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Exhibit 1.2
EXECUTION COPY
TECO ENERGY, INC.
$200,000,000
MEDIUM-TERM NOTE PROGRAM
Due from 9 Months to 15 Years from Date of Issue
AGENCY AGREEMENT
September 20, 2000
Banc of America Securities LLC
100 North Tryon Street
Charlotte, North Carolina 28255
Salomon Smith Barney Inc.
390 Greenwich Street
New York, New York 10013
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 15 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 Banc of America Securities LLC and Salomon
Smith Barney Inc. (individually an "AGENT" and collectively the "AGENTS") as its
agents, subject to Section 8, Section 11 and the Company's right to sell Notes
directly to investors without the use of agents for the purpose of soliciting
and receiving offers to purchase Notes from the Company by others and, on the
basis of the representations and warranties herein contained, but subject to the
terms and conditions herein set forth, each Agent agrees to use reasonable
efforts to solicit and receive offers to purchase Notes upon terms acceptable to
the Company at such times and in such amounts as the Company shall from time to
time specify. In addition, any Agent may also
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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, including any preliminary prospectus used prior
to the filing of the final prospectus, as filed with, or transmitted for filing
to, the Commission pursuant to Rule 424. As used herein, the terms "BASE
PROSPECTUS" and "PROSPECTUS" shall include in each case the documents, if any,
incorporated by reference therein. The terms "SUPPLEMENT," "AMENDMENT" and
"AMEND" as used herein shall include all documents deemed to be incorporated by
reference in the Prospectus that are filed subsequent to the date of the Base
Prospectus by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT").
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to and
agrees with each Agent as of the Commencement Date (as defined below), as of
each date on which an Agent solicits offers to purchase Notes from the Company,
as of each date on which the Company accepts an offer to purchase Notes
(including any purchase by an Agent pursuant to a Purchase Agreement), as of
each date the Company issues and delivers Notes, and as of each date the
Registration Statement or the Base Prospectus is amended or supplemented, as
follows (it being understood that such representations, warranties and
agreements shall be deemed to relate to the Registration Statement, the Base
Prospectus and the Prospectus, each as amended or supplemented to each such
date):
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus, on the date
it was or is filed with the Commission, (A) complied or will comply in all
material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder and (B) did not contain and will
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) each part of the Registration
Statement, when such part became effective, did not contain and each such
part, as amended or supplemented, if applicable, when so amended or
supplemented, will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iii) the Registration
Statement, on the date it was declared effective, and the Prospectus, as of
the date of the Base Prospectus, complied and, as amended or supplemented
(other than in the case of a preliminary prospectus), 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
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information relating to an Agent furnished to the Company in writing by
such Agent expressly for use therein or (y) to that part of the
Registration Statement that constitutes the Statement of Eligibility (Form
T-1) under the Trust Indenture Act of 1939, as amended (the "TRUST
INDENTURE ACT"), of the Trustee and (2) the representations and warranties
set forth in clauses 1(b)(ii) and 1(b)(iv) above, when made as of the
Commencement Date or as of any date on which an Agent solicits offers to
purchase Notes from the Company or on which the Company accepts an offer to
purchase Notes, shall be deemed not to cover information concerning an
offering of particular Notes to the extent such information will be set
forth in a supplement to the Base Prospectus;
(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of Florida,
and has the power and authority (corporate and otherwise) to own its
property and to conduct its business as described in the Prospectus;
(d) Each of the Company's "significant subsidiaries" (as defined
in Rule 1-02(w) of Regulation S-X of the Exchange Act) is a corporation
duly incorporated and validly existing in good standing under the laws of
the jurisdiction of its incorporation, and has full power and authority
(corporate and other) to own its properties and to conduct its business as
described in the Registration Statement and Prospectus;
(e) All of the issued shares of capital stock of each of the
Company's significant subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances and
claims.
(f) Each of the Company and its significant subsidiaries is duly
qualified as a foreign corporation in all jurisdictions where it owns or
leases substantial real properties or in which the conduct of its business
requires qualification as a foreign corporation and in which the failure to
so qualify could have a material adverse effect on the business, financial
condition or prospects of the Company and its subsidiaries taken as a
whole;
(g) The Company has full power and lawful authority to authorize,
execute and deliver this Agreement and any applicable Purchase Agreement
(as hereinafter defined) on the terms and conditions set forth herein and
therein and the Agreement and any applicable Purchase Agreement have been
duly authorized, executed and delivered by the Company;
(h) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms;
(i) The Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the purchasers thereof, will be entitled to
the benefits of the Indenture and will be valid and binding obligations of
the Company;
(j) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Notes, the Indenture and any applicable Purchase Agreement will not result
in a breach of or constitute a default under nor will it violate the
provisions of any indenture, mortgage, deed of trust, agreement, or other
instrument to which the Company is a party or by which it or any of its
property is bound nor will it violate the provisions of the Restated
Articles of Incorporation or by-laws of the Company or any statute, or any
order, rule or regulation, to the extent applicable to the Company, of any
court or other governmental or regulatory body and no consent, approval,
authorization or order of, or qualification with, any governmental or
regulatory body, including the Florida Public Service Commission, is
required for the performance by the Company of its obligations under this
Agreement, the Notes, the Indenture and any applicable Purchase Agreement,
except, as have been obtained and except such as may be required by the
securities or Blue Sky laws of the various states in connection with the
offer and sale of the Notes;
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(k) There has not occurred any material adverse change in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus;
(l) The financial statements of the Company, together with
related notes, incorporated in the Registration Statement and the
Prospectus present fairly, in accordance with generally accepted accounting
principles consistently applied (except as stated therein and except the
notes to the interim financial statements), the financial position and the
results of operations of the Company and its predecessors at the dates and
for the respective periods to which they apply;
(m) The Company is not and, after giving effect to the offering
and sale of the Notes and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended;
(n) The Company has filed an appropriate exemption statement
pursuant to the provisions of the Public Utility Holding Company Act of
1935 (the "1935 Act") and is exempt from all provisions of the 1935 Act
except Section 9(a)(2)thereof relating to the acquisition of securities of
other public utility companies. The Company is not subject to the
jurisdiction of the Florida Public Service Commission with respect to the
issue and sale of the Notes;
(o) PricewaterhouseCoopers LLP, successor to Coopers & Lybrand
LLP who have certified financial statements of the Company, are independent
public accountants as required by the Securities Act and the rules and
regulations of the Commission thereunder;
(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; and
(q) The ROARS Remarketing Agreement between the Company and the
Initial Callholder (as defined in the Prospectus), when entered into, shall
have been duly authorized, executed, and delivered by the Company.
2. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL.
(a) SOLICITATIONS AS AGENT. In connection with an Agent's actions
as agent hereunder, such Agent agrees to use reasonable efforts to solicit
offers to purchase Notes upon the terms and conditions set forth in the
Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase Notes. Upon receipt of
notice from the Company, the Agents will forthwith suspend solicitations of
offers to purchase Notes from the Company until such time as the Company
has advised the Agents that such solicitation may be resumed. While such
solicitation is suspended, the Company shall not be required to deliver any
certificates, opinions or letters in accordance with Sections 5(a), 5(b)
and 5(c); PROVIDED, HOWEVER, that if the Registration Statement or
Prospectus is amended or supplemented during the period of suspension
(other than by an amendment or supplement providing solely for a change in
the interest rates, redemption provisions, amortization schedules or
maturities offered on the Notes or for a change the Agents deem to be
immaterial), no Agent shall be required to resume soliciting offers to
purchase Notes until the Company has delivered such certificates, opinions
and letters as such Agent may reasonably request.
The Company agrees to pay to each Agent, as consideration for the
sale of each Note resulting from a solicitation made or an offer to
purchase received by such Agent, a commission in the form of a discount
from the purchase price of such Note equal to the percentage set forth
below of the purchase price of such Note:
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TERM COMMISSION RATE
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
15 years and beyond subject to negotiation
Each Agent shall communicate to the Company, orally or in
writing, each offer to purchase Notes received by such Agent as agent that
in its judgment should be considered by the Company. The Company shall have
the sole right to accept offers to purchase Notes and may reject any offer
in whole or in part. Each Agent shall have the right to reject any offer to
purchase Notes that it considers to be unacceptable, and any such rejection
shall not be deemed a breach of its agreements contained herein. The
procedural details relating to the issue and delivery of Notes sold by the
Agents as agents and the payment therefor shall be as set forth in the
Supplemental Indenture relating to such Notes. Additional procedural
details relating to such Notes may be set forth in one or more letter
agreements between the Company and the Trustee.
(b) PURCHASES AS PRINCIPAL. Each sale of Notes to an Agent as
principal shall be made in accordance with the terms of this Agreement. In
connection with each such sale, the Company will enter into a Purchase
Agreement that will provide for the sale of such Notes to and the purchase
thereof by such Agent. Each Purchase Agreement will take the form of a
written agreement between such Agent and the Company, which may be
substantially in the form of Exhibit A hereto (a "PURCHASE AGREEMENT").
An Agent's commitment to purchase Notes pursuant to a Purchase
Agreement shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each Purchase
Agreement shall specify the principal amount of Notes to be purchased by
such Agent pursuant thereto, the maturity date of such Notes, the price to
be paid to the Company for such Notes, the interest rate and interest rate
formula, if any, applicable to such Notes and other terms of such Notes.
Each such Purchase Agreement may also specify any requirements for
officers' certificates, opinions of counsel and letters from the
independent public accountants of the Company pursuant to Section 4 hereof.
A Purchase Agreement may also specify certain provisions relating to the
reoffering of such Notes by such Agent.
Each Purchase Agreement shall specify the time and place of
delivery of and payment for such Notes. Unless otherwise specified in a
Purchase Agreement, the procedural details relating to the issue and
delivery of Notes purchased by an Agent as principal and the payment
therefor shall be as set forth in the Supplemental Indenture relating to
such Notes. Additional procedural details relating to such Notes may be set
forth in one or more letter agreements between the Company and the Trustee.
Each date of delivery of and payment for Notes to be purchased by an Agent
pursuant to a Purchase Agreement is referred to herein as a "SETTLEMENT
DATE."
Unless otherwise specified in a Purchase Agreement, if you are
purchasing Notes as principal you may resell such Notes to other dealers.
Any such sales may be at a discount, which shall not exceed the amount set
forth in the Prospectus Supplement relating to such Notes.
(c) DELIVERY. The documents required to be delivered by Section 4
of this Agreement as a condition precedent to each Agent's obligation to
begin soliciting offers to purchase Notes as an agent of the Company shall
be delivered at the office of Ropes & Gray, counsel for the Agents, not
later than 10:00 a.m., New York City time, on the date hereof, or at such
other time and/or place as the Agents and the Company may agree upon in
writing, but in no event later than the day prior to the earlier of (i) the
date on which the Agents
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begin soliciting offers to purchase Notes or (ii) the first date on which
the Company accepts any offer by an Agent to purchase Notes pursuant to a
Purchase Agreement. The date of delivery of such documents is referred to
herein as the "COMMENCEMENT DATE."
(d) OBLIGATIONS SEVERAL. The Company acknowledges that the
obligations of the Agents under this Agreement are several and not joint.
3. AGREEMENTS. The Company agrees with each Agent that:
(a) Prior to the termination of the offering of the Notes
pursuant to this Agreement or any Purchase Agreement, the Company will not
file any Prospectus Supplement relating to Notes or any amendment to the
Registration Statement unless the Company has previously furnished to the
Agents copies thereof for their review and will not file any such proposed
supplement or amendment to which the Agents reasonably object; PROVIDED,
HOWEVER, that (i) the foregoing requirement shall not apply to any of the
Company's periodic filings with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, copies of which filings the Company
will cause to be delivered to the Agents promptly after being transmitted
for filing with the Commission and (ii) any Prospectus Supplement that
merely sets forth the terms or a description of particular Notes shall only
be reviewed and approved by the Agent or Agents offering such Notes.
Subject to the foregoing sentence, the Company will promptly cause each
Prospectus Supplement to be filed with or transmitted for filing to the
Commission in accordance with Rule 424(b) under the Securities Act. The
Company will promptly advise the Agents (i) of the filing of any amendment
or supplement to the Base Prospectus (except that notice of the filing of
an amendment or supplement to the Base Prospectus that merely sets forth
the terms or a description of particular Notes shall only be given to the
Agent or Agents offering such Notes), (ii) of the filing and effectiveness
of any amendment to the Registration Statement, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Base Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose, and (v) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose. The Company will use
reasonable efforts to prevent the issuance of any such stop order or notice
of suspension of qualification and, if issued, to obtain as soon as
practicable the withdrawal thereof. If the Base Prospectus is amended or
supplemented as a result of the filing under the Exchange Act of any
document incorporated by reference in the Prospectus, no Agent shall be
obligated to solicit offers to purchase Notes so long as it is not
reasonably satisfied with such document.
(b) If, at any time when a prospectus relating to Notes is
required to be delivered under the Securities Act, any event occurs or
condition exists as a result of which the Prospectus, as then amended or
supplemented, would include an untrue statement of a material fact, or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances when the Prospectus, as then amended or
supplemented, is delivered to a purchaser, not misleading, or if, in the
opinion of the Company, it is necessary at any time to amend or supplement
the Prospectus, as then amended or supplemented, to comply with applicable
law, the Company will immediately notify the Agents by telephone (with
confirmation in writing) to suspend solicitation of offers to purchase
Notes and, if so notified by the Company, the Agents shall forthwith
suspend such solicitation and cease using the Prospectus, as then amended
or supplemented. If the Company shall decide to amend or supplement the
Registration Statement or Prospectus, as then amended or supplemented, it
shall so advise the Agents promptly by telephone (with confirmation in
writing) and, at its expense, shall prepare and cause to be filed with the
Commission, except as otherwise expressly provided, at such time it deems
appropriate, an amendment or supplement to the Registration Statement or
Prospectus, as then amended or supplemented, reasonably satisfactory to the
Agents, that will correct such statement or omission or effect such
compliance, and will supply such amended or supplemented Prospectus to the
Agents in such quantities as they may reasonably request. If any documents,
certificates, opinions and letters furnished to the Agents pursuant to
Sections 3(f), 5(a), 5(b) and 5(c) in connection with the preparation and
filing of such amendment or supplement are reasonably satisfactory to the
Agents, upon the filing with the Commission of such amendment or supplement
to the Prospectus or upon the effectiveness of an amendment to the
Registration
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Statement, the Agents will resume the solicitation of offers to purchase
Notes hereunder. Notwithstanding any other provision of this paragraph,
until the distribution of any Notes an Agent may own as principal has been
completed up to a maximum of fifteen days from the date of the Purchase
Agreement, if any event described above in this paragraph occurs, the
Company will, at its own expense, forthwith prepare and cause to be filed
promptly with the Commission an amendment or supplement to the Registration
Statement or Prospectus, as then amended or supplemented, reasonably
satisfactory to such Agent, will supply such amended or supplemented
Prospectus to such Agent in such quantities as it may reasonably request,
and shall furnish to such Agent pursuant to Sections 3(f), 5(a), 5(b), and
5(c) such documents, certificates, opinions, and letters as it may request
in connection with the preparation and filing of such amendment or
supplement.
(c) The Company will make generally available to its security
holders an earning statement that satisfies the provisions of Section 11(a)
of the Securities Act and the rules and regulations of the Commission
thereunder covering a twelve month period beginning not later than the
first day of the Company's fiscal quarter next following the "effective
date" (as defined in Rule 158 under the Securities Act) of the Registration
Statement with respect to each sale of Notes. If such fiscal quarter is the
first fiscal quarter of the Company's fiscal year, such earning statement
shall be made available not later than 90 days after the close of the
period covered thereby and in all other cases shall be made available not
later than 45 days after the close of the period covered thereby.
(d) The Company will furnish to each Agent, without charge, a
conformed copy of the Registration Statement, including exhibits and all
amendments thereto, and as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto as such Agent may reasonably request.
(e) The Company will cooperate in the qualification of the Notes
for offer and sale under the securities or Blue Sky laws of such
jurisdictions in the United States as the Agents shall reasonably request
and help to maintain such qualifications for as long as the Agents shall
reasonably request.
(f) The Company shall furnish to the Agents such relevant
documents and certificates of officers of the Company relating to the
business, operations and affairs of the Company, the Registration
Statement, the Base Prospectus, any amendments or supplements thereto, the
Indenture, any Supplemental Indenture, the Notes, this Agreement, any
Purchase Agreement and the performance by the Company of its obligations
hereunder or thereunder as the Agents may from time to time reasonably
request.
(g) The Company shall notify the Agents promptly in writing of
any downgrading, or of its receipt of any notice of any intended or
potential downgrading or of any review for possible change that does not
indicate the direction of the possible change, in the rating accorded any
of the Company's securities by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act.
(h) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its
obligations under this Agreement and any Purchase Agreement, including (i)
the preparation and filing of the Registration Statement and the Prospectus
and all amendments and supplements thereto, (ii) the preparation, issuance
and delivery of the Notes, (iii) the fees and disbursements of the
Company's counsel and accountants and of the Trustee and its counsel, (iv)
the qualification of the Notes under securities or Blue Sky laws in
accordance with the provisions of Section 3(e), including filing fees and
the fees and disbursements of counsel for the Agents in connection
therewith and in connection with the preparation of any Blue Sky Memoranda
in an amount not exceeding $5,000 with respect to any such memorandum, (v)
the printing and delivery to the Agents in quantities as hereinabove stated
of copies of the Registration Statement and all amendments thereto and of
the Prospectus and any amendments or supplements thereto, (vi) any fees
charged by rating agencies for a requested rating of the Notes (the Company
agrees the Agent shall not be obligated to pay bills for unrequested
ratings), (vii) any expenses incurred by the Company in connection with a
"road show" presentation to potential investors, (viii) 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
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rendered by such counsel hereunder, and (ix) 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, or any development
involving a propective change, in the condition, financial or otherwise, or
in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus, as
amended or supplemented at the time of such solicitation or at the time
such offer to purchase was made, that, in the reasonable judgment of the
relevant Agent, is material and adverse and that makes it, in the
reasonable judgment of such Agent, impracticable to market the Notes on the
terms and in the manner contemplated by the Prospectus, as so amended or
supplemented.
(ii) there shall not have occurred any (A) suspension or material
limitation of trading generally on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade,
(B) suspension of trading of any securities of the Company on any exchange
or in any over-the-counter market, (C) declaration of a general moratorium
on commercial banking activities in New York by either Federal or New York
State authorities or (D) any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the
reasonable judgment of the relevant Agent, is material and adverse and, in
the case of any of the events described in clauses 4(a)(ii)(A) through
4(a)(ii)(D), such event, singly or together with any other such event,
makes it, in the reasonable judgment of such Agent, impracticable to market
the Notes on the terms and in the manner contemplated by the Prospectus, as
amended or supplemented at the time of such solicitation or at the time
such offer to purchase was made; and
(iii) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by
any "nationally recognized statistical rating organization," as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act;
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except (A) in each case described in Section 4(a)(i), 4(a)(ii) or 4(a)(iii)
above, as disclosed to the relevant Agent in writing by the Company prior to
such solicitation or, in the case of a purchase of Notes, as disclosed to the
relevant Agent before the offer to purchase such Notes was made, or (B) in each
case described in Section 4(a)(ii) above, the relevant event shall have occurred
and been known to the relevant Agent before such solicitation or, in the case of
a purchase of Notes, before the offer to purchase such Notes was made.
(b) On the Commencement Date and, if called for by any Purchase
Agreement, on the corresponding Settlement Date, the relevant Agents shall have
received:
(i) The opinion, dated as of such date, of Palmer & Dodge LLP,
outside counsel for the Company, to the effect that:
(A) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Florida has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus, as then
amended or supplemented;
(B) each of this Agreement and any applicable Written
Purchase Agreement has been duly authorized, executed and delivered by
the Company;
(C) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles;
(D) the Notes have been duly authorized and, if executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the purchasers thereof on the date of
such opinion, would be entitled to the benefits of the Indenture and
would be valid and binding obligations of the Company, enforceable in
accordance with their respective terms, subject to bankruptcy,
insolvency fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles;
(E) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Notes, the Indenture and any applicable Purchase Agreement will
not contravene any provision of applicable law or the restated
Articles of incorporation or by-laws of the Company or constitute a
default under any agreement or other instrument binding upon the
Company or any of its subsidiaries that is listed as an exhibit to the
Company's Form 10-K for the year ended December 31, 1999, or any
subsequently filed periodic report, or, to the best of such counsel's
knowledge, any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for
the performance by the Company of its obligations under this
Agreement, the Notes, the Indenture and any applicable Purchase
Agreement, except as has been obtained and except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Notes or the rules of the
National Association of Securities Dealers;
(F) The Registration Statement has become effective under
the Securities Act; any required filing of the Prospectus, and
preliminary prospectus used prior to the filing of the final
prospectus, and any supplements thereto, pursuant to Rule 424(b) have
been made in the
<PAGE>
manner and within the time period required by Rule 424(b); to the
knowledge of counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened, and the Registration
Statement and the Prospectus (other than any preliminary prospectus)
(other than the financial statements and other financial information
and statistical data contained therein, as to which such counsel need
express no opinion) comply as to form in all material respects with
the applicable requirements of the Securities Act, the Exchange Act
and the Trust Indenture Act and the respective rules thereunder;
(G) the statements in the Prospectus, as then amended or
supplemented, under the captions "Description of the Notes" and
"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
"Material United States Federal Income Tax Consequences";
(I) such counsel (1) is of the opinion that each document
filed pursuant to the Exchange Act and incorporated by reference in
the Prospectus, as then amended or supplemented (except for financial
statements and schedules and other financial and statistical data
included therein as to which such counsel need not express any
opinion) complied when so filed as to form in all material respects
with the Exchange Act and the applicable rules and regulations of the
Commission thereunder, (2) nothing has come to such counsel's
attention which has caused it to believe that (except for financial
statements and schedules and other financial and statistical data as
to which such counsel need not express any belief and except for that
part of the Registration Statement that constitutes the Form T-1
heretofore referred to) each part of the Registration Statement, as
then amended, if applicable, when such part became effective,
contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, (3) is of the opinion that the
Registration Statement and Prospectus, as then amended or
supplemented, if applicable (except for financial statements and
schedules and other financial or statistical data included therein as
to which such counsel need not express any opinion) comply as to form
in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (4) nothing has
come to such counsel's attention which causes it to believe that
(except for financial statements and schedules and other financial or
statistical data as to which such counsel need not express any belief)
the Prospectus, as then amended or supplemented, if applicable, as of
the date such opinion is delivered contains any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; PROVIDED that in the case of an
opinion delivered on the Commencement Date or pursuant to Section
5(b), the opinion and belief set forth in clauses 4(b)(i)(I)(3) and
4(b)(i)(I)(4) above shall be deemed not to cover information
concerning an offering of particular Notes to the extent such
information will be set forth in a supplement to the Base Prospectus;
(J) the Company is not and, after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" required to be registered under the Investment
Company Act of 1940, as amended and
<PAGE>
(K) the Company is presently exempt from the provisions of
the Public Utility Holding Company Act of 1935 (except Section 9(a)(2)
thereof).
In rendering such opinion, Palmer & Dodge may rely as to
such matters governed by Florida law upon the opinion of Sheila M.
McDevitt, corporate counsel to the Company (provided Palmer & Dodge shall
state that they believe both they and you are justified in relying upon
such opinion).
(ii) The opinion, dated as of such date, of Sheila M. McDevitt,
corporate counsel to the Company, to the effect that:
(A) Each of the Company's "significant subsidiaries" (as
defined in Rule 1-02(w) of Regulation S-X of the Exchange Act) that is
a Florida corporation is a corporation duly incorporated and validly
existing in good standing under the laws of the state of Florida, and
has full power and authority (corporate and other) to own its
properties and to conduct its business as described in the
Registration Statement and Prospectus; and
(B) All of the issued shares of capital stock of each of the
Company's significant subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable and are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances and claims.
(iii) The opinion, dated as of such date, of Ropes & Gray,
counsel for the Agents, covering such matters as the Agents may
reasonably request, such counsel having received such papers and
information as they may reasonably request to enable them to pass on
such matters.
(c) On the Commencement Date and, if called for by any Purchase
Agreement, on the corresponding Settlement Date, the relevant Agents shall
have received a certificate of the Company, dated the Commencement Date or
such Settlement Date, as the case may be, and signed by an executive officer
of the Company, to the effect set forth in Section 4(a)(iii) and to the
effect that the representations and warranties of the Company contained in
this Agreement are, to the best of his or her knowledge true and correct in
all material respects as of such date and that the Company has complied with
all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before such date.
(d) On the Commencement Date and, if called for by any Purchase
Agreement, on the corresponding Settlement Date, PricewaterhouseCoopers LLP,
independent public accountants, shall have furnished to the relevant Agents a
letter or letters, dated the Commencement Date or such Settlement Date, as
the case may be, in form and substance satisfactory to such Agents containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in or incorporated by reference
into the Prospectus, as then amended or supplemented.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to the relevant Agents such appropriate further
information, certificates and documents as they may reasonably request.
<PAGE>
5. ADDITIONAL AGREEMENTS OF THE COMPANY.
(a) Each time the Registration Statement or Prospectus is amended or
supplemented (other than by an amendment or supplement providing solely for a
change in the interest rates, redemption provisions, amortization schedules or
maturities offered on the Notes or for a change the Agents deem to be
immaterial), upon the reasonable request of the Agent the Company will deliver
or cause to be delivered forthwith to each Agent a certificate of the Company
signed by an executive officer of the Company, dated the date of such amendment
or supplement, as the case may be, in form reasonably satisfactory to the
Agents, of the same tenor as the certificate referred to in Section 4(c)
relating to the Registration Statement or the Prospectus as amended or
supplemented to the time of delivery of such certificate.
(b) Each time the Company furnishes a certificate pursuant to Section
5(a), the Company will furnish or cause to be furnished forthwith to each Agent
a written opinion of independent counsel for the Company. Any such opinion shall
be dated the date of such amendment or supplement, as the case may be, shall be
in a form satisfactory to the Agents and shall be of the same tenor as the
opinion referred to in Section 4(b)(i), but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinion. In lieu of such opinion, counsel last
furnishing such an opinion to an Agent may furnish to each Agent a letter to the
effect that such Agent may rely on such last opinion to the same extent as
though it were dated the date of such letter (except that statements in such
last opinion will be deemed to relate to the Registration Statement and the
Prospectus as amended or supplemented to the time of delivery of such letter.)
(c) Each time the Registration Statement or the Prospectus is amended
or supplemented to set forth amended or supplemental financial information or
such amended or supplemental information is incorporated by reference in the
Prospectus, the Company, upon the reasonable request of the Agent, shall cause
its independent public accountants forthwith to furnish each Agent with a
letter, dated the date of such amendment or supplement, as the case may be, in
form satisfactory to the Agents, of the same tenor as the letter referred to in
Section 4(d), with regard to the amended or supplemental financial information
included or incorporated by reference in the Registration Statement or the
Prospectus as amended or supplemented to the date of such letter.
6. INDEMNITY AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each Agent and
each person, if any, who controls any Agent within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act from and against any
and all losses, claims, damages and liabilities (including, without limitation,
any legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof or the Prospectus (as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto), or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by (A) any such untrue statement or omission or alleged untrue statement
or omission based upon (i) information relating to such Agent furnished to the
Company in writing by such Agent expressly for use therein or (ii) information
in that part of the Registration Statement that constitutes the Form T-1, (B)
failure to deliver the Prospectus as most recently supplemented or amended with
or prior to the written confirmation of such sale or (C) sales made following
notice pursuant to Section 3(b) and prior to delivery of an amended or
supplemented Prospectus.
(b) Each Agent agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Agent, but
only with reference to information relating to such Agent furnished to the
Company in writing by such Agent expressly for use in the Registration Statement
or the Prospectus or any amendments or supplements thereto.
<PAGE>
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either Section 6(a) or 6(b) above, such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Agents that are indemnified parties, in the case of
parties indemnified pursuant to Section 6(a) above, and by the Company, in the
case of parties indemnified pursuant to Section 6(b) above. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) To the extent the indemnification provided for in Section 6(a) or
6(b) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and each Agent on the other
hand from the offering of such Notes or (ii) if the allocation provided by
clause 6(d)(i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
6(d)(i) above but also the relative fault of the Company on the one hand and
each Agent on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and each Agent on the other hand in connection with the offering
of such Notes shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of such Notes (before deducting expenses)
received by the Company bear to the total discounts and commissions received by
each Agent in respect thereof. The relative fault of the Company on the one hand
and each Agent on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by such Agent and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. Each Agent's obligation to contribute pursuant to
this Section 6 shall be several in the proportion that the principal amount of
the Notes the sale of which by or through such Agent gave rise to such losses,
claims, damages or liabilities bears to the aggregate principal amount of the
Notes the sale of which by or through any Agent gave rise to such losses,
claims, damages or liabilities, and not joint.
(e) The Company and the Agents agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by PRO RATA
allocation (even if the Agents were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in Section 6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 6(d) shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6, no Agent
shall be required to contribute any amount in excess of the amount by which the
total price
<PAGE>
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 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:
Banc of America Securities LLC
100 North Tryon Street
Charlotte, North Carolina 28255
Facsimile: (212) 847-6441
Attention: Lily Chang
and a copy to:
Salomon Smith Barney Inc.
390 Greenwich Street
New York, New York 10013
Facsimile: (212) 723-8672
Attention: Howard Hiller
<PAGE>
with 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) 228-1328
Attention: General Counsel
with a copy to:
Palmer & Dodge LLP
One Beacon Street
Boston, Massachusetts 02108
Facsimile: (617) 227-4420
Attention: John Whitlock
10. SUCCESSORS. This Agreement and any Purchase Agreement will inure
to the benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors and controlling persons referred to in
Section 6 and the purchasers of Notes (to the extent expressly provided in
Section 4), and no other person will have any right or obligation hereunder.
11. AMENDMENTS. This Agreement may be amended or supplemented if, but
only if, such amendment or supplement is in writing and is signed by the Company
and each Agent; PROVIDED that the Company may from time to time, on seven days
prior written notice to the Agents but without the consent of any Agent, amend
this Agreement to add as a party hereto one or more additional firms registered
under the Exchange Act, whereupon each such firm shall become an Agent hereunder
on the same terms and conditions as the other Agents that are parties hereto.
The Agents shall sign any amendment or supplement giving effect to the addition
of any such firm as an Agent under this Agreement.
12. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK EXCEPT WITH
RESPECT TO ITS CONFLICTS OF LAWS PRINCIPLES.
14. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
TECO ENERGY, INC.
By: /s/ Sandra W. Callahan
----------------------
Name: Sandra W. Callahan
Title: Vice-President -
Treasurer
<PAGE>
The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.
BANC OF AMERICA SECURITIES LLC
By: Lily Chang
------------------------
Name: Lily Chang
Title: Principal
SALOMON SMITH BARNEY INC.
By: Howard Hiller
------------------------
Name: Howard Hiller
Title: Managing Director
<PAGE>
EXHIBIT A
TECO ENERGY, INC.
Medium-Term Notes
PURCHASE AGREEMENT
[Date]
TECO Energy, Inc.
702 North Franklin Street
Tampa, Florida 33602
Attention: Sandra Callahan
Re: PURCHASE OF MEDIUM-TERM NOTES DUE [MATURITY DATE] (THE
"NOTES")
Reference is made to the Agency Agreement dated September __, 2000
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 at a price of ___% (as a percentage
of the principal amount of the Notes):
PRINCIPAL AMOUNT
NAME OF NOTES
Banc of America Securities LLC $
Salomon Smith Barney Inc.
Total ................................... $
===================
The Settlement Date and time shall be __________. The place of delivery
of the Notes shall be_______.
The Notes shall be in the form of, and shall have the terms set forth
in, the Form of Note attached as Exhibit A hereto.
The provisions of Sections 1, 2(b), 2(c), 3 through 6 and 9 through 13
of the Agency Agreement and the related definitions are incorporated by
reference herein and shall be deemed to have the same force and effect as if set
forth in full herein.
If on the Settlement Date any one or more of the Agents shall fail or
refuse to purchase Notes that it has or they have agreed to purchase on such
date, and the aggregate amount of Notes which such defaulting Agent or Agents
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate amount of the Notes to be purchased on such date, the other Agents
shall be obligated severally in the proportions that the amount of Notes set
forth opposite their respective names above bears to the aggregate amount of
Notes set forth opposite the names of all such non-defaulting Agents, or in such
other proportions Banc of America Securities LLC 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 Banc of America Securities LLC and the Company for the purchase
of such Notes
<PAGE>
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 Banc of America Securities LLC or the Company shall have the
right to postpone the Settlement Date but in no event for longer than seven
days, in order that the required changes, if any, in the Registration Statement
and in the Prospectus or in any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting Agent
from liability in respect of any default of such Agent under this Agreement.
This Agreement is also subject to termination on the terms incorporated
by reference herein. If this Agreement is terminated, the provisions of Sections
3(h), 6, 9, 10 and 13 of the Agency Agreement shall survive for the purposes of
this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Agency Agreement will be required:
(i) the opinions of Palmer & Dodge LLP, counsel for the Company, and
Ropes and Gray, counsel for the Agents, as set forth in Section
4(b)(i) and (ii);
(ii) a certificate of the Company as set forth in Section 4(c);
(iii) a letter or letters from PricewaterhouseCoopers LLP,
independent public accountants, as set forth in Section 4(d); and
(iv) such appropriate further information, certificates and
documents as the Agents may reasonably request.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
BANC OF AMERICA SECURITIES LLC
By:
----------------------------------
Name:
Title:
SALOMON SMITH BARNEY INC.
By:
----------------------------------
Name:
Title:
<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.
The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.
TECO ENERGY INC.
By:
----------------------------------
Name:
Title:
