect.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture and of not less than 66 2/3% in principal amount of the
Outstanding Securities of all series affected by such supplemental indenture, by
Act of said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the principal
of an Original Issue Discount Security that would be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section
502, or change any Place of Payment where, or the coin or currency in
which, any Security or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1008, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record date,
or their duly designated proxies, and only such Persons, shall be entitled to
consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, or immunities or liabilities under this Indenture
or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and such Securities may be authenticated and delivered
by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
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Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
failure so to act.
In the event that the Company appoints one or more Paying Agents for any
series of Securities, the Company covenants and agrees to indemnify the Trustee
for, and hold the Trustee harmless against, any loss, liability or expense
incurred without negligence or bad faith on the part of the Trustee, arising out
of or in connection with the administration of the duties of the Paying Agent
appointed by the Company under this Indenture and to reimburse the Trustee for
the reasonable costs and expenses (including Counsel fees) of defending against
any such claim or liability.
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Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, prior to each due date of the principal of (and premium,
if any) or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest on the Securities
of that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order of the Company direct any Paying Agent to pay to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company in trust for the payment of the principal of (and premium, if any)
or interest on any Security of any series and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request or (if then held by the
Company) shall be discharged from such trust, subject to any other requirements
imposed on the Trustee by applicable law; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, shall at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such
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publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
Section 1004. Statement by Officers as to Default.
The Company shall deliver to the Trustee within 30 days after the
occurrence thereof written notice of any event which with the giving of notice
and the lapse of time or both would become an Event of Default.
The Company shall deliver to the Trustee, within 120 days after the end of
each Fiscal Year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions applicable to the Company hereunder, and if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company of
less than all the Securities of like tenor of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of like tenor of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of like tenor of such series not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal
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amount of such Securities of a denomination larger than the minimum authorized
denomination for such Securities.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date unless a shorter period is specified pursuant to Section 301,
to each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) the CUSIP Number of the Securities to be redeemed,
(4) if less than all the Outstanding Securities of like tenor of any
series are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed,
(5) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(7) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
Unless the Company has otherwise made an election to have Section 1302
apply to the Securities of any series and has complied with the provisions of
Section 1303, on or prior to any
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Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are to be redeemed
on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company or by the Trustee, if the Company has made an election
pursuant to Section 1301, at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute and the Trustee shall
authenticate and make available for delivery to the Holder of such Security
without service charge, a new Security or Securities of the same series and of
like tenor, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered. If a Global Security is so
surrendered, such new Security so issued shall be a new Global Security.
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
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The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of such series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
Defeasance
Section 1301. Applicability of Article; Company's Option to Effect
Defeasance.
Unless otherwise provided for the Securities of any series pursuant to
Section 301, the provisions of Article Thirteen shall be applicable to the
Securities of any series, and the Company may at its option by or pursuant to a
Board Resolution, at any time, with respect to
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the Securities of such series, elect to have Section 1302 be applied to the
Outstanding Securities of such series upon compliance with the conditions set
forth below in this Article Thirteen.
Section 1302. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this
Section, the Company shall be deemed to have been discharged from its
obligations with respect to the Outstanding Securities of such series on the
date the conditions set forth below are satisfied (hereinafter, "Defeasance").
For this purpose, such Defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the Outstanding
Securities of such series and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are concerned (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of
Outstanding Securities of such series to receive, solely from the trust fund
described in Section 1303 and as more fully set forth in such Section, payments
in respect of the principal of (and premium, if any) and interest on such
Securities when such payments are due, (B) the Company's obligations with
respect to such Securities under Sections 304, 305, 306, 1002, 1003 and 1102,
(C) the rights, powers, trusts, duties, and immunities of the Trustee under
Sections 305, 306, 307, 309, 402, 607, the last paragraph of Section 1003 and
Sections 1104 and 1106, and otherwise the duty of the Trustee to authenticate
Securities of such series issued on registration of transfer or exchange and (D)
this Article Thirteen. Subject to compliance with this Article Thirteen, the
Company may exercise its option under this Section 1302.
Section 1303. Conditions to Defeasance.
The following shall be the conditions to application of Section 1302 to
the Outstanding Securities of such series:
(a) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 609 who shall agree to comply with the provisions of this
Article Thirteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the holders of such Securities,
(A) money in an amount, or (B) U.S. Government Obligations which through
the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment, money in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants or a nationally recognized investment
banking firm acceptable to the Company expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, (i) the principal of (and premium, if any) and each
installment of principal of (and premium, if any) and interest on the
Outstanding Securities of such series on any Redemption Date, if the
Company has irrevocably elected to cause the Outstanding Securities of
such series subject to redemption to be redeemed on a specific Redemption
Date by giving notice to the Trustee of such election at the time it
exercises its option pursuant to Section 1302, or on the Stated Maturity
of such principal or installment of principal or interest and (ii) any
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mandatory sinking fund payments or analogous payments applicable to the
Outstanding Securities of such series on the day on which such payments
are due and payable in accordance with the terms of this Indenture and of
such Securities. For this purpose, "U.S. Government Obligations" means
securities that are (x) direct obligations of the United States of America
for the payment of which its full faith and credit is pledged or (y)
obligations of a Person Controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment of
which is unconditionally guaranteed as a full faith and credit obligation
by the United States of America, which, in either case, are not callable
or redeemable at the option of the issuer thereof, and shall also include
a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any
such U.S. Government Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by such custodian for
the account of the holder of such depository receipt, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt
from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal of or interest
on the U.S. Government Obligation evidenced by such depository receipt.
(b) (i) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit, and (ii) with respect to a Defeasance and discharge
under Section 1302, no such Event of Default or event shall have occurred
and be continuing under subsection 501(5) or (6) hereof at any time
during the period ending on the 91st day after the date of such deposit
or, if longer, ending on the day following the expiration of the
longest preference period applicable to the Company in respect of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period); provided that in
connection with a Defeasance under Section 1302 the Company will be
released from its covenant under Section 1004 immediately upon
the making of the deposit under subsection (a) without reference
to the additional period of time referred to in this subsection (ii);
and provided, further, however, that if (x) a bank with an investment
rating of at least A by each of Standard & Poor's Corporation and
Moody's Investors Service, Inc. shall issue in favor of the Trustee,
for the benefit of the Holders of the Outstanding Securities to be
defeased hereunder, an unsecured letter of credit to guarantee the
deposit referred to in subparagraph (a) above and (y) the Company shall
provide to the Trustee an Opinion of Counsel (which shall be nationally
recognized Counsel experienced in bankruptcy matters) satisfactory to
the Trustee to the effect that no payments pursuant to the letter of
credit to be made for the benefit of the Holders of the Outstanding
Securities to be defeased hereunder would be subject to recapture, as a
preference or otherwise, by any trustee in bankruptcy of the Company,
then this condition shall be satisfied without regard to the period of
time referred to in subsection (ii) above.
(c) Such Defeasance shall not cause the Trustee for the Securities
of such series to have a conflicting interest as defined in Section 608
and for purposes of the Trust Indenture Act with respect to any securities
of the Company.
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(d) Such Defeasance shall not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound.
(e) Such Defeasance shall not cause any Securities of such series
then listed on any registered national securities exchange under the
Securities Exchange Act of 1934, as amended, to be delisted.
(f) Such Defeasance shall be effected in compliance with any
additional terms, conditions or limitations which may be imposed on the
Company in connection therewith pursuant to Section 301.
(g) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the Defeasance under Section 1302 have
been complied with.
Section 1304. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee -- collectively, for purposes of this
Section 1304, the "Trustee") pursuant to Section 1304 in respect of the
Outstanding Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own paying agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities of such series.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1304 which, in the opinion of a nationally recognized firm of
independent public accountants or a nationally recognized investment banking
firm acceptable to the Company expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would
then be required to be deposited to effect an equivalent Defeasance or
covenant Defeasance.
Section 1305. Reinstatement.
If the Trustee is unable to apply any money in accordance with Section
401 or Section 1302 by reason of any legal proceeding or by reason of any
order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Securities of such series shall be
revived and reinstated as though no deposit had occurred pursuant to Section
401 or Section 1302 until such time as the Trustee is permitted to apply all
such money in accordance with Section 401 or Section 1302; provided, however,
that if the Company has made any payment of interest on or principal of (and
premium, if any, on) any Securities of such series because of the
reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such series of Securities to receive such payment
from the money held by the Trustee.
* * * *
This instrument 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 but one and the same instrument.
57
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
TECO ENERGY, INC.
By
------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By
------------------------------------
Name:
Title:
58
<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 name thereto by like authority.
-----------------------------------------
Notary Public
59
<PAGE>
EXHIBIT 5
PALMER & DODGE LLP
One Beacon Street, Boston, MA 02138-3190
TELEPHONE: (617) 573-0100 FACSIMILE: (617) 227-4420
August 24, 1998
TECO Energy, Inc.
702 North Franklin Street
Tampa, Florida 33602
We are rendering this opinion in connection with the Registration Statement
on Form S-3 (the "Registration Statement") filed by TECO Energy, Inc. (the
"Company") with the Securities and Exchange Commission under the Securities Act
of 1933, as amended (the "Securities Act"), on August 6, 1998 relating to debt
securities of the Company in an aggregate principal amount of $200,000,000
("Debt Securities"). The Debt Securities are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act and issued
pursuant to an Indenture to be dated as of August 17, 1998 (the "Indenture")
between the Company and The Bank of New York, as trustee, the proposed form of
which is filed as an exhibit to the Registration Statement.
We have acted as your counsel in connection with the preparation of the
Registration Statement and are familiar with the proceedings taken by the
Company in connection with the authorization, issuance and sale of the Debt
Securities. We have examined all such documents as we consider necessary to
enable us to render this opinion.
Based on the foregoing, we advise you that, in our opinion, when the
Registration Statement has become effective under the Securities Act, the
Indenture relating to the Debt Securities has been duly authorized, executed and
delivered, the terms of the Debt Securities and of their issuance and sale have
been duly established in conformity with the Indenture so as not to violate any
applicable law or result in a default under or breach of any agreement or
instrument binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over
the Company, and the Debt Securities have been duly executed and authenticated
in accordance with the Indenture and issued and sold as contemplated in the
Registration Statement, the Securities will constitute valid and legally binding
obligations of the Company, 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.
We have relied as to certain matters on information obtained from public
officials, officers of the Company and other sources believed by us to be
responsible.
The opinion rendered herein is limited to the laws of the Commonwealth of
Massachusetts and the federal laws of the United States. For purposes of our
opinion as to the enforceability of the Indenture and the Debt Securities, we
are rendering such opinion as though the laws of Massachusetts governed,
notwithstanding the recitations in such instruments that the laws of another
jurisdiction govern.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the prospectus filed as part thereof.
Very truly yours,
/s/ PALMER & DODGE LLP
PALMER & DODGE LLP
<PAGE>
+ EXHIBIT 12
TECO ENERGY, INC.
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the consolidated ratios of earnings to fixed
charges of TECO Energy, Inc. (the "Company" or "TECO") for the periods shown.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
SIX MONTHS ENDED TWELVE MONTHS ENDED -----------------------------------------------------
JUNE 30, 1998 JUNE 30, 1998 1997 1996 1995 1994 1993
- ----------------------------------- -------------------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
3.27x(1) 3.61x(2) 3.77x(3) 3.72x 3.48x 3.06x(4) 3.23x(5)
</TABLE>
For the purposes of calculating these ratios, earnings consist of income before
income taxes and fixed charges. Fixed charges consist of interest on
indebtedness, amortization of debt premium, the interest component of rentals
and preferred stock dividend requirements.
- ------------------------
(1) Includes the effect of non-recurring pretax charges totaling $25.9 million
associated with write-offs at TECO Coal Corporation, TeCom Inc. and Tampa
Electric Company, each a wholly owned subsidiary of TECO, and $0.4 million
pretax of merger-related costs. The effect of these charges was to reduce
the ratio of earnings to fixed charges. Had these charges been excluded form
the calculation, the ratio of earnings to fixed charges would have been
excluded from the calculation, the ratio of earnings to fixed charges would
have been 3.75x for the six-month period ended June 30, 1998.
(2) Includes the effect of the non-recurring pretax charges discussed in Note 1
above and $3.7 million, pretax, of additional costs related to the mergers
completed in 1997. The effect of these charges was to reduce the ratio of
earnings to fixed charges. Had these charges been excluded from the
calculation, the ratio of earnings to fixed charges would have been 3.89x
for the 12-month period ended June 30, 1998.
(3) Includes a $2.6-million pretax charge for all transactions associated with
the mergers completed in June 1997. The effect of this charge was to reduce
the ratio of earnings to fixed charges. Had this charge been excluded from
the calculation, the ratio of earnings to fixed charges would have been
3.79x for the year ended December 31, 1997.
(4) Includes the effect of a $25-million pretax restructuring charge. The effect
of this charge was to reduce the ratio of earnings to fixed charges. Had
this non-recurring charge been excluded from the calculation, the ratio of
earnings to fixed charges would have been 3.30x for the year ended December
31, 1994.
(5) Includes the effect of the non-recurring $10-million pretax charge
associated with a coal pricing settlement at Tampa Electric Company. The
effect of this charge was to reduce the ratio of earnings to fixed charges.
Had this non-recurring charge been excluded from the calculation, the ratio
of earnings to fixed charges would have been 3.33x for the year ended
December 31, 1993.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
of TECO Energy, Inc. on Amendment No. 1 to Form S-3 (File No. 333-60819) of our
report dated Jan. 15, 1998, except for certain information included in Notes L
and I, for which the dates are Jan. 27, 1998 and March 10, 1998, respectively,
on our audits of the consolidated financial statements of TECO Energy, Inc. as
of Dec. 31, 1997 and 1996 and for the years ended Dec. 31, 1997, 1996, and 1995,
which report is included in TECO Energy, Inc.'s 1997 Annual Report on Form 10-K.
We also consent to the reference to our firm under the caption "Experts."
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
August 24, 1998
