SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
July 28, 1998
TAMPA ELECTRIC COMPANY
(Exact name of registrant as specified in its charter)
Florida 1-5007 59-0475140
(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) Identification No.)
702 North Franklin Street, Tampa, Florida 33602
(Address of principal executive offices and zip code)
Registrant's telephone number, including area code:
(813) 228-4111
<PAGE>
Item 5. Other Events.
On July 28, 1998, Tampa Electric Company (the "Company") entered into
a Purchase Agreement (the "Purchase Agreement") with Citicorp Securities,
Inc. and Morgan Stanley & Co. Incorporated (collectively, the
"Underwriters") for the sale to the Underwriters of $50 million principal
amount of Remarketed Notes Due 2038 (the "Notes"). The Notes are a portion
of the $200 million principal amount of debt securities (the "Debt
Securities") the Company registered under the Securities Act of 1933, as
amended, on a registration statement (the "Registration Statement") on Form
S-3 (File No. 333-55873). The Purchase Agreement incorporates terms from
an Agency Agreement (the "Agency Agreement") dated July 28, 1998 among the
Company, Citicorp Securities, Inc. and Morgan Stanley & Co. Incorporated,
which also may provide terms for subsequent sales of Debt Securities.
Closing of the transaction is expected to take place on July 31, 1998. The
Notes will be issued and sold pursuant to an Indenture (the "Base
Indenture") dated as of July 1, 1998 between the Company and The Bank of
New York, as Trustee, as amended and supplemented by the First Supplemental
Indenture thereto (the "Supplemental Indenture"). The Purchase Agreement,
the Agency Agreement and the forms of the Supplemental Indenture and the
Note are exhibits to this Current Report on Form 8-K. The form of Base
Indenture was filed as an exhibit to the Registration Statement.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits
(1.1) Purchase Agreement, dated July 28, 1998, among Tampa
Electric Company, Citicorp Securities, Inc. and Morgan
Stanley & Co. Incorporated.
(1.2) Agency Agreement, dated July 28, 1998, among Tampa
Electric Company, Citicorp Securities, Inc. and Morgan
Stanley & Co. Incorporated.
(4.1) Form of First Supplemental Indenture between Tampa
Electric Company and The Bank of New York.
(4.2) Form of Remarketed Note Due 2038.
(5.1) Opinion of Palmer & Dodge LLP regarding validity of the
Notes, dated July 28, 1998.
(23.1) Consent of Palmer & Dodge LLP. Included in Exhibit 5.1.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
July 29, 1998 TAMPA ELECTRIC COMPANY
By: /s/ G.L. Gillette
G.L. Gillette
Vice President-Finance and Chief
Financial Officer
<PAGE>
EXHIBIT INDEX
(1.1) Purchase Agreement, dated July 28, 1998, among Tampa Electric
Company, Citicorp Securities, Inc. and Morgan Stanley & Co.
Incorporated.
(1.2) Agency Agreement, dated July 28, 1998, among Tampa Electric
Company, Citicorp Securities, Inc. and Morgan Stanley & Co.
Incorporated.
(4.1) Form of First Supplemental Indenture between Tampa Electric
Company and The Bank of New York.
(4.2) Form of Remarketed Note Due 2038.
(5.1) Opinion of Palmer & Dodge LLP regarding validity of the Notes,
dated July 28, 1998.
(23.1) Consent of Palmer & Dodge LLP. Included in Exhibit 5.1.
Exhibit 1.1
TAMPA ELECTRIC COMPANY
Remarketed Notes due 2038
PURCHASE AGREEMENT
July 28, 1998
Tampa Electric Company
702 North Franklin Street
Tampa, Florida 33602
Attention: Sandra Callahan
Re: Purchase of Remarketed Notes due 2038 (the "Notes")
Reference is made to the Agency Agreement dated July 28, 1998 between
you and each of us (the "Agency Agreement"). Capitalized terms used herein
and not defined are used as defined in the Agency Agreement.
We agree to purchase, severally and not jointly, the principal amount
of Notes set forth below opposite our names:
Principal
Amount of
Name Notes
Citicorp Securities, Inc. $25,000,000
Morgan Stanley & Co. Incorporated $25,000,000
Total . . . . . . . . . . . . . . . . . . . . . . . . $50,000,000
The Notes shall be in the form of, and shall have the terms set forth
in, the Form of Remarketed Note attached as Exhibit A hereto.
The provisions of Sections 1, 2(b), 2(c), 3 through 6 and 9 through 13
of the Agency Agreement and the related definitions are incorporated by
reference herein and shall be deemed to have the same force and effect as
if set forth in full herein.
If on the Settlement Date any one or more of the Agents shall fail or
refuse to purchase Notes that it has or they have agreed to purchase on
such date, and the aggregate amount of Notes which such defaulting Agent or
Agents agreed but failed or refused to purchase is not more than one-tenth
of the aggregate amount of the Notes to be purchased on such date, the
other Agents shall be obligated severally in the proportions that the
amount of Notes set forth opposite their respective names above bears to
the aggregate amount of Notes set forth opposite the names of all such
non-defaulting Agents, or in such other proportions as Citicorp Securities
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 Citicorp Securities 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 Citicorp Securities 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 & 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 Agents and you.
Very truly yours,
CITICORP SECURITIES, INC.
By: /s/ David A. Chin
David A. Chin
Vice President
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Michael Fusco
Michael Fusco
Vice President
The foregoing Agreement is hereby confirmed and accepted as of the
date first above written.
TAMPA ELECTRIC COMPANY
By: /s/ Sandra W. Callahan
Sandra W. Callahan
Treasurer
Exhibit 1.2
TAMPA ELECTRIC COMPANY
$200,000,000
Medium-Term Note Program
Due from 9 Months to 40 Years from Date of Issue
AGENCY AGREEMENT
July 28, 1998
Citicorp Securities, Inc.
399 Park Avenue
5th Floor, Zone 6
New York, New York 10043
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentleman:
Tampa Electric Company, 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 July 1, 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 Citicorp Securities, Inc. and Morgan
Stanley & Co. Incorporated (individually an "Agent" and collectively the
"Agents") as its agents, subject to Section 8, Section 11 and the Company's
right to sell Notes directly to investors without the use of agents for the
purpose of soliciting and receiving offers to purchase Notes from the
Company by others and, on the basis of the representations and warranties
herein contained, but subject to the terms and conditions herein set forth,
each Agent agrees to use reasonable efforts to solicit and receive offers
to purchase Notes upon terms acceptable to the Company at such times and in
such amounts as the Company shall from time to time specify. In addition,
any Agent may also purchase Notes as principal pursuant to the terms of a
purchase agreement relating to such sale (a "Purchase Agreement") in
accordance with the provisions of Section 2(b) hereof.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to
the Notes. Such registration statement, including the exhibits thereto and
any amendments thereto, is hereinafter referred to as the "Registration
Statement." The Company proposes to file with the Commission from time to
time, pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "Securities Act"), supplements to the prospectus included in the
Registration Statement that will describe certain terms of the Notes. The
prospectus in the form in which it appears in the Registration Statement is
hereinafter referred to as the "Base Prospectus." The term "Prospectus"
means the Base Prospectus together with the prospectus supplement or
supplements (each a "Prospectus Supplement") specifically relating to
Notes, as filed with, or transmitted for filing to, the Commission pursuant
to Rule 424. As used herein, the terms "Base Prospectus" and "Prospectus"
shall include in each case the documents, if any, incorporated by reference
therein. The terms "supplement," "amendment" and "amend" as used herein
shall include all documents deemed to be incorporated by reference in the
Prospectus that are filed subsequent to the date of the Base Prospectus by
the Company with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act").
1. Representations and Warranties. The Company represents and
warrants to and agrees with each Agent as of the Commencement Date (as
defined below), as of each date on which an Agent solicits offers to
purchase Notes from the Company, as of each date on which the Company
accepts an offer to purchase Notes (including any purchase by an Agent
pursuant to a Purchase Agreement), as of each date the Company issues and
delivers Notes, and as of each date the Registration Statement or the Base
Prospectus is amended or supplemented, as follows (it being understood that
such representations, warranties and agreements shall be deemed to relate
to the Registration Statement, the Base Prospectus and the Prospectus, each
as amended or supplemented to each such date):
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus, on the
date it was or is filed with the Commission, (A) complied or will
comply in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder and (B)
did not contain and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(ii) each part of the Registration Statement, when such part became
effective, did not contain and each such part, as amended or
supplemented, if applicable, when so amended or supplemented, will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Registration Statement,
on the date it was declared effective, and the Prospectus, as of the
date of the Base Prospectus, complied and, as amended or supplemented,
if applicable, on the date of such Amendment or Supplement, will
comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder, and
(iv) the Prospectus does not contain and, as amended or supplemented,
if applicable, on the date of such Amendment or Supplement, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that (1) the representations and warranties set
forth in this paragraph do not apply (x) to statements or omissions in
the Registration Statement or the Prospectus based upon information
relating to an Agent furnished to the Company in writing by such Agent
expressly for use therein or (y) to that part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1)
under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), of the Trustee and (2) the representations and
warranties set forth in clauses 1(b)(ii) and 1(b)(iv) above, when made
as of the Commencement Date or as of any date on which an Agent
solicits offers to purchase Notes from the Company or on which the
Company accepts an offer to purchase Notes, shall be deemed not to
cover information concerning an offering of particular Notes to the
extent such information will be set forth in a supplement to the Base
Prospectus;
(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Florida, and has the power and authority (corporate and otherwise) to
own its property and to conduct its business as described in the
Prospectus;
(d) The Company has full power and lawful authority to
authorize, execute and deliver this Agreement and any applicable
Written Purchase Agreement (as hereinafter defined) on the terms and
conditions set forth herein and therein and the Agreement and any
applicable Written Purchase Agreement have been duly authorized,
executed and delivered by the Company;
(e) 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;
(f) 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;
(g) 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 Written 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;
(h) 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;
(i) 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;
(j) 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;
(k) 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
(l) The Company has complied with all provisions of
Section 517.075, Florida Statutes relating to doing business with the
Government of Cuba or with any person or affiliate located in Cuba.
2. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. In connection with an Agent's
actions as agent hereunder, such Agent agrees to use reasonable
efforts to solicit offers to purchase Notes upon the terms and
conditions set forth in the Prospectus as then amended or
supplemented.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase Notes. Upon
receipt of notice from the Company, the Agents will forthwith suspend
solicitations of offers to purchase Notes from the Company until such
time as the Company has advised the Agents that such solicitation may
be resumed. While such solicitation is suspended, the Company shall
not be required to deliver any certificates, opinions or letters in
accordance with Sections 5(a), 5(b) and 5(c); provided, however, that
if the Registration Statement or Prospectus is amended or supplemented
during the period of suspension (other than by an amendment or
supplement providing solely for a change in the interest rates,
redemption provisions, amortization schedules or maturities offered on
the Notes or for a change the Agents deem to be immaterial), no Agent
shall be required to resume soliciting offers to purchase Notes until
the Company has delivered such certificates, opinions and letters as
such Agent may reasonably request.
The Company agrees to pay to each Agent, as consideration for the
sale of each Note resulting from a solicitation made or an offer to
purchase received by such Agent, a commission in the form of a
discount from the purchase price of such Note equal to the percentage
set forth below of the purchase price of such Note:
Commission
Term Rate
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to less than 30 years .750%
30 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
"Written Purchase Agreement").
An Agent's commitment to purchase Notes pursuant to a Purchase
Agreement shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and
shall be subject to the terms and conditions herein set forth. Each
Purchase Agreement shall specify the principal amount of Notes to be
purchased by such Agent pursuant thereto, the maturity date of such
Notes, the price to be paid to the Company for such Notes, the
interest rate and interest rate formula, if any, applicable to such
Notes and other terms of such Notes. Each such Purchase Agreement may
also specify any requirements for officers' certificates, opinions of
counsel and letters from the independent public accountants of the
Company pursuant to Section 4 hereof. A Purchase Agreement may also
specify certain provisions relating to the reoffering of such Notes by
such Agent.
Each Purchase Agreement shall specify the time and place of
delivery of and payment for such Notes. Unless otherwise specified in
a Purchase Agreement, the procedural details relating to the issue and
delivery of Notes purchased by an Agent as principal and the payment
therefor shall be as set forth in the Supplemental Indenture relating
to such Notes. Additional procedural details relating to such Notes
may be set forth in one or more letter agreements between the Company
and the Trustee. Each date of delivery of and payment for Notes to be
purchased by an Agent pursuant to a Purchase Agreement is referred to
herein as a "Settlement Date."
Unless otherwise specified in a Purchase Agreement, if you are
purchasing Notes as principal you may resell such Notes to other
dealers. Any such sales may be at a discount, which shall not exceed
the amount set forth in the Prospectus Supplement relating to such
Notes.
(c) Delivery. The documents required to be delivered by
Section 4 of this Agreement as a condition precedent to each Agent's
obligation to begin soliciting offers to purchase Notes as an agent of
the Company shall be delivered at the office of Ropes & Gray, counsel
for the Agents, not later than 10:00 a.m., New York City time, on the
date hereof, or at such other time and/or place as the Agents and the
Company may agree upon in writing, but in no event later than the day
prior to the earlier of (i) the date on which the Agents begin
soliciting offers to purchase Notes or (ii) the first date on which
the Company accepts any offer by an Agent to purchase Notes pursuant
to a Purchase Agreement. The date of delivery of such documents is
referred to herein as the "Commencement Date."
(d) Obligations Several. The Company acknowledges that the
obligations of the Agents under this Agreement are several and not
joint.
3. Agreements. The Company agrees with each Agent that:
(a) Prior to the termination of the offering of the Notes
pursuant to this Agreement or any Purchase Agreement, the Company will
not file any Prospectus Supplement relating to Notes or any amendment
to the Registration Statement unless the Company has previously
furnished to the Agents copies thereof for their review and will not
file any such proposed supplement or amendment to which the Agents
reasonably object; provided, however, that (i) the foregoing
requirement shall not apply to any of the Company's periodic filings
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act, copies of which filings the Company will cause to be
delivered to the Agents promptly after being transmitted for filing
with the Commission and (ii) any Prospectus Supplement that merely
sets forth the terms or a description of particular Notes shall only
be reviewed and approved by the Agent or Agents offering such Notes.
Subject to the foregoing sentence, the Company will promptly cause
each Prospectus Supplement to be filed with or transmitted for filing
to the Commission in accordance with Rule 424(b) under the Securities
Act. The Company will promptly advise the Agents (i) of the filing of
any amendment or supplement to the Base Prospectus (except that notice
of the filing of an amendment or supplement to the Base Prospectus
that merely sets forth the terms or a description of particular Notes
shall only be given to the Agent or Agents offering such Notes),
(ii) of the filing and effectiveness of any amendment to the
Registration Statement, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the Base Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose, and (v) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company will use reasonable efforts to prevent the issuance of any
such stop order or notice of suspension of qualification and, if
issued, to obtain as soon as practicable the withdrawal thereof. If
the Base Prospectus is amended or supplemented as a result of the
filing under the Exchange Act of any document incorporated by
reference in the Prospectus, no Agent shall be obligated to solicit
offers to purchase Notes so long as it is not reasonably satisfied
with such document.
(b) If, at any time when a prospectus relating to Notes is
required to be delivered under the Securities Act, any event occurs or
condition exists as a result of which the Prospectus, as then amended
or supplemented, would include an untrue statement of a material fact,
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances when the Prospectus, as
then amended or supplemented, is delivered to a purchaser, not
misleading, or if, in the opinion of the Company, it is necessary at
any time to amend or supplement the Prospectus, as then amended or
supplemented, to comply with applicable law, the Company will
immediately notify the Agents by telephone (with confirmation in
writing) to suspend solicitation of offers to purchase Notes and, if
so notified by the Company, the Agents shall forthwith suspend such
solicitation and cease using the Prospectus, as then amended or
supplemented. If the Company shall decide to amend or supplement the
Registration Statement or Prospectus, as then amended or supplemented,
it shall so advise the Agents promptly by telephone (with confirmation
in writing) and, at its expense, shall prepare and cause to be filed
with the Commission, except as otherwise expressly provided, at such
time it deems appropriate, an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
reasonably satisfactory to the Agents, that will correct such
statement or omission or effect such compliance, and will supply such
amended or supplemented Prospectus to the Agents in such quantities as
they may reasonably request. If any documents, certificates, opinions
and letters furnished to the Agents pursuant to Sections 3(f), 5(a),
5(b) and 5(c) in connection with the preparation and filing of such
amendment or supplement are reasonably satisfactory to the Agents,
upon the filing with the Commission of such amendment or supplement to
the Prospectus or upon the effectiveness of an amendment to the
Registration Statement, the Agents will resume the solicitation of
offers to purchase Notes hereunder. Notwithstanding any other
provision of this paragraph, until the distribution of any Notes an
Agent may own as principal has been completed up to a maximum of
fifteen days from the date of the Purchase Agreement, if any event
described above in this paragraph occurs, the Company will, at its own
expense, forthwith prepare and cause to be filed promptly with the
Commission an amendment or supplement to the Registration Statement or
Prospectus, as then amended or supplemented, reasonably satisfactory
to such Agent, will supply such amended or supplemented Prospectus to
such Agent in such quantities as it may reasonably request, and shall
furnish to such Agent pursuant to Sections 3(f), 5(a), 5(b), and 5(c)
such documents, certificates, opinions, and letters as it may request
in connection with the preparation and filing of such amendment or
supplement.
(c) The Company will make generally available to its security
holders an earning statement that satisfies the provisions of Section
11(a) of the Securities Act and the rules and regulations of the
Commission thereunder covering a twelve month period beginning not
later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in Rule 158 under the
Securities Act) of the Registration Statement with respect to each
sale of Notes. If such fiscal quarter is the first fiscal quarter of
the Company's fiscal year, such earning statement shall be made
available not later than 90 days after the close of the period covered
thereby and in all other cases shall be made available not later than
45 days after the close of the period covered thereby.
(d) The Company will furnish to each Agent, without charge, a
conformed copy of the Registration Statement, including exhibits and
all amendments thereto, and as many copies of the Prospectus, any
documents incorporated by reference therein and any supplements and
amendments thereto as such Agent may reasonably request.
(e) The Company will cooperate in the qualification of the Notes
for offer and sale under the securities or Blue Sky laws of such
jurisdictions in the United States as the Agents shall reasonably
request and help to maintain such qualifications for as long as the
Agents shall reasonably request.
(f) The Company shall furnish to the Agents such relevant
documents and certificates of officers of the Company relating to the
business, operations and affairs of the Company, the Registration
Statement, the Base Prospectus, any amendments or supplements thereto,
the Indenture, any Supplemental Indenture, the Notes, this Agreement,
any Purchase Agreement and the performance by the Company of its
obligations hereunder or thereunder as the Agents may from time to
time reasonably request.
(g) The Company shall notify the Agents promptly in writing of
any downgrading, or of its receipt of any notice of any intended or
potential downgrading or of any review for possible change that does
not indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act.
(h) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its
obligations under this Agreement and any Purchase Agreement, including
(i) the preparation and filing of the Registration Statement and the
Prospectus and all amendments and supplements thereto, (ii) the
preparation, issuance and delivery of the Notes, (iii) the fees and
disbursements of the Company's counsel and accountants and of the
Trustee and its counsel, (iv) the qualification of the Notes under
securities or Blue Sky laws in accordance with the provisions of
Section 3(e), including filing fees and the fees and disbursements of
counsel for the Agents in connection therewith and in connection with
the preparation of any Blue Sky Memoranda in an amount not exceeding
$5,000 with respect to any such memorandum, (v) the printing and
delivery to the Agents in quantities as hereinabove stated of copies
of the Registration Statement and all amendments thereto and of the
Prospectus and any amendments or supplements thereto, (vi) any fees
charged by rating agencies for a requested rating of the Notes (the
Company agrees the Agent shall not be obligated to pay bills for
unrequested ratings) (vii) any expenses incurred by the Company in
connection with a "road show" presentation to potential investors and
(ix) the fees and disbursements of counsel for the Agents incurred in
connection with the offering and sale of the Notes, including any
opinions to be rendered by such counsel hereunder, and (x) any
out-of-pocket expenses incurred by the Agents which have been approved
by the Company.
(i) During the period beginning the date of any Purchase
Agreement and continuing to and including the Settlement Date with
respect to such Purchase Agreement (which period shall not exceed 15
days), the Company will not, without such Agent's prior written
consent, offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company or warrants to purchase debt securities
of the Company substantially similar to such Notes (other than (A) the
Notes that are to be sold pursuant to such Purchase Agreement, (B)
Notes previously agreed to be sold by the Company, (C) commercial
paper issued in the ordinary course of business and (D) in connection
with Acquisitions), except as may otherwise be provided in such
Purchase Agreement.
4. Conditions of the Obligations of the Agents. Each Agent's
obligation to solicit offers to purchase Notes as agent of the Company,
each Agent's obligation to purchase Notes pursuant to any Purchase
Agreement, and the obligation of a purchaser to purchase Notes sold through
an Agent as agent will be subject to the accuracy in all material respects
of the representations and warranties on the part of the Company herein, to
the accuracy in all material respects of the statements of the Company's
officers made in each certificate furnished pursuant to the provisions
hereof, and to the performance and observance by the Company in all
material respects of all covenants and agreements herein contained on its
part to be performed and observed (in the case of an Agent's obligation to
solicit offers to purchase Notes, at the time of such solicitation, and, in
the case of an Agent's or other purchaser's obligation to purchase Notes,
at the time the Company accepts the offer to purchase such Notes and at the
time of issuance and delivery) and (in each case) to the following
additional conditions precedent when and as 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
Prospect us, as so amended or supplemented;
(ii) there shall not have occurred any (A) suspension or
material limitation of trading generally on or by, as the case
may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc.,
the Chicago Board Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (B) suspension of trading
of any securities of the Company on any exchange or in any
over-the-counter market, (C) declaration of a general moratorium
on commercial banking activities in New York by either Federal or
New York State authorities or (D) any outbreak or escalation of
hostilities or any change in financial markets or any calamity or
crisis that, in the reasonable judgment of the relevant Agent, is
material and adverse and, in the case of any of the events
described in clauses 4(a)(ii)(A) through 4(a)(ii)(D), such event,
singly or together with any other such event, makes it, in the
reasonable judgment of such Agent, impracticable to market the
Notes on the terms and in the manner contemplated by the
Prospectus, as amended or supplemented at the time of such
solicitation or at the time such offer to purchase was made; and
(iii) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
except (A) in each case described in Section 4(a)(i), 4(a)(ii) or
4(a)(iii) above, as disclosed to the relevant Agent in writing by the
Company prior to such solicitation or, in the case of a purchase of
Notes, as disclosed to the relevant Agent before the offer to purchase
such Notes was made, or (B) in each case described in Section 4(a)(ii)
above, the relevant event shall have occurred and been known to the
relevant Agent before such solicitation or, in the case of a purchase
of Notes, before the offer to purchase such Notes was made.
(b) On the Commencement Date and, if called for by any Purchase
Agreement, on the corresponding Settlement Date, the relevant Agents
shall have received:
(i) The opinion, dated as of such date, of Palmer & Dodge
LLP, outside counsel for the Company, to the effect that:
(A) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the State of Florida has the corporate power and authority
to own its property and to conduct its business as described
in the Prospectus, as then amended or supplemented;
(B) each of this Agreement and any applicable Written
Purchase Agreement has been duly authorized, executed and
delivered by the Company;
(C) the Indenture has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed
and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with its
terms, subject to bankruptcy, insolvency fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles;
(D) the Notes have been duly authorized and, if
executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the
purchasers thereof on the date of such opinion, would be
entitled to the benefits of the Indenture and would be valid
and binding obligations of the Company, enforceable in
accordance with their respective terms, subject to
bankruptcy, insolvency fraudulent transfer, reorganization,
moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general
equity principles;
(E) the execution and delivery by the Company of, and
the performance by the Company of its obligations under,
this Agreement, the Notes, the Indenture and any applicable
Written Purchase Agreement will not contravene any provision
of applicable law or the restated Articles of incorporation
or by-laws of the Company or constitute a default under any
agreement or other instrument binding upon the Company or
any of its subsidiaries that is listed as an exhibit to the
Company's Form 10-K for the year ended December 31, 1997, or
any subsequently filed periodic report, or, to the best of
such counsel's knowledge, any judgment, order or decree of
any governmental body, agency or court having jurisdiction
over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with,
any governmental body or agency is required for the
performance by the Company of its obligations under this
Agreement, the Notes, the Indenture and any applicable
Purchase Agreement, except as has been obtained and except
such as may be required by the securities or Blue Sky laws
of the various states in connection with the offer and sale
of the Notes or the rules of the National Association of
Securities Dealers;
(F) The Registration Statement has become effective
under the Securities Act, and, to the best of the knowledge
of such counsel, no stop order suspending the effectiveness
of the Registration Statement or of any part thereof has
been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the
Securities Act;
(G) the statements in the Prospectus, as then amended
or supplemented, under the captions "Description of the Debt
Securities," insofar as such statements constitute summaries
of the provisions of the Indenture fairly summarize the
matters referred to therein;
(H) such counsel is of the opinion ascribed to it in
the Prospectus, as then amended or supplemented, under the
caption "Certain Federal Income Tax Consequences";
(I) such counsel (1) is of the opinion that each
document filed pursuant to the Exchange Act and incorporated
by reference in the Prospectus, as then amended or
supplemented (except for financial statements and schedules
and other financial and statistical data included therein as
to which such counsel need not express any opinion) complied
when so filed as to form in all material respects with the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, (2) nothing has come to such
counsel's attention which has caused it to believe that
(except for financial statements and schedules and other
financial and statistical data as to which such counsel need
not express any belief and except for that part of the
Registration Statement that constitutes the Form T-1
heretofore referred to) each part of the Registration
Statement, as then amended, if applicable, when such part
became effective, contained any untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading, (3) is of the opinion that the
Registration Statement and Prospectus, as then amended or
supplemented, if applicable (except for financial statements
and schedules and other financial or statistical data
included therein as to which such counsel need not express
any opinion) comply as to form in all material respects with
the Securities Act and the applicable rules and regulations
of the Commission thereunder and (4) nothing has come to
such counsel's attention which causes it to believe that
(except for financial statements and schedules and other
financial or statistical data as to which such counsel need
not express any belief) the Prospectus, as then amended or
supplemented, if applicable, as of the date such opinion is
delivered contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that in
the case of an opinion delivered on the Commencement Date or
pursuant to Section 5(b), the opinion and belief set forth
in clauses 4(b)(i)(I)(3) and 4(b)(i)(I)(4) above shall be
deemed not to cover information concerning an offering of
particular Notes to the extent such information will be set
forth in a supplement to the Base Prospectus.
In rendering such opinion, Palmer & Dodge may rely as to
such matters governed by Florida law upon the opinion of
Sheila M. McDevitt, corporate counsel to the Company (provided
Palmer & Dodge shall state that they believe both they and you
are justified in relying upon such opinion).
(ii) The opinion, dated as of such date, of Ropes & Gray,
counsel for the Agents, covering such matters as the Agents may
reasonably request, such counsel having received such papers and
information as they may reasonably request to enable them to pass
on such matters.
(c) On the Commencement Date and, if called for by any Purchase
Agreement, on the corresponding Settlement Date, the relevant Agents
shall have received a certificate of the Company, dated the
Commencement Date or such Settlement Date, as the case may be, and
signed by an executive officer of the Company, to the effect set forth
in Section 4(a)(iii) and to the effect that the representations and
warranties of the Company contained in this Agreement are, to the best
of his or her knowledge true and correct in all material respects as
of such date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before such date.
(d) On the Commencement Date and, if called for by any Purchase
Agreement, on the corresponding Settlement Date,
PricewaterhouseCoopers LLP, independent public accountants, shall have
furnished to the relevant Agents a letter or letters, dated the
Commencement Date or such Settlement Date, as the case may be, in form
and substance satisfactory to such Agents containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by
reference into the Prospectus, as then amended or supplemented.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to the relevant Agents such appropriate
further information, certificates and documents as they may reasonably
request.
5. Additional Agreements of the Company.
(a) Each time the Registration Statement or Prospectus is
amended or supplemented (other than by an amendment or supplement
providing solely for a change in the interest rates, redemption
provisions, amortization schedules or maturities offered on the Notes
or for a change the Agents deem to be immaterial), upon the reasonable
request of the Agent the Company will deliver or cause to be delivered
forthwith to each Agent a certificate of the Company signed by an
executive officer of the Company, dated the date of such amendment or
supplement, as the case may be, in form reasonably satisfactory to the
Agents, of the same tenor as the certificate referred to in Section
4(c) relating to the Registration Statement or the Prospectus as
amended or supplemented to the time of delivery of such certificate.
(b) Each time the Company furnishes a certificate pursuant to
Section 5(a), the Company will furnish or cause to be furnished
forthwith to each Agent a written opinion of independent counsel for
the Company. Any such opinion shall be dated the date of such
amendment or supplement, as the case may be, shall be in a form
satisfactory to the Agents and shall be of the same tenor as the
opinion referred to in Section 4(b)(i), but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented
to the time of delivery of such opinion. In lieu of such opinion,
counsel last furnishing such an opinion to an Agent may furnish to
each Agent a letter to the effect that such Agent may rely on such
last opinion to the same extent as though it were dated the date of
such letter (except that statements in such last opinion will be
deemed to relate to the Registration Statement and the Prospectus as
amended or supplemented to the time of delivery of such letter.)
(c) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is
incorporated by reference in the Prospectus, the Company, upon the
reasonable request of the Agent, shall cause its independent public
accountants forthwith to furnish each Agent with a letter, dated the
date of such amendment or supplement, as the case may be, in form
satisfactory to the Agents, of the same tenor as the letter referred
to in Section 4(d), with regard to the amended or supplemental
financial information included or incorporated by reference in the
Registration Statement or the Prospectus as amended or supplemented to
the date of such letter.
6. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each Agent
and each person, if any, who controls any Agent within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange
Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof or the Prospectus (as
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or
liabilities are caused by (A) any such untrue statement or omission or
alleged untrue statement or omission based upon (i) information
relating to such Agent furnished to the Company in writing by such
Agent expressly for use therein or (ii) information in that part of
the Registration Statement that constitutes the Form T-1, (B) failure
to deliver the Prospectus as most recently supplemented or amended
with or prior to the written confirmation of such sale or (C) sales
made following notice pursuant to Section 3(b) and prior to delivery
of an amended or supplemented Prospectus.
(b) Each Agent agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the
Company within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to such Agent, but only with reference to
information relating to such Agent furnished to the Company in writing
by such Agent expressly for use in the Registration Statement or the
Prospect us or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to either Section 6(a) or 6(b)
above, such person (the "indemnified party") shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying
party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others
the indemnifying party may designate in such proceeding and shall pay
the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of
both parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. It is understood that
the indemnifying party shall not, in respect of the legal expenses of
any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Agents that are indemnified parties, in
the case of parties indemnified pursuant to Section 6(a) above, and by
the Company, in the case of parties indemnified pursuant to Section
6(b) above. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such
settlement or judgment.
(d) To the extent the indemnification provided for in Section
6(a) or 6(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of
such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the
Company on the one hand and each Agent on the other hand from the
offering of such Notes or (ii) if the allocation provided by clause
6(d)(i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred
to in clause 6(d)(i) above but also the relative fault of the Company
on the one hand and each Agent on the other hand in connection with
the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and each Agent on the other hand in connection with the
offering of such Notes shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of such Notes
(before deducting expenses) received by the Company bear to the total
discounts and commissions received by each Agent in respect thereof.
The relative fault of the Company on the one hand and each Agent on
the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by such Agent and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. Each
Agent's obligation to contribute pursuant to this Section 6 shall be
several in the proportion that the principal amount of the Notes the
sale of which by or through such Agent gave rise to such losses,
claims, damages or liabilities bears to the aggregate principal amount
of the Notes the sale of which by or through any Agent gave rise to
such losses, claims, damages or liabilities, and not joint.
(e) The Company and the Agents agree that it would not be just
or equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation (even if the Agents were treated as
one entity for such purpose) or by any other method of allocation that
does not take account of the equitable considerations referred to in
Section 6(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in
Section 6(d) shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
Section 6, no Agent shall be required to contribute any amount in
excess of the amount by which the total price at which the Notes
referred to in Section 6(d) that were offered and sold to the public
through such Agent exceeds the amount of any damages that such Agent
has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or 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 m ake 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
consumm ated 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 ter mination 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:
Citicorp Securities, Inc.
399 Park Avenue
5th Floor, Zone 6
New York, New York 10043
Facsimile: (212) 793-1717
Attention: Pushkar K. Butani
and to:
Morgan Stanley & Co. Incorporated
1585 Broadway, 2nd Floor
New York, New York 10036
Telephone: (212) 761-4000
Facsimile: (212) 761-0780
Attention: Manager - Continuously Offered Products
with a copy to:
Morgan Stanley & Co. Incorporated
1585 Broadway, 34th Floor
New York, New York 10036
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:
Tampa Electric Company
702 North Franklin Street
Tampa, Florida 33602
Facsimile: (813) 228-4811
Attention: Roger H. Kessel
with a copy to:
Palmer & Dodge LLP
One Beacon Street
Boston, Massachusetts 02108
Facsimile: (617) 227-4420
Attention: John L. Whitlock
10. Successors. This Agreement and any Purchase Agreement will inure
to the benefit of and be binding upon the parties hereto and their
respective successors and the officers, directors and controlling persons
referred to in Section 6 and the purchasers of Notes (to the extent
expressly provided in Section 4), and no other person will have any right
or obligation hereunder.
11. Amendments. This Agreement may be amended or supplemented if,
but only if, such amendment or supplement is in writing and is signed by
the Company and each Agent; provided that the Company may from time to
time, on seven days prior written notice to the Agents but without the
consent of any Agent, amend this Agreement to add as a party hereto one or
more additional firms registered under the Exchange Act, whereupon each
such firm shall become an Agent hereunder on the same terms and conditions
as the other Agents that are parties hereto. The Agents shall sign any
amendment or supplement giving effect to the addition of any such firm as
an Agent under this Agreement.
12. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
except with respect to its conflicts of laws principles.
14. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and you.
Very truly yours,
TAMPA ELECTRIC COMPANY
By: /s/ Sandra W. Callahan
Sandra W. Callahan
Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the
date first above written.
CITICORP SECURITIES, INC.
By: /s/ David A. Chin
David A. Chin
Vice President
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Michael Fusco
Michael Fusco
Vice President
<PAGE>
EXHIBIT A
TAMPA ELECTRIC COMPANY
Medium-Term Notes
PURCHASE AGREEMENT
[Date]
Tampa Electric Company
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 July __, 1998 between
you and each of us (the "Agency Agreement"). Capitalized terms used herein
and not defined are used as defined in the Agency Agreement.
We agree to purchase, severally and not jointly, the principal amount
of Notes set forth below opposite our names:
Principal
Amount of
Name Notes
Citicorp Securities, Inc. $
Morgan Stanley & Co. Incorporated $
Total. . . . . . . . . . . . $
The Notes shall be in the form of, and shall have the terms set forth
in, the Form of Note attached as Exhibit A hereto.
The provisions of Sections 1, 2(b), 2(c), 3 through 6 and 9 through 13
of the Agency Agreement and the related definitions are incorporated by
reference herein and shall be deemed to have the same force and effect as
if set forth in full herein.
If on the Settlement Date any one or more of the Agents shall fail or
refuse to purchase Notes that it has or they have agreed to purchase on
such date, and the aggregate amount of Notes which such defaulting Agent or
Agents agreed but failed or refused to purchase is not more than one-tenth
of the aggregate amount of the Notes to be purchased on such date, the
other Agents shall be obligated severally in the proportions that the
amount of Notes set forth opposite their respective names above bears to
the aggregate amount of Notes set forth opposite the names of all such
non-defaulting Agents, or in such other proportions as Citicorp Securities
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 Citicorp Securities 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 Citicorp Securities 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: ________________. 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,
CITICORP SECURITIES, INC.
By:
Name:
Title:
MORGAN STANLEY & CO. INCORPORATED
By:
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the
date first above written.
TAMPA ELECTRIC COMPANY
By:
Name:
Title:
Exhibit 4.1
TAMPA ELECTRIC COMPANY
and
THE BANK OF NEW YORK
As Trustee
____________
FIRST SUPPLEMENTAL INDENTURE
dated as of July 15, 1998
Supplementing the Indenture
dated as of July 1, 1998
____________
$50,000,000
Remarketed Notes Due 2038
<PAGE>
This First Supplemental Indenture, dated as of the 15th day of July,
1998 between Tampa Electric Company, a corporation duly organized and
existing under the laws of the State of Florida (hereinafter called the
"Company") and having its principal office at TECO Plaza, 702 North
Franklin Street, Tampa, Florida 33602, and The Bank of New York,
(hereinafter called the "Trustee") and having its principal corporate trust
office at 101 Barclay Street, 21st Floor, New York, New York, 10286.
WITNESSETH:
WHEREAS, the Company and the Trustee entered into an Indenture, dated
as of July 1, 1998 (the "Original Indenture"), pursuant to which one or
more series of debt of the Company (the "Securities") may be issued from
time to time; and
WHEREAS, Section 201 of the Original Indenture permits the terms of
any series of Securities to be established in an indenture supplemental to
the Original Indenture; and
WHEREAS, Section 901(7) of the Original Indenture provides that a
supplemental indenture may be entered into by the Company and the Trustee
without the consent of any Holders of the Securities to establish the form
and terms of the Securities of any series; and
WHEREAS, the Company has requested the Trustee to join with it in the
execution and delivery of this First Supplemental Indenture in order to
supplement and amend the Original Indenture by, among other things,
establishing the form and terms of one series of Securities to be known as
the Company's "Remarketed Notes Due 2038" (the "Notes") and amending and
adding certain provisions thereof for the benefit of the Holders of the
Notes; and
WHEREAS, the Company and the Trustee desire to enter into this First
Supplemental Indenture for the purposes set forth in Sections 201 and 901
of the Original Indenture as referred to above; and
WHEREAS, the Company has furnished the Trustee with a Board Resolution
authorizing the execution of this First Supplemental Indenture; and
WHEREAS, all things necessary to make this First Supplemental
Indenture a valid agreement of the Company and the Trustee and a valid
supplement to the Original Indenture have been done,
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
to be issued hereunder by holders thereof, the Company and the Trustee
mutually covenant and agree, for the equal and proportionate benefit of the
respective holders from time to time of the Notes, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions
All capitalized terms that are used herein and not otherwise defined
herein shall have the meanings assigned to them in the Original Indenture.
The Original Indenture together with this First Supplemental Indenture are
hereinafter sometimes collectively referred to as the "Indenture."
"Applicable Spread" shall mean the lowest bid indication, expressed as
a spread (in the form of a percentage or in basis points) above the Base
Rate, obtained by the SPURS Agent on the applicable Determination Date from
the bids quoted by up to five Reference Corporate Dealers for the full
aggregate outstanding principal amount of the Notes at the Dollar Price,
but assuming (i) an issue date equal to the applicable SPURS Remarketing
Date, with settlement on such date without accrued interest, (ii) a
maturity date equal to the next succeeding Interest Rate Adjustment Date of
the Notes, and (iii) a stated annual interest rate, payable semiannually on
each Interest Payment Date, equal to the Base Rate plus the spread bid by
the applicable Reference Corporate Dealer. If fewer than five Reference
Corporate Dealers bid as described above, then the Applicable Spread shall
be the lowest of such bid indications obtained as described above. The
SPURS Interest Rate announced by the SPURS Agent, absent manifest error,
shall be binding and conclusive upon the Beneficial Owners and holders of
the Notes, the Company and the Trustee.
"Base Rate" shall mean the interest rate established by the SPURS
Agent, after consultation with the Company, as the applicable "base rate"
at commencement of the applicable SPURS Mode.
"Beneficial Owner" shall mean, for Notes in book-entry form, the
Person who acquires an interest in the Notes, which is reflected on the
records of the Depositary through its participants.
"Business Day" shall mean any day that is not a day on which banking
institutions in New York, New York, or the state in which the office of the
Trustee at which the Indenture is administered are authorized or obligated
by law or executive order to close; provided, however, that with respect to
Notes in the Long Term Rate Mode or the SPURS Mode as to which LIBOR is an
applicable Interest Rate Basis, such day is also a London Business Day (as
hereinafter defined). "London Business Day" shall mean (i) if the Index
Currency (as hereinafter defined) is other than European Currency Units
("ECU"), any day on which dealings in such Index Currency are transacted in
the London interbank market or (ii) if the Index Currency is ECU, any day
that does not appear as an ECU non-settlement day on the display designated
as "ISDE" on the Reuters Monitor Money Rates Service (or a day so
designated by the ECU Banking Association) or, if ECU non-settlement days
do not appear on the page (and are not so designated), is a day on which
payments in ECU can be settled in the international banking market.
"Calculation Agent" shall have the meaning specified in Section 206(a)
hereof.
"Calculation Date" shall have the meaning specified in Section 206(a)
hereof.
"CD Rate" shall have the meaning specified in Section 206(b)(1)
hereof.
"CMT Rate" shall have the meaning specified in Section 206(b)(2)
hereof.
"Commercial Paper Term Mode" shall mean, with respect to any Note, the
Interest Rate Mode in which the interest rate on such Note is reset on a
periodic basis that shall not be less than one calendar day nor more than
364 consecutive calendar days and interest is paid as provided for such
Interest Rate Mode in Section 204(e)(1) hereof.
"Commercial Paper Term Period" shall mean, with respect to any Note,
the Interest Rate Period in the Commercial Paper Term Mode that is a period
of not less than one nor more than 364 consecutive calendar days, as
determined by the Company or, if not so determined, by the Remarketing
Agent for such Note (in its best judgment in order to obtain the lowest
interest cost for the Note). Each Commercial Paper Term Period will
commence on the Interest Rate Adjustment Date therefor and end on the day
preceding the date specified by such Remarketing Agent as the first day of
the next Interest Rate Period for the Notes. The interest rate for any
Commercial Paper Term Period relating to any Note will be determined not
later than 11:50 a.m., New York City time, on the Interest Rate Adjustment
Date for the Note, which is the first day of each Interest Period for such
Note.
"Comparable Treasury Issues" shall mean the United States Treasury
security or securities selected by the SPURS Agent as having an actual or
interpolated maturity or maturities comparable or applicable to the
remaining term to the next succeeding Interest Rate Adjustment Date of the
Notes being purchased.
"Comparable Treasury Price" shall mean, with respect to the SPURS
Remarketing Date, (a) the offer prices for the Comparable Treasury Issues
(expressed in each case as a percentage of its principal amount) at 11:00
a.m. on the Determination Date, as set forth on Telerate Page 500 (or such
other page as may replace Telerate Page 500) or (b) if such page (or any
successor page) is not displayed or does not contain such offer prices on
such Determination Date, (i) the average of the Reference Treasury Dealer
Quotations for such SPURS Remarketing Date, after excluding the highest and
lowest of such Reference Treasury Dealer Quotations, or (ii) if the SPURS
Agent obtains fewer than four such Reference Treasury Dealer Quotations,
the average of all such Reference Treasury Dealer Quotations. "Telerate
Page 500" shall mean the display designated as "Telerate Page 500" on Dow
Jones Markets (or such other page as may replace Telerate Page 500 on such
service) or such other service displaying the offer prices specified in (a)
above as may replace Dow Jones Markets.
"Composite Quotations" shall mean the daily statistical release
entitled "Composite 3:30 P.M. Quotations for United States Government
Securities" published by the Federal Reserve Bank of New York or any
successor publication.
"Depositary" shall have the meaning specified in Section 203 hereof.
"Designated CMT Telerate Page" shall mean the display on the Dow Jones
Markets (or any successor service) on the page specified in the applicable
Floating Interest Rate Notice (or any other page as may replace such page
on such service for the purpose of displaying Treasury Constant Maturities
as reported in H.15(519)) for the purpose of displaying Treasury Constant
Maturities as reported in H.15(519). If no such page is specified in the
applicable Floating Interest Rate Notice, the page shall be 7052 for the
most recent week.
"Designated CMT Maturity Index" shall mean the original period to
maturity of the United States Treasury securities (either 1, 2, 3, 5, 7,
10, 20 or 30 years) specified in the applicable Floating Interest Rate
Notice with respect to which the CMT Rate will be calculated. If no such
maturity is specified in the applicable Floating Interest Rate Notice, the
Designated CMT Maturity Index shall be 2 years.
"Designated LIBOR Page" shall mean (a) if "LIBOR Reuters" is specified
in the applicable Floating Interest Rate Notice, the display on the Reuters
Monitor Money Rates Service (or any successor service) on the page
specified in such Floating Interest Rate Notice (or any other page as may
replace such page on such service) for the purpose of displaying the London
interbank rates of major banks for the Index Currency, or (b) if "LIBOR
Telerate" is specified in the applicable Floating Interest Rate Notice or
neither "LIBOR Reuters" nor "LIBOR Telerate" is specified in the applicable
Floating Interest Rate Notice as the method for calculating LIBOR, the
display on the Dow Jones Markets (or any successor service) on the page
specified in such Floating Interest Rate Notice (or any other page as may
replace such page on such service) for the purpose of displaying the London
interbank rates of major banks for the Index Currency.
"Determination Date" shall mean the third Business Day immediately
preceding the applicable SPURS Remarketing Date.
"Dollar Price" shall mean the present value determined by the SPURS
Agent, as of the applicable SPURS Remarketing Date, of the Remaining
Scheduled Payments discounted to such SPURS Remarketing Date, on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day
months), at the Treasury Rate.
"DTC Participant" shall mean an account maintained by an institution
with the Depositary through which securities are held by such institution
and accounted for by a book-entry registration and transfer system.
"Federal Funds Rate" shall have the meaning specified in Section
206(b)(3) hereof.
"Floating Interest Rate Notice" shall have the meaning specified in
Section 206(a) hereof. The form of Floating Rate Interest Notice is set
forth as Exhibit C to this First Supplemental Indenture.
"Floating Rate Maximum Interest Rate" and "Floating Rate Minimum
Interest Rate" have the respective meanings specified in Section 206(a)
hereof.
"H.15(519)" shall mean "Statistical Release H.15(519), Selected
Interest Rates" published by the Board of Governors of the Federal Reserve
System or any successor publication.
"Index Currency" shall mean the currency or composite currency
specified in the applicable Floating Interest Rate Notice as to which LIBOR
will be calculated. If no such currency or composite currency is specified
in the applicable Floating Interest Rate Notice, the Index Currency will be
United States dollars.
"Index Maturity" shall mean the period to maturity of the instrument
or obligation with respect to which the related Interest Rate Basis or
Bases will be calculated.
"Initial Interest Rate" shall mean the annual rate of interest
applicable to the Notes during the Initial Interest Rate Period.
"Initial Interest Rate Period" shall mean the period from the Original
Issue Date to, but excluding, Initial SPURS Remarketing Date.
"Initial SPURS Agent" shall mean the SPURS Agent with the option to
purchase the Notes on the Initial SPURS Remarketing Date.
"Initial SPURS Remarketing Date" shall mean the date designated by the
Initial SPURS Agent, after consultation with the Company, upon which the
Initial SPURS Agent may, if it has so elected, remarket the Notes at the
SPURS Interest Rate.
"Interest Determination Date" shall have the meaning specified in
Section 206(a) hereof.
"Interest Payment Date" shall have the meaning set forth in Section
204(c) hereof.
"Interest Rate Adjustment Date" shall mean (i) for a particular
Interest Rate Period in any Interest Rate Mode, each date, which shall be a
Business Day, on which interest and, in the case of a floating interest
rate, the Spread (if any) and the Spread Multiplier (if any) on the Notes
subject thereto commences to accrue at the rate determined and announced by
the applicable Remarketing Agent for such Interest Rate Period, and (ii)
for Notes in the Initial Interest Rate Period, the Original Issue Date.
"Interest Rate Basis" shall have the meaning specified in Section
206(a) hereof.
"Interest Rate Mode" shall mean the mode in which the interest rate on
a Note is being determined, i.e., the Commercial Paper Term Mode, the Long
Term Rate Mode or the SPURS Mode.
"Interest Rate Period" shall mean (a) with respect to any Note in the
Commercial Paper Term Mode or Long Term Rate Mode, the period of time
commencing on the Interest Rate Adjustment Date and extending either (i)
to, but not including, the immediately succeeding Interest Rate Adjustment
Date or (ii) if there is no succeeding Interest Rate Adjustment Date, to,
but not including, the Stated Maturity, and during which such Note bears
interest at a particular fixed interest rate or floating interest rate, and
(b) with respect to any Note in the SPURS Mode, the SPURS Rate Period.
"Interest Reset Date" and "Interest Reset Period" have the respective
meanings specified in Section 206(a) hereof.
"LIBOR" shall have the meaning specified in Section 206(b)(4) hereof.
"Long Term Rate Mode" shall mean, with respect to any Note, the
Interest Rate Mode in which the interest rate on such Note is reset in a
Long Term Rate Period and interest is paid as provided for such Interest
Rate Mode in Section 204(e)(2) hereof.
"Long Term Rate Period" shall mean, with respect to any Note, any
period of more than 364 days and not exceeding the remaining term to the
Stated Maturity of such Note.
"Notification Date" shall mean a Business Day not later than five (5)
Business Days prior to the applicable SPURS Remarketing Date.
"Optional Redemption" shall mean the redemption of any Note prior to
its maturity at the option of the Company as described herein.
"Optional Redemption Price" shall have the meaning specified in
Section 305(c) hereof.
"Original Issue Date" shall mean the date upon which the Notes are
initially issued by the Company, such date to be set forth on the face of
the Note.
"Prime Rate" shall have the meaning specified in Section 206(b)(5)
hereof.
"Principal Financial Center" shall mean the capital city of the
country issuing the Index Currency, except that with respect to United
Stated dollars, Australian dollars, Deutsche marks, Dutch guilders, Italian
lire, Swiss francs and ECUs, the Principal Financial Center shall be the
City of New York, Sydney, Frankfurt, Amsterdam, Milan, Zurich and
Luxembourg, respectively.
"Reference Corporate Dealers" shall mean such Reference Corporate
Dealers as shall be appointed by the SPURS Agent after consultation with
the Company.
"Reference Treasury Dealers" shall mean such Reference Treasury
Dealers as shall be appointed by the SPURS Agent after consultation with
the Company.
"Reference Treasury Dealer Quotation" shall mean, with respect to each
Reference Treasury Dealer and the SPURS Remarketing Date, the offer prices
for the Comparable Treasury Issues (expressed in each case as a percentage
of its principal amount) quoted in writing to the SPURS Agent by such
Reference Treasury Dealer by 3:30 p.m., New York City time, on the
Determination Date.
"Remaining Scheduled Payments" shall mean, with respect to the Notes,
the remaining scheduled payments of the principal thereof and interest
thereon, calculated at the Base Rate only, that would be due after the
SPURS Remarketing Date to and including the next succeeding Interest Rate
Adjustment Date.
"Remarketing Agent" shall mean such agent or agents, including any
standby remarketing agent (each a "Standby Remarketing Agent"), as the
Company may appoint from time to time for the purpose of remarketing of the
Notes, as set forth in the remarketing agreement that the Company shall
enter into prior to the remarketing of such Notes.
"Reuters Screen U.S. PRIME 1 Page" shall mean the display designated
as page "U.S. PRIME 1" on the Reuters Monitor Money Rates Service (or any
successor service) on the U.S. PRIME 1 Page (or such other page as may
replace the U.S. PRIME 1 Page on such service) for the purpose of
displaying prime rates or base lending rates of major United States banks.
"Special Interest Rate" shall have the meaning set forth in Section
205 hereof.
"Special Mandatory Purchase" shall have the meaning specified in
Section 210(a) hereof.
"Spread" shall mean the number of basis points to be added to or
subtracted from the related Interest Rate Basis or Bases applicable to an
Interest Rate Period for such Note.
"Spread Multiplier" shall mean the percentage of the related Interest
Rate Basis or Bases applicable to an Interest Rate Period by which such
Interest Rate Basis or Bases will be multiplied to determine the applicable
interest rate from time to time for an Interest Rate Period.
"SPURS Agent" shall mean the remarketing agent granted the option
under a SPURS Remarketing Agreement to purchase Notes in the SPURS Mode and
subsequently remarket the repurchased Notes at a SPURS Interest Rate.
"SPURS Interest Rate" shall mean the rate equal to the Base Rate
established by a SPURS Agent, after consultation with the Company, at or
prior to the commencement of the applicable SPURS Mode, plus the Applicable
Spread, which will be based on the Dollar Price.
"SPURS Mode" shall mean, with respect to any Note, the Interest Rate
Mode in which such Note shall bear interest and be subject to remarketing
as "Structured PUtable Remarketable Securities" ("SPURS") as provided for
in Article Three hereof.
"SPURS Period" shall mean, with respect to any Note remarketed by the
Initial SPURS Agent on the Initial SPURS Remarketing Date, that portion of
the SPURS Rate Period commencing on the Initial SPURS Remarketing Date up
to, but excluding, the next succeeding Interest Rate Adjustment Date.
"SPURS Rate Period" shall mean an Interest Rate Period for any Note in
the SPURS Mode established by the Company as a period of more than 364 days
and less than the remaining term to the Stated Maturity of such Note;
provided, however, that such Interest Rate Period must end on the day prior
to an Interest Payment Date for such Note. The SPURS Rate Period shall
consist of the period to and excluding the SPURS Remarketing Date and the
period from and including the SPURS Remarketing Date to, but excluding, the
next succeeding Interest Rate Adjustment Date.
"SPURS Remarketing Agreement" shall mean the agreement by and between
the Company and the SPURS Agent dated as of the date commencing the
applicable SPURS Rate Period that sets forth the rights and obligations of
the Company and the SPURS Agent with respect to the remarketing of Notes in
the SPURS Mode.
"SPURS Remarketing Date" shall mean the date designated by the SPURS
Agent, after consultation with the Company, upon which the SPURS Agent may
elect to remarket the Notes at the SPURS Interest Rate.
"Stated Maturity" shall mean July 15, 2038.
"Treasury Bills" shall have the meaning specified in Section 206(b)(6)
hereof.
"Treasury Rate" shall have the meaning specified in Section 206(b)(6)
hereof.
"Weekly Rate Period" shall have the meaning specified in Section
204(e)(1) hereof.
Section 102. Section References
Each reference to a particular section set forth in this First
Supplemental Indenture shall, unless the context otherwise requires, refer
to this First Supplemental Indenture.
ARTICLE TWO
Designation and Terms of the Notes
Section 201. Establishment of Series
There is hereby created a series of Securities to be known and
designated as the "Remarketed Notes Due 2038" (the "Notes"), which shall
rank equally with each other and all other unsecured and unsubordinated
indebtedness of the Company. For the purposes of the Original Indenture,
the Notes shall constitute a single series of Securities.
Section 202. Variations in Terms of Notes
Subject to the terms and conditions set forth in the Original
Indenture and in this First Supplemental Indenture, the terms of any
particular Note may vary from the terms of any other Note as contemplated
by Section 301 of the Original Indenture, and the terms for a particular
Note will be set forth in such Note as delivered to the Trustee or an
Authenticating Agent for authentication pursuant to Section 303 of the
Original Indenture.
Section 203. Amount and Denominations; the Depositary
The aggregate principal amount of Notes that may be issued under this
First Supplemental Indenture is limited to $50,000,000.
The Notes shall be issuable only in fully registered form and will
initially be registered in the name of The Depository Trust Company or its
successor ("Depositary"), or its nominee who is hereby designated as "U.S.
Depositary" under the Original Indenture. The authorized denominations of
Notes shall be $100,000 and integral multiples of $1,000 in excess thereof.
Section 204. Interest Rates, Interest Payment Dates and Interest
Rate Periods
(a) Initial Interest Rate. The Notes shall initially bear interest
at the annual rate set forth in Annex A thereof (the "Initial Interest
Rate") from the Original Issue Date to, but excluding, the Initial SPURS
Remarketing Date.
(b) Interest Rate(s) Subsequent to the Initial Interest Rate. If the
Initial SPURS Agent elects to purchase the Notes as described in Section
304 hereof, the Notes shall be subject to mandatory tender to the Initial
SPURS Agent on the Initial SPURS Remarketing Date, except in the limited
circumstances described in Section 304 hereof, and shall for the SPURS
Period bear interest at the SPURS Interest Rate as described in Section
304(b) hereof.
If the Initial SPURS Agent does not purchase the Notes on the Initial
SPURS Remarketing Date, thereafter each Note shall bear interest at a rate
or rates in a new SPURS Mode, a Long Term Rate Mode or a Commercial Paper
Term Mode if remarketed as provided for in Section 209 hereof, or otherwise
shall be redeemed by the Company as provided for under Section 210(b)
hereof. Each Note may bear interest for designated Interest Rate Periods
in the same or a different Interest Rate Mode from other Notes. The
interest rate for the Notes shall be established periodically by the
applicable Remarketing Agent as provided for in Section 209 hereof. Each
Note will set forth on Annex A thereof the then applicable Interest Rate
Mode of such Note, its interest rate, each Interest Rate Adjustment Date,
the Interest Rate Period and such other information indicated in the form
of Annex A attached to Exhibit A hereto.
(c) Payment of Interest. Interest shall be payable on any Note at
maturity and (i) for the Initial Interest Rate Period, on the dates set
forth on the face thereof; (ii) for any Interest Rate Period in the
Commercial Paper Term Mode, on the Interest Rate Adjustment Date commencing
the next succeeding Interest Rate Period for such Note and on such other
dates (if any) as shall be established upon conversion of such Note to the
Commercial Paper Term Mode or upon remarketing of the Note in a new
Interest Rate Period in the Commercial Paper Term Mode and set forth in
Annex A to the applicable Note; and (iii) in the Long Term Rate Mode or
SPURS Mode, no less frequently than semiannually on such dates as will be
established upon conversion of such Note to the Long Term Rate Mode or the
SPURS Mode (or upon remarketing of the Note in a new Interest Rate Period
in the Long Term Rate Mode or the SPURS Mode, as the case may be) and set
forth in Annex A to the applicable Note in the case of a fixed interest
rate, or as described below in Section 206 in the case of a floating
interest rate, and on the Interest Rate Adjustment Date commencing the next
succeeding Interest Rate Period (each such date, an "Interest Payment
Date"). Such interest will be payable to the holder thereof as of the
related Record Date, which, for any Note (x) during the Initial Interest
Rate Period is the fifteenth calendar day (whether or not a Business Day)
immediately preceding the related Interest Payment Date; (y) in the
Commercial Paper Term Mode, is the Business Day prior to the related
Interest Payment Date; and (z) in the Long Term Rate Mode or the SPURS
Mode, is the fifteenth calendar day (whether or not a Business Day)
immediately preceding the related Interest Payment Date. If any Interest
Payment Date would otherwise be a day that is not a Business Day, such
Interest Payment Date will be postponed to the next succeeding Business
Day, and no interest will accrue on such payment for the period from and
after such Interest Payment Date to the date of such payment on the next
succeeding Business Day.
(d) Computation of Interest. Interest on Notes bearing interest in
the Commercial Paper Term Mode or at a floating interest rate during an
Interest Rate Period in the Long Term Rate Mode or the SPURS Mode will be
computed on the basis of actual days elapsed over 360; provided that, if an
applicable Interest Rate Basis is the CMT Rate or Treasury Rate (each as
defined in Section 206 hereof), interest will be computed on the basis of
actual days elapsed over the actual number of days in the year. Interest
on Notes bearing interest at a fixed rate in the Long Term Rate Mode or
SPURS Mode will be computed on the basis of a year of 360 days consisting
of twelve 30-day months. Interest on Notes at the Initial Interest Rate
will be computed on the basis of a year of 360 days consisting of twelve
30-day months.
(e) Interest Rate Modes. The Interest Rate Period for each interest
rate mode shall be determined in accordance with this subsection (e)
subject to possibility of extension of such period pursuant to standby
remarketing arrangements, if any, as described in Section 209(b) hereof.
(1) Commercial Paper Term Mode. The Interest Rate Period for
any Note in the Commercial Paper Term Mode will be a period of not less
than one nor more than 364 consecutive calendar days (a "Commercial Paper
Term Period"), as determined by the Company (as described in Section 207
below) or, if not so determined, by the Remarketing Agent for such Note (in
its best judgment in order to obtain the lowest interest cost for such
Note). Each Commercial Paper Term Period will commence on the Interest
Rate Adjustment Date therefor and end on the day preceding the date
specified by such Remarketing Agent as the first day of the next Interest
Rate Period for such Note. A "Weekly Rate Period" is a Commercial Paper
Term Period and shall be a period of seven days commencing on any Interest
Rate Adjustment Date and ending on the day preceding the first day of the
next Interest Rate Period for such Note. The interest rate for any
Commercial Paper Term Period relating to a Note shall be determined not
later than 11:50 a.m., New York City time, on the Interest Rate Adjustment
Date for such Note (subject to Section 209 hereof), which is the first day
of each Interest Period for such Note.
(2) Long Term Rate Mode. The Interest Rate Period for any Note
in the Long Term Rate Mode shall be established by the Company (as
described in Section 207 hereof) as a period of more than 364 days and not
exceeding the remaining term to the Stated Maturity of such Note (a "Long
Term Rate Period"). The interest rate, or Spread (if any) and Spread
Multiplier (if any), for any Note in the Long Term Rate Mode shall be
determined not later than 11:50 a.m., New York City time, on the Interest
Rate Adjustment Date for such Note, which is the first day of each Interest
Rate Period for such Note.
(3) SPURS Mode. So long as any Note is in a SPURS Mode during
the period up to, but excluding, the applicable SPURS Remarketing Date, the
provisions set forth in this Article Two are applicable to the remarketing
of Notes generally, but only to the extent expressly provided in Article
Three. The Interest Rate Period for any Note in the SPURS Mode shall be
established by the Company (as described in Section 207 hereof) as a period
of more than 364 days and not exceeding the remaining term to the Stated
Maturity of such Note (a "SPURS Rate Period"). A SPURS Rate Period shall
consist of the period to and excluding the SPURS Remarketing Date and the
period from and including the SPURS Remarketing Date to, but excluding, the
next succeeding Interest Rate Adjustment Date, as described in Article
Three and subject to the conditions therein and otherwise herein described.
The interest rate and, in the case of a floating interest rate, the Spread
(if any), and the Spread Multiplier (if any) to the SPURS Remarketing Date
for any Note in the SPURS Mode shall be determined not later than 11:50
a.m., New York City time, on the Interest Rate Adjustment Date for such
Note, which for the SPURS Mode is the first day of each Interest Rate
Period for such Note.
Section 205. Determination of Interest Rates
The interest rate and, in the case of a floating interest rate, the
Spread (if any), and the Spread Multiplier (if any), for any Note shall be
established by the applicable Remarketing Agent in a remarketing as
provided for in Section 207 hereof or otherwise not later than the first
day of each succeeding Interest Rate Period for such Note, which must be a
Business Day (each an "Interest Rate Adjustment Date"), and will be the
minimum rate of interest and, in the case of a floating interest rate,
Spread (if any) and Spread Multiplier (if any) necessary in the judgment of
such Remarketing Agent to produce a par bid in the secondary market for
such Note on the date the interest rate is established. Such rate will be
effective for the next succeeding Interest Rate Period for such Note
commencing on such Interest Rate Adjustment Date.
In the event that (i) the applicable Remarketing Agent has been
removed or has resigned and no successor has been appointed; or (ii) such
Remarketing Agent has failed to announce the appropriate interest rate,
Spread (if any) or Spread Multiplier (if any), as the case may be, on the
Interest Rate Adjustment Date for any Note for whatever reason; or (iii)
the appropriate interest rate, Spread (if any) or Spread Multiplier (if
any), as the case may be, or Interest Rate Period cannot be determined for
any Note for whatever reason, then the next succeeding Interest Rate Period
for such Note shall be automatically converted to a Weekly Rate Period, and
the rate of interest thereon will be equal to the Federal Funds Rate (such
rate of interest being referred to herein as the "Special Interest Rate").
After any Interest Rate Adjustment Date any Beneficial Owner may
contact the Trustee or the Remarketing Agent in order to be advised of the
interest rate applicable to such Beneficial Owner's remarketed Notes. No
notice of the applicable interest rate will be sent to Beneficial Owners.
The interest rate and other terms announced by the Remarketing Agent,
absent manifest error, shall be binding and conclusive upon the Beneficial
Owners, the Company and the Trustee.
Section 206. Election and Determination of a Floating Interest Rate
by the Company
(a) While any Note bears interest in the Long Term Rate Mode or the
SPURS Mode (with respect to the period from, and including, the Interest
Rate Adjustment Date commencing such period to, but excluding, the SPURS
Remarketing Date), the Company may elect a floating interest rate by
providing notice, which shall be submitted or promptly confirmed in writing
(which includes facsimile or appropriate electronic media), received by the
Trustee and the Remarketing Agent for such Note (the "Floating Interest
Rate Notice") not less than ten (10) days prior to the Interest Rate
Adjustment Date for such Long Term Rate Period or SPURS Rate Period. The
Floating Interest Rate Notice must identify by CUSIP number or otherwise
the portion of the Note to which it relates and state the Interest Rate
Period (or portion thereof, in the case of the SPURS Mode) therefor to
which it relates. Each Floating Interest Rate Notice must also state the
Interest Rate Basis or Bases, the initial Interest Reset Date, the Interest
Reset Period and Interest Reset Dates, the Interest Rate Period and
Interest Payment Dates, the Index Maturity and the Floating Rate Maximum
Interest Rate and/or Floating Rate Minimum Interest Rate, if any. If one
or more of the applicable Interest Rate Bases is LIBOR or the CMT Rate, the
Floating Interest Rate Notice shall also specify the Index Currency and
Designated LIBOR Page or the Designated CMT Maturity Index and Designated
CMT Telerate Page, respectively. A form of Floating Interest Rate Notice
is attached hereto as Exhibit C.
If any Note bears interest at a floating rate in a Long Term Rate
Period or SPURS Rate Period, such Note shall bear interest at the rate
determined by reference to the applicable Interest Rate Basis or Bases (a)
plus or minus the Spread (if any) and/or (b) multiplied by the Spread
Multiplier (if any) specified by the Remarketing Agent, in the case of a
Long Term Rate Period, or the SPURS Agent, in the case of a SPURS Rate
Period. Commencing on the Interest Rate Adjustment Date for such Interest
Rate Period, the rate at which interest on such Note will be payable shall
be reset as of each Interest Reset Date during such Interest Rate Period
specified in the applicable Floating Interest Rate Notice.
The applicable floating interest rate on any Note during any Interest
Rate Period shall be determined by reference to the applicable Interest
Rate Basis or Bases, which may include (i) the CD Rate, (ii) the CMT Rate,
(iii) the Federal Funds Rate, (iv) LIBOR, (v) the Prime Rate, (vi) the
Treasury Rate or (vii) such other Interest Rate Basis or interest rate
formula as may be specified in the applicable Floating Interest Rate Notice
(each, an "Interest Rate Basis").
Unless otherwise specified in the applicable Floating Interest Rate
Notice, the interest rate with respect to each Interest Rate Basis shall be
determined in accordance with the applicable provisions of this Section
206. Except as set forth above or in the applicable Floating Interest Rate
Notice, the interest rate in effect on each day shall be (i), if such day
is an Interest Reset Date, the interest rate determined as of the Interest
Determination Date immediately preceding such Interest Reset Date or (ii),
if such day is not an Interest Reset Date, the interest rate determined as
of the Interest Determination Date immediately preceding the most recent
Interest Reset Date. If any Interest Reset Date would otherwise be a day
that is not a Business Day, such Interest Reset Date shall be postponed to
the next succeeding Business Day, unless LIBOR is an applicable Interest
Rate Basis and such Business Day falls in the next succeeding calendar
month, in which case such Interest Reset Date shall be the immediately
preceding Business Day. In addition, if the Treasury Rate is an applicable
Interest Rate Basis and the Interest Determination Date would otherwise
fall on an Interest Reset Date, then such Interest Reset Date shall be
postponed to the next succeeding Business Day.
The applicable Floating Interest Rate Notice will specify whether the
rate of interest will be reset daily, weekly, monthly, quarterly,
semiannually or annually or on such other specified basis (each, an
"Interest Reset Period") and the dates on which such rate of interest will
be reset (each, an "Interest Reset Date"). Unless otherwise specified in
the applicable Floating Interest Rate Notice, the Interest Reset Dates will
be, in the case of a floating interest rate which resets: (i) daily, each
Business Day; (ii) weekly, the Wednesday of each week (unless the Treasury
Rate is an applicable Interest Rate Basis, in which case the Tuesday of
each week except as described below); (iii) monthly, the third Wednesday of
each month; (iv) quarterly, the third Wednesday of March, June, September
and December of each year; (v) semiannually, the third Wednesday of the two
months specified in the applicable Floating Interest Rate Notice; and (vi)
annually, the third Wednesday of the month specified in the applicable
Floating Interest Rate Notice.
The interest rate applicable to each Interest Reset Period commencing
on the related Interest Reset Date shall be the rate determined as of the
applicable Interest Determination Date. The "Interest Determination Date"
shall mean (i), with respect to the CD Rate, the CMT Rate, the Federal
Funds Rate and the Prime Rate, the second Business Day immediately
preceding the applicable Interest Reset Date; (ii) with respect to LIBOR,
the second London Business Day immediately preceding the applicable
Interest Reset Date, unless the Index Currency is British pounds sterling,
in which case it shall mean the applicable Interest Reset Date; and (iii)
with respect to the Treasury Rate, the day within the week in which the
applicable Interest Reset Date falls upon which day Treasury Bills are
normally auctioned; provided, however, that if an auction is held on the
Friday of the week preceding the applicable Interest Reset Date, the
"Interest Determination Date" shall mean such preceding Friday. If the
interest rate of any Note is a floating interest rate determined with
reference to two or more Interest Rate Bases specified in the applicable
Floating Interest Rate Notice, the Interest Determination Date pertaining
to the Note shall be the most recent Business Day which is at least two
Business Days prior to the applicable Interest Reset Date on which each
Interest Rate Basis shall determinable. Each Interest Rate Basis will be
determined as of such date, and the applicable interest rate shall take
effect on the related Interest Reset Date.
Either or both of the following may also apply to the floating
interest rate on any Note for an Interest Rate Period: (i) a floating rate
maximum interest rate, or ceiling, that may accrue during any Interest
Reset Period (the "Floating Rate Maximum Interest Rate") and (ii) a
floating rate minimum interest rate, or floor, that may accrue during any
Interest Reset Period (the "Floating Rate Minimum Interest Rate"). In
addition to any Floating Rate Maximum Interest Rate that may apply, the
interest rate on any Note shall in no event be higher than the maximum rate
permitted under the law of the State of New York, as the same may be
modified by United States laws of general application.
Except as provided below or in the applicable Floating Interest Rate
Notice, interest will be payable, in the case of floating interest rates
which reset: (i) daily, weekly or monthly, on the third Wednesday of each
month; (ii) quarterly, on the third Wednesday of March, June, September and
December of each year; (iii) semiannually, on the third Wednesday of the
two months of each year specified in the applicable Floating Interest Rate
Notice; and (iv) annually, on the third Wednesday of the month of each year
specified in the applicable Floating Interest Rate Notice and, in each
case, on the Business Day immediately following the applicable Long Term
Rate Period or SPURS Rate Period, as the case may be. If any Interest
Payment Date for the payment of interest at a floating rate (other than
following the end of the applicable Long Term Rate Period or SPURS Rate
Period, as the case may be) would otherwise be a day that is not a Business
Day, such Interest Payment Date will be postponed to the next succeeding
Business Day, except that if LIBOR is an applicable Interest Rate Basis and
such Business Day falls in the next succeeding calendar month, such
Interest Payment Date will be the immediately preceding Business Day.
All percentages resulting from any calculation of floating interest
rates will be rounded to the nearest one hundred thousandth of a percentage
point, with five one-millionths of a percentage point rounded upwards
(e.g., 9.876545% (or .09876545) would be rounded to 9.87655% (or
.0987655)), and all amounts used in or resulting from such calculation will
be rounded, in the case of United States dollars, to the nearest cent or,
in the case of a foreign currency or composite currency, to the nearest
unit (with one-half cent or unit being rounded upwards).
Accrued floating rate interest will be calculated by multiplying the
principal amount of the applicable Note by an accrued interest factor. Such
accrued interest factor will be computed by adding the interest factor
calculated for each day in the applicable Interest Reset Period. Unless
otherwise specified in the applicable Floating Interest Rate Notice, the
interest factor for each such day will be computed by dividing the interest
rate applicable to such day by 360, if an applicable Interest Rate Basis is
the CD Rate, the Federal Funds Rate, LIBOR or the Prime Rate, or by the
actual number of days in the year if an applicable Interest Rate Basis is
the CMT Rate or the Treasury Rate. Unless otherwise specified in the
applicable Floating Interest Rate Notice, if the floating interest rate is
calculated with reference to two or more Interest Rate Bases, the interest
factor will be calculated in each period in the same manner as if only one
of the applicable Interest Rate Bases applied as specified in the
applicable Floating Interest Rate Notice.
For any Note bearing interest at a floating rate, the applicable
Remarketing Agent shall determine the interest rate in effect from the
Interest Rate Adjustment Date for such Note to the initial Interest Reset
Date. The interest rate in effect for each Interest Reset Period thereafter
shall be determined by a calculation agent selected by the Company (a
"Calculation Agent"). Upon request of the Beneficial Owner of a Note,
after any Interest Rate Adjustment Date, the Calculation Agent or the
Remarketing Agent shall disclose the interest rate and, in the case of a
floating interest rate, Interest Rate Basis or Bases, Spread (if any) and
Spread Multiplier (if any), and in each case the other terms applicable to
such Note then in effect and, if determined, the interest rate that will
become effective as a result of a determination made for the next
succeeding Interest Reset Date with respect to such Note. Except as
described herein with respect to a Note earning interest at floating rates,
the Beneficial Owner of a note shall not be entitled to receive notice of
the applicable interest rate, Spread (if any) or Spread Multiplier (if
any).
Unless otherwise specified in the applicable Floating Interest Rate
Notice, the "Calculation Date," if applicable, pertaining to any Interest
Determination Date will be the earlier of (i) the tenth calendar day after
such Interest Determination Date or, if such day is not a Business Day, the
next succeeding Business Day or (ii) the Business Day immediately preceding
the applicable Interest Payment Date or the Stated Maturity, as the case
may be.
(b) Interest Rate Bases for Floating Interest Rates. The basis for
the floating interest rate on any Note during any Interest Rate Period may
include, but is not limited to, any of the following bases (each, an
"Interest Rate Basis"):
(1) If an Interest Rate Basis for any Note is specified in the
applicable Floating Interest Rate Notice as the "CD Rate," the CD Rate
shall mean, with respect to any Interest Determination Date relating to a
Note for which the interest rate is determined with reference to the CD
Rate (a "CD Rate Interest Determination Date"), the rate on such date for
negotiable United States dollar certificates of deposit having the Index
Maturity specified in the applicable Floating Interest Rate Notice as
published in H.15(519) under the heading "CDs (Secondary Market)," or, if
not published by 3:00 p.m., New York City time, on the related Calculation
Date, the rate on such CD Rate Interest Determination Date for negotiable
United States dollar certificates of deposit of the Index Maturity
specified in the applicable Floating Interest Rate notice as published in
Composite Quotations under the heading "Certificates of Deposit." If such
rate is not yet published in either H.15(519) or Composite Quotations
by 3:00 p.m., New York City time, on the related Calculation Date, then the
CD Rate on such CD Rate Interest Determination Date shall be calculated by
the Calculation Agent and shall be the arithmetic mean of the secondary
market offered rates as of 10:00 a.m., New York City time, on such CD Rate
Interest Determination Date, of three leading nonbank dealers in negotiable
United States dollar certificates of deposit in the City of New York (which
may include the Remarketing Agent or its affiliates) selected by the
Calculation Agent, after consultation with the Company, for negotiable
United States dollars certificates of deposit of major United States money
center banks for negotiable certificates of deposit with a remaining
maturity closest to the Index Maturity specified in the applicable Floating
Interest Rate Notice in an amount that is representative for a single
transaction in that market at that time; provided, however, that if the
dealers so selected by the Calculation Agent are not quoting as mentioned
in this sentence, the CD Rate determined as of such CD Rate Interest
Determination Date will be the CD Rate in effect on such CD Rate Interest
Determination Date.
(2) If an Interest Rate Basis for any Note is specified in the
applicable Floating Interest Rate Notice as the "CMT Rate," the CMT Rate
shall mean, with respect to any Interest Determination Date relating to a
Note for which the interest rate is determined with reference to the CMT
Rate (a "CMT Rate Interest Determination Date"), the rate displayed on the
Designated CMT Telerate Page under the caption "...Treasury Constant
Maturities ... Federal Reserve Board Release H.15 ... Mondays Approximately
3:45 P.M.," under the column for the Designated CMT Maturity Index for (i),
if the Designated CMT Telerate Page is 7055, the rate on such CMT Rate
Interest Determination Date and (ii) if the Designated CMT Telerate Page is
7052, the weekly or monthly average, as specified in the Floating Interest
Rate Notice, for the week or the month, as applicable, ended immediately
preceding the week or the month, as applicable, in which the related CMT
Rate Interest Determination Date occurs. If such rate is no longer
displayed on the relevant page or is not displayed by 3:00 p.m., New York
City time, on the related Calculation Date, then the CMT Rate for such CMT
Rate Interest Determination Date shall be such treasury constant maturity
rate for the Designated CMT Maturity Index as published in H.15(519). If
such rate is no longer published or is not published by 3:00 p.m., New York
City time, on the related Calculation Date, then the CMT Rate on such CMT
Rate Interest Determination Date shall be such treasury constant maturity
rate for the Designated CMT Maturity Index (or other United States Treasury
rate for the Designated CMT Maturity Index) for the CMT Rate Interest
Determination Date with respect to such Interest Reset Date as may then be
published by either the Board of Governors of the Federal Reserve System or
the United States Department of the Treasury that the Calculation Agent
determines to be comparable to the rate formerly displayed on the
Designated CMT Telerate Page and published in H.15(519). If such
information is not provided by 3:00 p.m., New York City time, on the
related Calculation Date, then the CMT Rate on the CMT Rate Interest
Determination Date shall be calculated by the Calculation Agent and shall
be a yield to maturity, based on the arithmetic mean of the secondary
market closing offer side prices as of approximately 3:30 p.m., New York
City time, on such CMT Rate Interest Determination Date reported, according
to their written records, by three leading primary United States government
securities dealers each, a "Reference Dealer") in the City of New York
(which may include the Remarketing Agent or its affiliates) selected by the
Calculation Agent after consultation with the Company (from five such
Reference Dealers selected by the Calculation Agent, after consultation
with the Company, and eliminating the highest quotation (or, in the event
of equality, one of the highest) and the lowest quotation (or, in the event
of equality, one of the lowest)), for the most recently issued direct
noncallable fixed rate obligations of the United States ("Treasury Notes")
with an original maturity of approximately the Designated CMT Maturity
Index and a remaining term to maturity of not less than such Designated CMT
Maturity Index minus one year. If the Calculation Agent is unable to
obtain three such Treasury Note quotations, the CMT Rate on such CMT Rate
Interest Determination Date shall be calculated by the Calculation Agent
and shall be a yield to maturity based on the arithmetic mean of the
secondary market offer side prices as of approximately 3:30 p.m., New York
City time, on such CMT Rate Interest Determination Date of three Reference
Dealers in the City of New York (from five such Reference Dealers selected
by the Calculation Agent, after consultation with the Company, and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury Notes with an original maturity of the number of
years that is the next highest to the Designated CMT Maturity Index and a
remaining term to maturity closest to the Designated CMT Maturity Index and
in an amount of at least U.S. $100 million. If three or four (and not
five) of such Reference Dealers are quoting as described above, then the
CMT Rate shall be based on the arithmetic mean of the offer prices obtained
and neither the highest nor the lowest of such quotes shall be eliminated;
provided, however, that if fewer than three Reference Dealers so selected
by the Calculation Agent, after consultation with the Company, are quoting
as mentioned herein, the CMT Rate determined as of such CMT Rate Interest
Determination Date shall be the CMT Rate in effect on such CMT Rate
Interest Determination Date. If two Treasury Notes with an original
maturity as described in the second preceding sentence have remaining terms
to maturity equally close to the Designated CMT Maturity Index, the
Calculation Agent, after consultation with the Company, shall obtain from
five Reference Dealers quotations for the Treasury Note with the shorter
remaining term to maturity.
(3) If an Interest Rate Basis for any Note is specified in the
applicable Floating Interest Rate Notice as the "Federal Funds Rate," the
Federal Funds Rate shall mean, with respect to any Interest Determination
Date relating to a Note for which the interest rate is determined with
reference to the Federal Funds Rate (a "Federal Funds Rate Interest
Determination Date"), the rate on such date for United States dollar
federal funds as published in H.15(519) under the heading "Federal Funds
(Effective)" or, if not published by 3:00 p.m., New York City time, on the
Calculation Date, the rate on such Federal Funds Rate Interest
Determination Date as published in Composite Quotations under the heading
"Federal Funds/Effective Rate." If such rate is not published in either
H.15(519) or Composite Quotations by 3:00 p.m., New York City time, on the
related Calculation Date, then the Federal Funds Rate on such Federal Funds
Rate Interest Determination Date shall be calculated by the Calculation
Agent and shall be the arithmetic mean of the rates for the last
transaction in overnight United States dollar federal funds arranged by
three leading brokers of federal funds transactions in The City of New York
(which may include the Remarketing Agent or its affiliates) selected by the
Calculation Agent after consultation with the Company, prior to 9:00 a.m.,
New York City time, on such Federal Funds Rate Interest Determination Date;
provided, however, that if the brokers so selected by the Calculation Agent
are not quoting as mentioned in this sentence, the Federal Funds Rate
determined as of such Federal Funds Rate Interest Determination Date shall
be the Federal Funds Rate in effect on such Federal Funds Rate Interest
Determination Date.
(4) If an Interest Rate Basis for any Note is specified in the
applicable Floating Interest Rate Notice as "LIBOR," LIBOR shall mean the
rate determined by the Calculation Agent as of the applicable Interest
Determination Date (a "LIBOR Interest Determination Date") in accordance
with the following provisions:
(i) If (a) "LIBOR Reuters" is specified in the applicable
Floating Interest Rate Notice, the arithmetic mean of the offered
rates (unless the Designated LIBOR Page by its terms provides
only for a single rate, in which case such single rate will be
used) for deposits in the Index Currency having the Index
Maturity specified in the applicable Floating Interest Rate
Notice, commencing on the applicable Interest Reset Date, that
appear (or, if only a single rate is required as aforesaid,
appears) on the Designated LIBOR Page as of 11:00 a.m., London
time, on such LIBOR Interest Determination Date, or (b) "LIBOR
Telerate" is specified in the applicable Floating Interest Rate
Notice, or if neither "LIBOR Reuters" nor "LIBOR Telerate" is
specified in the applicable Floating Interest Rate Notice as the
method for calculating LIBOR, the rate for deposits in the Index
Currency having the Index Maturity specified in the applicable
Floating Interest Rate Notice, commencing on such Interest Reset
Date, that appears on the Designated LIBOR Page as of 11:00 a.m.,
London time, on such LIBOR Interest Determination Date. If fewer
than two such offered rates appear, or if no such rate appears,
as applicable, LIBOR on such LIBOR Interest Determination Date
will be determined in accordance with the provisions described in
clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on
which fewer than two offered rates appear, or no rate appears, as
the case may be, on the Designated LIBOR Page as specified in
clause (i) above, the Calculation Agent shall request the
principal London offices of each of four major reference banks in
the London interbank market, as selected by the Calculation
Agent, after consultation with the Company, to provide the
Calculation Agent with its offered quotation for deposits in the
Index Currency for the period of the Index Maturity specified in
the applicable Floating Interest Rate Notice, commencing on the
applicable Interest Reset Date, to prime banks in the London
interbank market at approximately 11:00 a.m., London time, on
such LIBOR Interest Determination Date and in a principal amount
that is representative for a single transaction in such Index
Currency in such market at such time. If at least two such
quotations are so provided, then LIBOR on such LIBOR Interest
Determination Date shall be the arithmetic mean of such
quotations. If fewer than two such quotations are so provided,
then LIBOR on such LIBOR Interest Determination Date shall be the
arithmetic mean of the rates quoted at approximately 11:00 a.m.,
in the applicable Principal Financial Center, on such LIBOR
Interest Determination Date by three major banks in such
Principal Financial Center selected by the Calculation Agent,
after consultation with the Company, for loans in the Index
Currency to leading European banks, having the Index Maturity
specified in the applicable Floating Interest Rate Notice and in
a principal amount that is representative for a single
transaction in such Index Currency in such market at such time;
provided, however, that if the banks so selected by the
Calculation Agent are not quoting as mentioned in this sentence,
LIBOR determined as of such LIBOR Interest Determination Date
shall be LIBOR in effect on such LIBOR Interest Determination
Date.
(5) If an Interest Rate Basis for any Note is specified in the
applicable Floating Interest Rate Notice as the "Prime Rate," Prime Rate
shall mean, with respect to any Interest Determination Date relating to a
Note for which the interest rate is determined with reference to the Prime
Rate (a "Prime Rate Interest Determination Date"), the rate on such date as
such rate is published in H.15(519) under the heading "Bank Prime Loan."
If such rate is not published prior to 3:00 p.m., New York City time, on
the related Calculation Date, then the Prime Rate shall be the arithmetic
mean of the rates of interest publicly announced by each bank that appears
on the Reuters Screen U.S. PRIME 1 Page (as defined below) as such bank's
prime rate or base lending rate as in effect for such Prime Rate Interest
Determination Date. If fewer than four such rates appear on the Reuters
Screen U.S. PRIME 1 Page for such Prime Rate Interest Determination Date,
the Prime Rate shall be the arithmetic mean of the prime rates quoted on
the basis of the actual number of days in the year divided by a 360-day
year as of the close of business on such Prime Rate Interest Determination
Date by four major money center banks (which may include the Calculation
Agent) in the City of New York selected by the Calculation Agent, after
consultation with the Company. If fewer than four such quotations are so
provided, the Prime Rate shall be the arithmetic mean of four prime rates
quoted on the basis of the actual number of days in the year divided by a
360-day year as of the close of business on such Prime Rate Interest
Determination Date as furnished in the City of New York by the major money
center banks, if any, that have provided such quotations and by as many
substitute banks or trust companies (which may include the Calculation
Agent) as necessary in order to obtain four such prime rate quotations,
provided such substitute banks or trust companies are organized and doing
business under the laws of the United States, or any State thereof, have
total equity capital of at least U.S. $500 million and are each subject to
supervision or examination by Federal or State authority, selected by the
Calculation Agent, after consultation with the Company, to provide such
rate or rates; provided, however, that if the banks or trust companies so
selected by the Calculation Agent are not quoting as mentioned in this
sentence, the Prime Rate determined as of such Prime Rate Interest
Determination Date shall be the Prime Rate in effect on such Prime Rate
Interest Determination Date.
(6) If an Interest Rate Basis for any Note is specified in the
applicable Floating Interest Rate Notice as the "Treasury Rate," Treasury
Rate shall mean, with respect to any Interest Determination Date relating
to a Note for which the interest rate is determined with reference to the
Treasury Rate (a "Treasury Rate Interest Determination Date"), as the rate
from the auction held on such Treasury Rate Interest Determination Date
(the "Auction") of direct obligations of the United States ("Treasury
Bills") having the Index Maturity specified in the applicable Floating
Interest Rate Notice, as such rate is published in H.15(519) under the
heading "Treasury Bills-auction average (investment)" or, if not published
by 3:00 p.m., New York City time, on the related Calculation Date, the
auction average rate of such Treasury Bills (expressed as a bond equivalent
on the basis of a year of 365 or 366 days, as applicable, and applied on a
daily basis) as otherwise announced by the United States Department of the
Treasury. In the event that the results of the Auction of Treasury Bills
having the Index Maturity specified in the applicable Floating Interest
Rate Notice are not reported as provided above by 3:00 p.m., New York City
time, on such Calculation Date, or if no such Auction is held, then the
Treasury Rate shall be calculated by the Calculation Agent, and will be a
yield to maturity (expressed as a bond equivalent on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) of the
arithmetic mean of the secondary market bid rates, as of approximately 3:30
p.m., New York City time, on such Treasury Rate Interest Determination
Date, of three leading primary United States government securities dealers
(which may include the Remarketing Agent or its affiliates) selected by the
Calculation Agent, after consultation with the Company, for the issue of
Treasury Bills with a remaining maturity closest to the Index Maturity
specified in the applicable Floating Interest Rate Notice; provided,
however, that if the dealers so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the Treasury Rate determined as of
such Treasury Rate Interest Determination Date shall be the Treasury Rate
in effect on such Treasury Rate Interest Determination Date.
Section 207. Conversion Between Interest Rate Modes by the Company
The Company may, at its option, convert the Interest Rate Mode of the
Notes upon (i) any Interest Rate Adjustment Date, (ii) election of a SPURS
Agent to remarket the Notes, subject to the provisions of Section 305
hereof, or (iii) failure of the SPUR Agent to purchase the Notes on the
applicable SPURS Remarketing Date as described in Section 304 hereof, in
each case in accordance with the procedures provided for in this Section.
(a) Conversion Between Commercial Paper Term Periods. Each Note in a
Commercial Paper Term Period may be remarketed into the same Interest Rate
Period or converted at the option of the Company to a different Commercial
Paper Term Period on any Interest Rate Adjustment Date upon either receipt
by the Remarketing Agent and the Trustee of a notice, which will be
submitted promptly confirmed in writing (which includes facsimile or
appropriate electronic media), from the Company (a "Conversion Notice")
prior to 9:30 a.m., New York City time, or the remarketing of such Note,
whichever occurs later, on such Interest Rate Adjustment Date.
(b) Conversion from the Commercial Paper Term Mode to the Long Term
Rate Mode or the SPURS Mode. Each Note in the Commercial Paper Term Mode
may be converted at the option of the Company to the Long Term Rate Mode or
the SPURS Mode on any Interest Rate Adjustment Date upon receipt not less
than ten (10) days prior to such Interest Rate Adjustment Date by the
Remarketing Agent and the Trustee of a Conversion Notice from the Company.
(c) Conversion Between Long Term Rate Periods or from the Long Term
Rate Mode or the SPURS Mode to the Commercial Paper Term Mode, Long Term
Rate Mode or the SPURS Mode. Each Note in a Long Term Rate Period may be
remarketed in the same Interest Rate Period or converted at the option of
the Company to a different Long Term Rate Period or from the Long Term Rate
Mode to the Commercial Paper Term Mode or the SPURS Mode, or from the SPURS
Mode to a different SPURS Mode or to the Long Term Rate Mode or the
Commercial Paper Term Mode, on any Interest Rate Adjustment Date for such
Note upon receipt by the Trustee and the Remarketing Agent for such Note of
a Conversion Notice from the Company not less than ten (10) days prior to
such Interest Rate Adjustment Dates; provided that the notice required for
conversion from the initial SPURS Mode shall not be required until the
latest of the day after the Initial SPURS Agent notifies the Company that
it will not purchase the Notes for remarketing, the day the Initial SPURS
Agent fails to so purchase the Notes or the day the Company elects to
convert the Notes to a new Interest Rate Mode after the Initial SPURS Agent
has elected to remarket the Notes.
(d) Conversion Notice. Each Conversion Notice must state each Note
to which it relates and the new Interest Rate Mode (if applicable), the new
Interest Rate Period, the date of the applicable conversion (the
"Conversion Date") and, with respect to any Long Term Rate Period, any
optional redemption or repayment terms for each such Note.
(e) Revocation or Change of Conversion Notice or Floating Interest
Rate Notice. The Company may, upon written notice received by the Trustee
and the applicable Remarketing Agent, revoke any Conversion Notice or
Floating Interest Rate Notice or change the Interest Rate Mode to which
such Conversion Notice relates or change any Floating Interest Rate Notice
up to 9:30 a.m., New York City time, on the Conversion Date, subject to the
limitation set forth in subsection (f) of this Section. If the Company
revokes a Conversion Notice or the Trustee and the Remarketing Agent fail
to receive a Conversion Notice from the Company by the specified date in
advance of the Interest Rate Adjustment Date for a Note, the Note shall be
converted automatically to the Weekly Rate Period.
(f) Limitation on Conversion, Change of Conversion Notice or Floating
Interest Rate Notice and Revocation. Notwithstanding the foregoing
subsections (a), (b), (c), (d) and (e), the Company may not, without the
consent of the applicable Remarketing Agent, convert any Note or revoke or
change any Conversion Notice or Floating Interest Rate Notice at or after
the time at which such Remarketing Agent has determined the interest rate,
or Spread (if any) and Spread Multiplier (if any), for any Note being
remarketed (i.e., the time at which such Note has been successfully
remarketed, subject to settlement on the related Interest Rate Adjustment
Date). The Remarketing Agent may advise the Company of indicative rates
from time to time, or at any time upon the request of the Company, prior to
making such determination of the interest rate, Spread or Spread
Multiplier, as the case may be.
Section 208. Automatic Tender of Notes on the Interest Rate
Adjustment Date
Each Note shall be automatically tendered for purchase, or deemed
tendered for purchase, on each Interest Rate Adjustment Date relating
thereto. Notes shall be purchased or redeemed on the Interest Rate
Adjustment Date relating thereto as described in Section 209 or 210 hereof.
Section 209. Remarketing
(a) Appointment of Remarketing Agent. In connection with the
conversion by the Company of any Note as set forth in Section 207 hereof,
the Company shall enter into a remarketing agreement with a Remarketing
Agent on or prior to the remarketing of such Notes, which Remarketing Agent
shall be responsible for the remarketing of such Notes. When any Note is
tendered under Section 208 hereof to the Remarketing Agent for remarketing,
the Remarketing Agent will use its reasonable efforts to remarket such Note
on behalf of the Beneficial Owner thereof at a price equal to 100% of the
principal amount thereof. The Remarketing Agent may purchase tendered
Notes for its own account in a remarketing, but will not be obligated to do
so. The Company may offer to purchase Notes in a remarketing, provided
that the interest rate established with respect to Notes in such
remarketing is not different from the interest rate that would have been
established if the Company had not purchased such Notes. Any Notes for
which the Company shall have given a notice of redemption to the Trustee
and the Remarketing Agent will not be considered in a remarketing.
(b) Remarketing Procedures. With respect to each Note for which
there is to be established an interest rate from time to time by a
Remarketing Agent responsible for the remarketing thereof, such interest
rate shall be set in accordance with the procedures of paragraphs (i) and
(ii) below.
(i) Determination of Interest Rate. By 11:00 a.m., New York
City time, on the Interest Rate Adjustment Date for any Note, the
applicable Remarketing Agent will determine the interest rate for such Note
being remarketed to the nearest one hundred thousandth (0.00001) of one
percent per annum for the next Interest Rate Period in the case of a fixed
interest rate, and the Spread (if any) and Spread Multiplier (if any) in
the case of a floating interest rate; provided, that between 11:00 a.m.,
New York City time, and 11:50 a.m., New York City time, the Remarketing
Agent and the Standby Remarketing Agent, if any, will use their reasonable
efforts to determine the interest rate for any Notes not successfully
remarketed as of the applicable deadline specified in this paragraph. In
determining the applicable interest rate for such Note and other terms,
such Remarketing Agent will, after taking into account market conditions as
reflected in the prevailing yields on fixed and variable rate taxable debt
securities, (i) consider the principal amount of all Notes tendered or to
be tendered on such date and the principal amount of such Notes prospective
purchasers are or may be willing to purchase and (ii) contact, by telephone
or otherwise, prospective purchasers and ascertain the interest rates
therefor at which they would be willing to hold or purchase such Notes.
(ii) Notification of Results; Settlement. By 12:30 p.m., New
York City time, on the Interest Rate Adjustment Date of any Notes, the
applicable Remarketing Agent will notify the Company and the Trustee in
writing (which may include facsimile or other electronic transmission), of
(i) the interest rate or, in the case of a floating interest rate, the
initial interest rate, the Spread and Spread Multiplier and the initial
Interest Reset Date, applicable to such Notes for the next Interest Rate
Period, (ii) the Interest Rate Adjustment Date, (iii) the Interest Payment
Dates for any Notes in the Commercial Paper Term Mode (if other than the
Interest Rate Adjustment Date), the Long Term Rate Mode or the SPURS Mode,
(iv) the optional redemption terms, if any, and early remarketing terms, if
any, in the case of a remarketing into a Long Term Rate Period, (v) the
aggregate principal amount of tendered Notes and (vi) the aggregate
principal amount of such tendered Notes that such Remarketing Agent was
able to remarket, at a price equal to 100% of the principal amount thereof
plus accrued interest, if any. Immediately after receiving such notice
and, in any case, not later than 1:30 p.m., New York City time, the Trustee
will transmit such information and any other settlement information
required by the Depositary, to the extent such information has been
provided to the Trustee, to the Depositary in accordance with the
Depositary's procedures as in effect from time to time.
By telephone at approximately 1:00 p.m., New York City time, on such
Interest Rate Adjustment Date, the applicable Remarketing Agent will advise
each purchaser of Notes (or the DTC Participant of each such purchaser who
it is expected in turn will advise such purchaser) of the principal amount
of such Notes that such purchaser is to purchase.
Each purchaser of Notes in a remarketing will be required to give
instructions to its DTC Participant to pay the purchase price therefor in
same day funds to the applicable Remarketing Agent against delivery of the
principal amount of such Notes by book-entry through the Depositary by 3:00
p.m., New York City time, on the Interest Rate Adjustment Date.
All tendered Notes will be automatically delivered to the account of
the Trustee (or such other account meeting the requirements of the
Depositary's procedures as in effect from time to time), by book-entry
through the Depositary against payment of the purchase price or redemption
price therefor, on the Interest Rate Adjustment Date relating thereto.
The applicable Remarketing Agent will make, or cause the Trustee to
make, payment to the DTC Participant of each tendering Beneficial Owner of
Notes subject to a remarketing, by book-entry through the Depositary by the
close of business on the Interest Rate Adjustment Date against delivery
through the Depositary of such Beneficial Owner's tendered Notes, of the
purchase price for tendered Notes that have been sold in the remarketing.
If any such Notes were purchased pursuant to a Special Mandatory Purchase,
subject to receipt of funds from the Company or, if applicable, an
institution providing credit support, as the case may be, the Trustee will
make such payment of the purchase price of such Notes plus accrued
interest, if any, to such date.
The transactions described above for a remarketing of any Notes will
be executed on the Interest Rate Adjustment Date for such Notes through the
Depositary in accordance with the procedures of the Depositary, and the
accounts of the respective the DTC Participants will be debited and
credited and such Notes delivered by book-entry as necessary to effect the
purchases and sales thereof, in each case as determined in the related
remarketing.
Except as otherwise set forth in Section 210 hereof, any Notes
tendered in a remarketing will be purchased solely out of the proceeds
received from purchasers of such Notes in such remarketing, and none of the
Trustee, the applicable Remarketing Agent, any Standby Remarketing Agent or
the Company will be obligated to provide funds to make payment upon any
Beneficial Owner's tender in a remarketing.
Although tendered Notes will be subject to purchase by a Remarketing
Agent in a remarketing, such Remarketing Agent and any Standby Remarketing
Agent will not be obligated to purchase any such Notes.
The settlement and remarketing procedures described above, including
provisions for payment by purchasers of tendered Notes or for payment to
selling Beneficial Owners of tendered Notes, may be modified to the extent
required by the Depositary. In addition, each Remarketing Agent may, in
accordance with the terms of the Indenture, modify the settlement and
remarketing procedures set forth above in order to facilitate the
settlement and remarketing process.
As long as the Depositary's nominee holds the certificates
representing the Notes in the book-entry system of the Depositary, no
certificates for such Notes will be delivered by any selling Beneficial
Owner to reflect any transfer of Notes effected in any remarketing.
The Trustee shall confirm to the Depositary the interest rate for the
following Interest Rate Period in accordance with the Depositary's
procedures as in effect from time to time.
The interest rate announced by the applicable Remarketing Agent,
absent manifest error, shall be binding and conclusive upon the Beneficial
Owners, the Company and the Trustee.
(c) Failed Remarketing. Notes not successfully remarketed will be
subject to Special Mandatory Purchase by the Company as set forth in
Section 210 hereof.
Section 210. Purchase and Redemption of Notes
(a) Special Mandatory Purchase. Subject to certain exceptions, if on
any Interest Rate Adjustment Date for any Notes, the applicable Remarketing
Agent and the applicable Standby Remarketing Agent(s) have not remarketed
all such Notes, the Notes that have not been remarketed are subject to
Special Mandatory Purchase (a "Special Mandatory Purchase") by the Company.
The Company is obligated to pay all accrued and unpaid interest, if any, on
unremarketed Notes to such Interest Rate Adjustment Date. Payment of the
principal amount of unremarketed Notes by the Company, and payment of
accrued and unpaid interest, if any, by the Company, will be made by
deposit of same-day funds with the Trustee (or such other account meeting
the requirements of the Depositary's procedures as in effect from time to
time) irrevocably in trust for the benefit of the Beneficial Owners of
Notes subject to Special Mandatory Purchase by 3:00 p.m., New York City
time, on such Interest Rate Adjustment Date.
Failure by the Company to purchase Notes pursuant to a Special
Mandatory Purchase will constitute an Event of Default under the Indenture
as set forth in Section 401 hereof in which event the date of such failure
shall constitute a date of Maturity for such Notes and the principal
thereof may be declared due and payable in the manner and with the effect
provided in the Indenture. Following such failure to pay pursuant to a
Special Mandatory Purchase, such Notes will bear interest at the Special
Interest Rate as provided for in Section 205 hereof.
(b) Optional Redemption on any Interest Rate Adjustment Date. Each
Note will be subject to redemption at the option of the Company in whole or
in part on any Interest Rate Adjustment Date relating thereto without
notice to the holders thereof at a redemption price equal to 100% of the
principal amount thereof.
(c) Redemption While Notes are in the Long Term Rate Mode. Any Notes
in the Long Term Rate Mode are subject to redemption at the option of the
Company at the times and upon the terms specified at the time of conversion
to or within such Long Term Rate Mode.
(d) Allocation. Except in the case of a Special Mandatory Purchase,
if the Notes are to be redeemed in part, the Depositary, after receiving
notice of redemption specifying the aggregate principal amount of Notes to
be so redeemed, will determine by lot (or otherwise in accordance with the
procedures of the Depositary) the principal amount of such Notes to be
redeemed from the account of each DTC Participant. After making its
determination as described above, the Depositary will give notice of such
determination to each DTC Participant from whose account such Notes are to
be redeemed. Each such DTC Participant, upon receipt of such notice will
in turn determine the principal amount of Notes to be redeemed from the
accounts of the Beneficial Owners of such Notes for which it serves as DTC
Participant, and give notice of such determination to the Remarketing
Agent.
Section 211. Form and Other Terms of the Notes
(a) Attached hereto as Exhibit A is the form of Note, which form is
hereby established as the form in which Notes may be issued bearing
interest at the Initial Interest Rate or in the Commercial Paper Term Mode,
the Long Term Rate Mode or the SPURS Mode. Annex A to Exhibit A is deemed
to be a part of such Note and such Annex may be changed upon the mutual
agreement of the Company and the Trustee to reflect changes occasioned by
remarketings.
(b) Subject to (a) above, any Note may be issued in such other form
as may be provided by, or not inconsistent with, the terms of the Original
Indenture and this First Supplemental Indenture.
ARTICLE THREE
The SPURS Mode
Section 301. Applicability of Article
The provisions of this Article Three shall apply to any Note in the
SPURS Mode. To the extent that any provision of this Article Three
conflicts with any provision of Article Two, the provisions set forth in
this Article Three shall govern.
Section 302. Initial SPURS Rate Period
The Notes shall be issued initially in a SPURS Mode with respect to
which the Company shall have on the Original Issue Date entered into a
SPURS Remarketing Agreement. With respect to Notes within a SPURS Rate
Period commencing on the Original Issue Date, references in this Article
Three to (i) the SPURS Agent and SPURS Remarketing Date shall mean the
Initial SPURS Agent and the Initial SPURS Remarketing Date and (ii) the
Interest Rate Adjustment Date upon which the SPURS Rate Period commences
shall mean the Original Issue Date.
Section 303. Interest to SPURS Remarketing Date
Each Note in the SPURS Mode will bear interest at the annual interest
rate established by the SPURS Agent from, and including, the Interest Rate
Adjustment Date commencing the Interest Rate Period for the SPURS Mode to,
but excluding, the SPURS Remarketing Date. Such interest rate will be the
minimum rate of interest and, in the case of a floating interest rate,
Spread (if any) and Spread Multiplier (if any) necessary in the judgment of
such SPURS Agent to produce a par bid in the secondary market for such Note
on the date the interest rate is established. The designated SPURS
Remarketing Date shall be an Interest Payment Date within such Interest
Rate Period.
Section 304. Tender to and Remarketing by the SPURS Agent
The obligations of the SPUR Agent set forth herein shall be performed
under the applicable SPURS Remarketing Agreement.
(a) Mandatory Tender. Provided that the SPURS Agent gives notice to
the Company and the Trustee on or before the Notification Date of its
intention to purchase the Notes for remarketing, each Note will be
automatically tendered, or deemed tendered, to the SPURS Agent for
remarketing at the SPURS Interest Rate on the SPURS Remarketing Date,
except in the circumstances described in subsection (b)(2) and Section 305
below with regard to failure of the SPURS Agent to purchase the Notes. The
purchase price for the tendered Notes to be paid by the SPURS Agent will
equal 100% of the principal amount thereof. When the Notes are tendered
for remarketing, the SPURS Agent may remarket the Notes for its own account
at varying prices to be determined by the SPURS Agent at the time of each
sale. From and including the SPURS Remarketing Date to, but excluding, the
next succeeding Interest Rate Adjustment Date, the Notes will bear interest
at the SPURS Interest Rate. If the SPURS Agent elects to remarket the
Notes, the obligation of the SPURS Agent to purchase the Notes on the SPURS
Remarketing Date is subject to the conditions set forth in the applicable
SPURS Remarketing Agreement.
(b) Remarketing. The remarketing of the notes purchased by SPURS
Agent under the SPURS Remarketing Agreement shall be carried out in
accordance with the following procedures:
(1) The SPURS Interest Rate. Subject to the SPURS Agent's
election to remarket the Notes as provided in subsection (a) above, the
SPURS Interest Rate shall be determined by the SPURS Agent by 3:30 p.m.,
New York City time, on the third Business Day immediately preceding the
SPURS Remarketing Date (the "Determination Date") to the nearest one
hundred-thousandth (0.00001) of one percent per annum and will be equal to
the Base Rate established by the SPURS Agent, after consultation with the
Company, at or prior to the commencement of the SPURS Mode (the "Base
Rate"), plus the Applicable Spread, which will be based on the Dollar Price
of the Notes.
(2) Notification of Results; Settlement. Provided the SPURS
Agent has previously notified the Company and the Trustee on the
Notification Date of its intention to purchase all tendered Notes on the
SPURS Remarketing Date, the SPURS Agent will notify the Company, the
Trustee and the Depositary by telephone, confirmed in writing, by 4:00
p.m., New York City time, on the Determination Date, of the SPURS Interest
Rate.
All of the tendered Notes will be automatically delivered to the
account of the Trustee, by book-entry through the Depositary pending
payment of the purchase price therefor, on the SPURS Remarketing Date.
In the event that the SPURS Agent purchases the tendered Notes on the
SPURS Remarketing Date, the SPURS Agent will make or cause the Trustee to
make payment to the DTC Participant of each tendering Beneficial Owner of
Notes, by book-entry through the Depositary by the close of business on the
SPURS Remarketing Date against delivery through the Depositary of such
Beneficial Owner's tendered Notes. If the SPURS Agent does not purchase
all of the Notes on the SPURS Remarketing Date, the Company may attempt to
convert the Notes to a new Interest Rate Mode, such interest rate to be
determined as provided for in Section 205 hereof, and settlement will be
effected as described in this Section 304(b). In any case, the Company
will make or cause the Trustee to make payment of interest to each
Beneficial Owner of Notes due on the SPURS Remarketing Date by book-entry
through the Depositary by the close of business on the SPURS Remarketing
Date.
The transactions in this subsection (b)(2) hereof will be executed on
the SPURS Remarketing Date through the Depositary in accordance with the
procedures of the Depositary, and the accounts of the respective DTC
Participants will be debited and credited and the Notes delivered by
book-entry as necessary to effect the purchases and sales thereof.
Transactions involving the sale and purchase of Notes remarketed by
the SPURS Agent on and after a SPURS Remarketing Date will settle in
immediately available funds through the Depositary's Same-Day Funds
Settlement System.
The tender and settlement procedures described above, including
provisions for payment by purchasers of Notes in the remarketing or for
payment to selling Beneficial Owners of tendered Notes, may be modified to
the extent required by the Depositary or to the extent required to
facilitate the tender and remarketing of Notes in certificated form, if the
book-entry system is no longer available for the Notes at the time of the
remarketing. In addition, the SPURS Agent may, in accordance with the
terms of the Indenture, modify the tender and settlement procedures set
forth above in order to facilitate the tender and settlement process.
As long as the Depositary's nominee holds the certificates
representing any Notes in the book-entry system of the Depositary, no
certificates for such Notes will be delivered by any selling Beneficial
Owner to reflect any transfer of such Notes effected in the remarketing.
Section 305. Conversion or Redemption Following Election by the
SPURS Agent to Remarket
(a) If the SPURS Agent elects to remarket the Notes on the SPURS
Remarketing Date, the Notes will be subject to mandatory tender to the
SPURS Agent for remarketing on such date, in each case subject to the
conditions set forth in Section 304 hereof, and to the Company's right to
either convert the Notes to a new Interest Rate Mode on the SPURS
Remarketing Date or to redeem the Notes from the SPURS Agent, in each case
as described in the next sentence. The Company will notify the SPURS Agent
and the Trustee, not later than the Business Day immediately preceding the
Determination Date, if the Company irrevocably elects to exercise its right
to either convert the Notes to a new Interest Rate Mode, or to redeem the
Notes in whole, but not in part, from the SPURS Agent at the Optional
Redemption Price, in each case on the SPURS Remarketing Date.
(b) In the event that the Company irrevocably elects to convert the
Notes to a new Interest Rate Mode, then as of the SPURS Remarketing Date
the Notes will cease to be in the SPURS Mode, the SPURS Remarketing Date
will constitute an Interest Rate Adjustment Date, and the Notes shall be
subject to remarketing on such date by a Remarketing Agent appointed in the
Commercial Paper Term Mode or the Long Term Rate Mode or a new SPURS Mode
established in accordance with the procedures set forth in Section 207
hereof; provided that, in such case, the notice period required for
conversion shall be the period commencing on the Determination Date. In
such case, the Company shall pay to the SPURS Agent the excess of the
Dollar Price of the Notes over 100% of the principal amount of the Notes in
same-day funds by wire transfer to an account designated by the SPURS Agent
on the SPURS Remarketing Date.
(c) In the event that the Company irrevocably elects to redeem the
Notes, the "Optional Redemption Price" shall be the greater of either (i)
100% of the principal amount of the Notes or (ii) the Dollar Price, plus in
either case accrued and unpaid interest from the SPURS Remarketing Date on
the principal amount being redeemed to the date of redemption. If the
Company elects to redeem the Notes, it shall pay the redemption price
therefor in same-day funds by wire transfer to an account designated by the
SPURS Agent on the SPURS Remarketing Date.
(d) If notice has been given as provided in the Indenture and funds
for the redemption of any Notes called for redemption shall have been made
available on the redemption date referred to in such notice, such Notes
shall cease to bear interest on the date fixed for such redemption
specified in such notice and the only right of the SPURS Agent from and
after the redemption date shall be to receive payment of the Optional
Redemption Price upon surrender of such Notes in accordance with such
notice.
ARTICLE FOUR
Additional Events of Default with Respect to the Notes
Section 401. Definition
All of the events specified in clauses (1), (2) and (4) through (6) of
Section 501(a) of the Original Indenture shall be "Events of Default" with
respect to the Notes. In addition, the following event that shall have
occurred and be continuing shall be an additional Event of Default with
respect to each series of Notes: (7) default in the payment of the
purchase price with respect to the Special Mandatory Purchase on the
applicable Interest Rate Adjustment Date in accordance with Section 210(a)
hereof.
ARTICLE FIVE
Authentication and Delivery of the Notes
Section 501. Authentication and Delivery
As provided in and pursuant to Section 303 of the Original Indenture,
each time that the Company delivers Notes to the Trustee or Authenticating
Agent for authentication, the Company shall deliver a Supplemental Company
Order in the form of Exhibit B to this First Supplemental Indenture for the
authentication and delivery of such Notes and the Trustee or such
Authenticating Agent shall authenticate and deliver such Notes.
ARTICLE SIX
Supplemental Indentures
Section 601. Effect On Original Indenture
The First Supplemental Indenture is a supplement to the Original
Indenture. As supplemented by this First Supplemental Indenture, the
Original Indenture is in all respects ratified, approved and confirmed, and
the Original Indenture and this First Supplemental Indenture shall together
constitute one and the same instrument.
ARTICLE SEVEN
Miscellaneous
Section 701. Counterparts
This First Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute by one and the same
instrument.
Section 702. Recitals
The recitals contained herein shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of
this First Supplemental Indenture.
Section 703. Governing Law
This First Supplemental Indenture shall be governed by and construed
in accordance with the laws of the jurisdiction that govern the Original
Indenture and its construction.
[The balance of this page intentionally left blank.]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed and their respective corporate
seals to be hereunto affixed and attested, all as of the date and year
first written above.
TAMPA ELECTRIC COMPANY
By:
Girard F. Anderson
Chairman of the Board and
Chief Executive Officer
[Corporate Seal]
THE BANK OF NEW YORK, AS TRUSTEE
By:
Name:
Title:
[Corporate Seal]
<PAGE>
State of )
) SS.:
County of )
On the __________ day of ________________, 1998 before me personally
came Girard F. Anderson, to me known, who, being by me duly sworn, did
depose and say that he is Chairman of the Board and Chief Executive Officer
of TAMPA ELECTRIC COMPANY, one of the corporations described in and which
executed the foregoing instrument; that he 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 signed his name thereto by like authority.
Notary Public
State of New York )
) SS.:
County of New York )
On the ________ day of __________________ 1998 before me personally
came ______________________________________ to me known, who, being by me
duly sworn, did depose and say that he/she is ____________________________
of THE BANK OF NEW YORK, one of the corporations described in and which
executed the foregoing instrument; that he/she knows the seal of said
corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he/she signed his/her names thereto by like
authority.
Notary Public
<PAGE>
EXHIBIT A
FORM OF NOTE
See form of Remarkdet Note Due 2038 which appears as Exhibit 4.2 to this
CURRENT REPORT ON FORM 8-K.
<PAGE>
EXHIBIT B
TAMPA ELECTRIC COMPANY
REMARKETED NOTES DUE 2038
SUPPLEMENTAL COMPANY ORDER
Pursuant to Article Five of the First Supplemental Indenture, dated as
of July 15, 1998, to the Indenture, dated as of July 1, 1998, as amended,
you are instructed to prepare and authenticate a Note, of the series
identified above, in the principal amount of $______________. The Note is
being delivered in exchange for issued and outstanding Notes of the series
identified above.
IN WITNESS WHEREOF, I have hereunto set my hand
this _____ day of______, 1998.
TAMPA ELECTRIC COMPANY
By:
Name:
Title:
<PAGE>
EXHIBIT C
[Tampa Electric Company Letterhead]
FLOATING INTEREST RATE NOTICE
[Date]
To: [Remarketing Agent(s)]
[Address]
The Bank of New York
10161 Centurion Parkway
Jacksonville, Florida 32256
Attention: Corporate Trust Trustee Administration
Telecopy: (904) 645-1997
Re: Remarketed Notes Due 2038 (the "Notes")
Ladies and Gentlemen:
This Floating Interest Rate Notice relates to (i) $_______________
principal amount of the Notes (CUSIP No. ___________) and (ii) the proposed
[Long Term Rate Period] [SPURS Rate Period] of the Note (the "Interest Rate
Period") commencing on ___________ and ending on ___________. Capitalized
terms used and not otherwise defined herein shall have their respective
meanings assigned to them in the Notes.
We hereby notify you that the above-referenced Notes will bear the
following floating rate terms during the Interest Rate Period specified
above:
1. The Interest Rate Basis(es) shall be:
[ ] CD Rate, where the Index Maturity will be ______________;
[ ] CMT Rate, where the Designated CMT Maturity Index will be
_____________, and the Designated CMT Telerate Page will be
____________;
[ ] Federal Funds Rate;
[ ] LIBOR Reuters, where the Index Currency will be ___________, and
the Designated LIBOR Page will be __________;
[ ] LIBOR Telerate, where the Index Currency will be _____________ ,
and the Designated LIBOR Page will be _____________;
[ ] Prime Rate;
[ ] Treasury Rate
2. The floating interest rate will be reset as follows:
[ ] Initial Interest Reset Date will be __________ ;
[ ] Interest Reset Dates will be _____________;
[ ] Interest Reset Period will be ____________;
3. The interest will be paid as follows:
[ ] Interest Payment Dates will be _____________;
[ ] Interest Rate Period will be ____________;
[ ] Index Maturity will be _________;
[ ] Floating Rate Maximum Interest Rate will be ____________;
[ ] Floating Rate Minimum Interest Rate will be ______________.
4. Day Count Convention:
[ ] Actual/360;
[ ] Actual/Actual;
[ ] 30/360.
5. Other terms: [ ]
Each Beneficial Owner of the Note will be deemed to have tendered such
Note as of the Interest Rate Adjustment Date and will not be entitled to
further accrual of interest after the Interest Rate Adjustment Date.
TAMPA ELECTRIC COMPANY
By:
Name:
Title:
<PAGE>
TABLE OF CONTENTS Page
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION . . 2
Section 101 Definitions . . . . . . . . . . . . . . . . . . . . . 2
Section 102 Section References . . . . . . . . . . . . . . . . . . 8
ARTICLE TWO DESIGNATION AND TERMS OF THE NOTES . . . . . . . . . . . . 8
Section 201 Establishment of Series . . . . . . . . . . . . . . . 8
Section 202 Variations in Terms of Notes . . . . . . . . . . . . . 8
Section 203 Amount and Denominations; the Depositary . . . . . . . 9
Section 204 Interest Rates, Interest Payment Dates and Interest
Rate Periods . . . . . . . . . . . . . . . . . . . . . 9
Section 205 Determination of Interest Rates . . . . . . . . . . . 11
Section 206 Election and Determination of a Floating Interest Rate
by the Company . . . . . . . . . . . . . . . . . . . . 12
Section 207 Conversion Between Interest Rate Modes by the Company 19
Section 208 Automatic Tender of Notes on the Interest Rate
Adjustment Date . . . . . . . . . . . . . . . . . . . 21
Section 209 Remarketing . . . . . . . . . . . . . . . . . . . . . 21
Section 210 Purchase and Redemption of Notes . . . . . . . . . . . 23
Section 211 Form and Other Terms of the Notes . . . . . . . . . . 24
ARTICLE THREE THE SPURS MODE . . . . . . . . . . . . . . . . . . . 25
Section 301 Applicability of Article . . . . . . . . . . . . . . . 25
Section 302 Initial SPURS Rate Period . . . . . . . . . . . . . . 25
Section 303 Interest to SPURS Remarketing Date . . . . . . . . . . 25
Section 304 Tender to and Remarketing by the SPURS Agent . . . . . 25
Section 305 Conversion or Redemption Following Election by the
SPURS Agent to Remarket . . . . . . . . . . . . . . . 27
ARTICLE FOUR ADDITIONAL EVENTS OF DEFAULT WITH RESPECT TO THE NOTES . . 28
Section 401 Definition . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE FIVE AUTHENTICATION AND DELIVERY OF THE NOTES . . . . . . . . . 28
Section 501 Authentication and Delivery . . . . . . . . . . . . . 28
ARTICLE SIX SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . 29
Section 601 Effect On Original Indenture . . . . . . . . . . . . . 29
ARTICLE SEVEN MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . 29
Section 701 Counterparts . . . . . . . . . . . . . . . . . . . . 29
Section 702 Recitals . . . . . . . . . . . . . . . . . . . . 29
Section 703 Governing Law . . . . . . . . . . . . . . . . . . . . 29
<PAGE>
Exhibit 4.2
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
CUSIP NO.: [ ]
TAMPA ELECTRIC COMPANY
Remarketed Note Due 2038
$50,000,000
NO. [ ]
x Check this box if the Note is a Global Note.
Applicable if the Note is a Global Note:
This Note is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of Cede & Co., or
such other nominee of The Depository Trust Company, a New York corporation,
or any successor depositary ("Depositary"), as requested by an authorized
representative of the Depositary. This Note is exchangeable for Notes
registered in the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Indenture and may not be
transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary.
ORIGINAL ISSUE DATE:
July __, 1998
ISSUE PRICE: 100%
(as a percentage of
principal amount)
STATED MATURITY:
July 15, 2038,
subject to mandatory
tender to the SPURS
Agent, if any, as
described on the
reverse of this
Note.
INTEREST RATE: To
but excluding
July 15, 2001,
[___%] per annum.
Thereafter, at the
interest rate set
forth in Annex A
hereto.
INTEREST PAYMENT
DATES: January 15
and July 15 of each
year, up to but
excluding July 15,
2001 and commencing
January 15, 1999.
From and including
July 15, 2001, on
the dates described
in Annex A hereto.
SPECIFIED CURRENCY:
U.S. dollars (if
other than U.S.
dollars): N/A
AUTHORIZED
DENOMINATIONS: N/A
(Only applicable if
Specified Currency
is other than U.S.
dollars)
DEPOSITARY: The
Depository Trust
Company
INITIAL SPURS
AGENT:Citibank,
N.A., or its
assignee or
successor
SINKING FUND: N/A
YIELD TO MATURITY:
N/A
REDEMPTION,
REPURCHASE AND
CONVERSION OPTIONS:
See reverse of this
Note.
REMARKETING
PROVISIONS: See
reverse of this
Note.
<PAGE>
THIS NOTE SHALL NOT BE VALID FOR ANY PURPOSE UNLESS PRESENTED TOGETHER WITH
AN ANNEX A HERETO (INCLUDING ANY CONTINUATION THEREOF). REFERENCE IS MADE
TO ANNEX A FOR CERTAIN TERMS OF THIS NOTE.
TAMPA ELECTRIC COMPANY, a corporation duly organized and existing
under the laws of the State of Florida (herein called the "Company," which
term includes any successor Corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum set forth in Annex A on the Stated
Maturity, upon the presentation and surrender hereof at the principal
corporate trust office of The Bank of New York, or its successor in trust
(the "Trustee") or such other office as the Trustee has designated in
writing, and to pay interest on the unpaid principal balance hereof at a
rate per annum (assuming a 360-day year consisting of twelve 30-day months)
equal to the Initial Interest Rate set forth in Annex A for the period from
the Original Issue Date to, but excluding, July 15, 2001 (the "Initial
SPURS Remarketing Date"). If the Initial SPURS Agent (as defined above and
set forth in Annex A) elects to purchase this Note on the Initial SPURS
Remarketing Date, except in the limited circumstances described on the
reverse of this Note, (a) this Note will be subject to mandatory tender to
the Initial SPURS Agent at 100% of the aggregate principal amount thereof
for remarketing on the Initial SPURS Remarketing Date, on the terms and
subject to the conditions described on the reverse of this Note, and (b)
will for the period from the Initial SPURS Remarketing Date to, but
excluding July 15, 2011, bear interest at the SPURS Interest Rate (as
defined on the reverse of this Note). If the Initial SPURS Agent does not
purchase this Note on the Initial SPURS Remarketing Date, this Note
automatically will be subject to mandatory tender at 100% of the principal
amount thereof for redemption on such date by the Company or for
remarketing on such date by a Remarketing Agent (as defined on the Reverse
of this Note) in a Commercial Paper Term Mode, Long Term Rate Mode or a new
SPURS Mode and will bear interest at a rate and for a period set forth in
Annex A hereto.
Interest will be payable on the Interest Payment Dates to the Person
in whose name this Note is registered at the close of business on the
related Record Date as provided below or as set forth in Annex A. In each
case, payments shall be made in accordance with the provisions hereof,
including any additional terms specified in Annex A, until the principal
hereof is paid or duly made available for payment. References herein to
"this Note," "hereof," "herein" and comparable terms shall include Annex A.
So long as this Note bears interest in the Commercial Paper Term Mode,
interest will be payable on the Interest Rate Adjustment Date which
commences the next succeeding Interest Rate Period for this Note and on
such other dates (if any) as will be established by the Company and set
forth in Annex A upon conversion of this Note to the Commercial Paper Term
Mode or upon remarketing of this Note in a new Interest Rate Period in the
Commercial Paper Term Mode. So long as this Note bears interest in the
Long Term Rate Mode or the SPURS Mode, interest will be payable no less
frequently than semiannually on such dates as will be established by the
Company and set forth in Annex A upon conversion of this Note to the Long
Term Rate Mode or the SPURS Mode (or upon remarketing of this Note in a new
Interest Rate Period in the Long Term Rate Mode or the SPURS Mode, as the
case may be) in the case of a fixed interest rate, or as set forth below
under "INTEREST RATE" in the case of a floating interest rate and on the
Interest Rate Adjustment Date commencing the next succeeding Interest Rate
Period. Such interest will be payable to the Holder hereof as of the
related Record Date, which, so long as this Note bears interest (i) in the
Initial Interest Rate Period, are the dates specified in Annex A; (ii) in
the Commercial Paper Term Mode, is the Business Day prior to the related
Interest Payment Date; and (iii) in the Long Term Rate Mode or the SPURS
Mode, is the fifteenth calendar day (whether or not a Business Day)
immediately preceding the related Interest Payment Date. Except as
provided below under "FLOATING INTEREST RATES," if any Interest Payment
Date would otherwise be a day that is not a Business Day, such Interest
Payment Date will be postponed to the next succeeding Business Day, and no
interest will accrue on such payment for the period from and after such
Interest Payment Date to the date of such payment on the next succeeding
Business Day. Interest on this Note while bearing interest in the
Commercial Paper Term Mode or at a floating interest rate during a Long
Term Rate Period or a SPURS Rate Period will be computed on the basis of
actual days elapsed over 360; provided that, if an applicable Interest Rate
Basis is the CMT Rate or Treasury Rate (each as defined below), interest
will be computed on the basis of actual days elapsed over the actual number
of days in the year. Interest on this Note while bearing interest in the
Long Term Rate Mode or the SPURS Mode will be computed on the basis of a
year of 360 days consisting of twelve 30-day months. Interest on this Note
while bearing interest at the Initial Interest Rate will be computed on the
basis of a year of 360 days consisting of twelve 30-day months.
Payment of the principal of (and premium, if any) and any such
interest on this Note shall be made in immediately available funds at the
office or agency of the Company maintained for that purpose in the City of
New York in the State of New York, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and in Annex A hereto, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, TAMPA ELECTRIC COMPANY has caused this instrument
to be duly executed.
TAMPA ELECTRIC COMPANY
By:___________________________
Name:
Title:
Date:__________________________
[SEAL]
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the series
designated therein referred
to in the within-mentioned
Indenture.
THE BANK OF NEW YORK
as Authenticating Agent for the Trustee
By:
Authorized Signatory
Date:<PAGE>
(REVERSE OF NOTE)
TAMPA ELECTRIC COMPANY
Remarketed Note Due 2038
This Note is one of a duly authorized issue of securities of the
Company (herein called the "Notes"), issued and to be issued under an
Indenture dated as of July 1, 1998, as supplemented by the First
Supplemental Indenture, dated as of July 15, 1998 (as further amended or
supplemented, the "Indenture"), between the Company and The Bank of New
York, as trustee (the "Trustee", which term includes any successor Trustee
under the Indenture), to which Indenture reference is hereby made for a
statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Notes are, and are to be,
authenticated and delivered. This Note is one of the securities of the
series designated on the face hereof, limited in aggregate principal amount
to $50,000,000.
DEFINITIONS
The following terms, as used herein, have the following meanings
unless the context or use clearly indicates another or different meaning or
intent:
"Applicable Spread" shall mean the lowest bid indication, expressed as
a spread (in the form of a percentage or in basis points) above the Base
Rate, obtained by the SPURS Agent on the applicable Determination Date from
the bids quoted by up to five Reference Corporate Dealers for the full
aggregate outstanding principal amount of the Notes at the Dollar Price,
but assuming (i) an issue date equal to the applicable SPURS Remarketing
Date, with settlement on such date without accrued interest, (ii) a
maturity date equal to the next succeeding Interest Rate Adjustment Date of
the Notes, and (iii) a stated annual interest rate, payable semiannually on
each Interest Payment Date, equal to the Base Rate plus the spread bid by
the applicable Reference Corporate Dealer. If fewer than five Reference
Corporate Dealers bid as described above, then the Applicable Spread shall
be the lowest of such bid indications obtained as described above. The
SPURS Interest Rate announced by the SPURS Agent, absent manifest error,
shall be binding and conclusive upon the Beneficial Owners and holders of
the Notes, the Company and the Trustee.
"Base Rate" shall mean the interest rate established by the SPURS
Agent, after consultation with the Company, as the applicable "base rate"
at or prior to the commencement of the SPURS Mode and set forth in Annex A
hereto.
"Beneficial Owner" shall mean, if this Note is in book-entry form, the
Person who acquires an interest in the Note, which is reflected on the
records of Depositary through its participants.
"Business Day" shall mean any day that is not a day on which banking
institutions in New York, New York, or the state in which the office of the
Trustee at which the Indenture is administered are authorized or obligated
by law or executive order to close; provided, however, that with respect to
Notes in the Long Term Rate Mode or the SPURS Mode as to which LIBOR is an
applicable Interest Rate Basis, such day is also a London Business Day (as
hereinafter defined). "London Business Day" means (i) if the Index
Currency (as hereinafter defined) is other than European Currency Units
("ECU"), any day on which dealings in such Index Currency are transacted in
the London interbank market or (ii) if the Index Currency is ECU, any day
that does not appear as an ECU non-settlement day on the display designated
as "ISDE" on the Reuters Monitor Money Rates Service (or a day so
designated by the ECU Banking Association) or, if ECU non-settlement days
do not appear on the page (and are not so designated), is a day on which
payments in ECU can be settled in the international banking market.
"Calculation Agent" shall mean, if this Note bears interest at a
floating rate, an entity selected by the Company that will determine the
interest rate in effect for each Interest Reset Period of this Note
subsequent to the initial Interest Reset Date.
"Calculation Date" shall have the meaning set forth under "FLOATING
INTEREST RATES" below.
"CD Rate" shall have the meaning set forth under "FLOATING INTEREST
RATES" below.
"CMT Rate" shall have the meaning set forth under "FLOATING INTEREST
RATES" below.
"Commercial Paper Term Mode" shall mean the Interest Rate Mode in
which the interest rate on this Note is reset on a periodic basis that
shall not be less than one calendar day nor more than 364 consecutive
calendar days and interest is paid as provided for such Interest Rate Mode
as set forth herein.
"Commercial Paper Term Period" shall mean the Interest Rate Period for
this Note in the Commercial Paper Term Mode that is a period of not less
than one nor more than 364 consecutive calendar days, as determined by the
Company (as described below under "CONVERSION") or, if not so determined,
by the Remarketing Agent for this Note (in its best judgment in order to
obtain the lowest interest cost for such Note). Each Commercial Paper Term
Period will commence on the Interest Rate Adjustment Date therefor and end
on the day preceding the date specified by such Remarketing Agent as the
first day of the next Interest Rate Period for this Note. The interest rate
for any Commercial Paper Term Period relating to this Note will be
determined not later than 11:50 a.m., New York City time, on the Interest
Rate Adjustment Date for this Note, which is the first day of each Interest
Period for this Note.
"Comparable Treasury Issues" shall mean the United States Treasury
security or securities selected by the SPURS Agent as having an actual or
interpolated maturity or maturities comparable or applicable to the
remaining term to the next succeeding Interest Rate Adjustment Date of this
Note when purchased by such SPURS Agent.
"Comparable Treasury Price" shall mean, with respect to a SPURS
Remarketing Date, (a) the offer prices for the Comparable Treasury Issues
(expressed in each case as a percentage of its principal amount) at 11:00
a.m. on the Determination Date, as set forth on Telerate Page 500 (or such
other page as may replace Telerate Page 500) or (b) if such page (or any
successor page) is not displayed or does not contain such offer prices on
such Determination Date, (i) the average of the Reference Treasury Dealer
Quotations for such SPURS Remarketing Date, after excluding the highest and
lowest of such Reference Treasury Dealer Quotations, or (ii) if the
applicable SPURS Agent obtains fewer than four such Reference Treasury
Dealer Quotations, the average of all such Reference Treasury Dealer
Quotations. "Telerate Page 500" shall mean the display designated as
"Telerate Page 500" on Dow Jones Markets (or such other page as may replace
Telerate Page 500 on such service) or such other service displaying the
offer prices specified in (a) above as may replace Dow Jones Markets.
"Composite Quotations" shall mean the statistical release entitled
"Composite 3:30 P.M. Quotations for United States Government Securities"
published by the Federal Reserve Bank of New York or any successor
publication.
"Depositary" shall mean The Depository Trust Company or any successor
depositary.
"Designated CMT Telerate Page" shall mean the display on the Dow Jones
Markets (or any successor service) on the page specified in the applicable
Floating Interest Rate Notice (or any other page as may replace such page
on such service for the purpose of displaying Treasury Constant Maturities
as reported in H.15(519)) for the purpose of displaying Treasury Constant
Maturities as reported in H.15(519). If no such page is specified in the
applicable Floating Interest Rate Notice, the page shall be 7052 for the
most recent week.
"Designated CMT Maturity Index" shall mean the original period to
maturity of the United States Treasury securities (either 1, 2, 3, 5, 7,
10, 20 or 30 years) specified in the applicable Floating Interest Rate
Notice with respect to which the CMT Rate will be calculated. If no such
maturity is specified in the applicable Floating Interest Rate Notice, the
Designated CMT Maturity Index shall be 2 years.
"Designated LIBOR Page" shall mean (a) if "LIBOR Reuters" is specified
in the applicable Floating Interest Rate Notice, the display on the Reuters
Monitor Money Rates Service (or any successor service) on the page
specified in such Floating Interest Rate Notice (or any other page as may
replace such page on such service) for the purpose of displaying the London
interbank rates of major banks for the Index Currency, or (b) if "LIBOR
Telerate" is specified in the applicable Floating Interest Rate Notice or
neither "LIBOR Reuters" nor "LIBOR Telerate" is specified in the applicable
Floating Interest Rate Notice as the method for calculating LIBOR, the
display on the Dow Jones Markets (or any successor service) on the page
specified in such Floating Interest Rate Notice (or any other page as may
replace such page on such service) for the purpose of displaying the London
interbank rates of major banks for the Index Currency.
"Determination Date" shall mean the third Business Day immediately
preceding the applicable SPURS Remarketing Date.
"Dollar Price" shall mean the present value determined by the SPURS
Agent, as of the applicable SPURS Remarketing Date, of the Remaining
Scheduled Payments discounted to such SPURS Remarketing Date, on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day
months), at the Treasury Rate.
"DTC Participant" shall mean an account maintained by an institution
with the Depositary through which securities are held by such institution
and accounted for by a book-entry registration and transfer system.
"Federal Funds Rate" shall have the meaning set forth under "FLOATING
INTEREST RATES" below.
"Floating Interest Rate Notice" shall mean the notice described under
"FLOATING INTEREST RATES" below, which is to be provided by the Company to
the Trustee and the Remarketing Agent in the event the Company elects to
apply a floating interest rate to this Note.
"Floating Rate Maximum Interest Rate" and "Floating Rate Minimum
Interest Rate" have the respective meanings specified under "FLOATING
INTEREST RATES" below.
"H.15 (519)" shall mean "Statistical Release H.15(519), Selected
Interest Rates" published by the Board of Governors of the Federal Reserve
System or any successor publication.
"Index Currency" shall mean the currency or composite currency
specified in the applicable Floating Interest Rate Notice as to which LIBOR
will be calculated. If no such currency or composite currency is specified
in the applicable Floating Interest Rate Notice, the Index Currency will be
United States dollars.
"Index Maturity" shall mean the period to maturity of the instrument
or obligation with respect to which the related Interest Rate Basis or
Bases will be calculated.
"Initial Interest Rate" shall mean the annual rate of interest
applicable to this Note during the Initial Interest Rate Period as set
forth on Annex A hereto.
"Initial Interest Rate Period" shall mean the period from the Original
Issuance Date to, but excluding, the Initial SPURS Remarketing Date.
"Initial SPURS Agent" means the SPURS Agent with the option to
purchase this Note on the Initial SPURS Remarketing Date, the identity of
which Initial SPURS Agent is set forth in Annex A hereto.
"Initial SPURS Remarketing Date" shall mean the date designated by the
Initial SPURS Agent, after consultation with the Company, upon which the
Initial SPURS Agent may, if it has so elected, remarket this Note at the
SPURS Interest Rate, which date is set forth in Annex A hereto.
"Interest Determination Date" shall have the meaning specified under
"FLOATING INTEREST RATES" below.
"Interest Payment Date" shall mean the date on which interest on this
Note is paid, which date(s) shall be set forth in Annex A hereto.
"Interest Rate Adjustment Date" shall mean (i) for a particular
Interest Rate Period in any Interest Rate Mode, each date, which shall be a
Business Day, on which interest and, in the case of a floating interest
rate, the Spread (if any) and the Spread Multiplier (if any) on this Note
subject thereto commences to accrue at the rate determined and announced by
the applicable Remarketing Agent for such Interest Rate Period, and (ii)
during the Initial Interest Rate Period, the Original Issue Date.
"Interest Rate Basis" shall mean the interest rate or interest rate
formula to be referenced in determining a floating interest rate, as
described under "FLOATING INTEREST RATES" below.
"Interest Rate Mode" shall mean the mode in which the interest rate on
a Note is being determined, i.e., the Commercial Paper Term Mode, the Long
Term Rate Mode or the SPURS Mode.
"Interest Rate Period" shall mean (a) if this Note is in the
Commercial Paper Mode or Long Term Rate Mode, the period of time commencing
on the Interest Rate Adjustment Date and extending either (i) to, but not
including, the immediately succeeding Interest Rate Adjustment Date or
(ii), if there is no succeeding Interest Rate Adjustment date, to, but
excluding, the Stated Maturity, and during which this Note bears interest
at a particular fixed interest rate or floating interest rate; and (b) if
this Note is in a SPURS Mode, the SPURS Rate Period.
"Interest Reset Date" and "Interest Reset Period" have the respective
meanings specified under "FLOATING INTEREST RATES" below.
"LIBOR" shall have the meaning specified under "FLOATING INTEREST
RATES" below.
"Long Term Rate Mode" shall mean the Interest Rate Mode in which the
interest rate on this Note is reset in a Long Term Rate Period and interest
is paid as provided for such Interest Rate Mode as set forth herein.
"Long Term Rate Period" shall mean any period of more than 364 days
and not exceeding the remaining term to the Stated Maturity of this Note.
"Notification Date" shall mean a Business Day not later than five
Business Days prior to the applicable SPURS Remarketing Date.
"Optional Redemption" shall mean the redemption of this Note prior to
its maturity at the option of the Company as described herein.
"Optional Redemption Price" shall mean, at any given time, the
greater of either (i) 100% of the principal amount of this Note or (ii) the
Dollar Price plus in either case accrued and unpaid interest from the SPURS
Remarketing Date on the principal amount being redeemed to the date of
redemption.
"Original Issue Date" shall have the meaning set forth on the face
hereof.
"Prime Rate" shall have the meaning specified under "FLOATING INTEREST
RATES" below.
"Principal Financial Center" shall mean the capital city of the
country issuing the Index Currency, except that with respect to United
Stated dollars, Australian dollars, Deutsche marks, Dutch guilders, Italian
lire, Swiss francs and ECUs, the Principal Financial Center shall be the
City of New York, Sydney, Frankfurt, Amsterdam, Milan, Zurich and
Luxembourg, respectively.
"Reference Corporate Dealers" shall mean such Reference Corporate
Dealers as shall be appointed by the SPURS Agent after consultation with
the Company and each to be set forth in Annex A hereto.
"Reference Treasury Dealers" shall mean such Reference Treasury
Dealers as shall be appointed by the SPURS Agent after consultation with
the Company and each to be set forth in Annex A hereto.
"Reference Treasury Dealer Quotation" shall mean, with respect to each
Reference Treasury Dealer and the SPURS Remarketing Date, the offer prices
for the Comparable Treasury Issues (expressed in each case as a percentage
of its principal amount) quoted in writing to the SPURS Agent by such
Reference Treasury Dealer by 3:30 p.m., New York City time, on the
Determination Date.
"Remaining Scheduled Payments" shall mean the remaining scheduled
payments of the principal thereof and interest thereon, calculated at the
Base Rate only, that would be due after the SPURS Remarketing Date to and
including the next succeeding Interest Rate Adjustment Date.
"Remarketing Agent" shall mean such agent or agents, including any
standby remarketing agent (each a "Standby Remarketing Agent"), as the
Company may appoint from time to time for the purpose of remarketing of
this Note, as set forth in the remarketing agreement that the Company shall
enter into prior to the remarketing of such Notes.
"Reuters Screen U.S. PRIME 1 Page" shall mean the display designated
as page "U.S. PRIME 1" on the Reuters Monitor Money Rates Service (or any
successor service) on the U.S. PRIME 1 Page (or such other page as may
replace the U.S. PRIME 1 Page on such service) for the purpose of
displaying prime rates or base lending rates of major United States banks.
"Special Interest Rate" shall have the meaning set forth below under
subsection (d) of "INTEREST RATE."
"Special Mandatory Purchase" shall mean the obligation of the Company
to purchase Notes not successfully remarketed by the Remarketing Agent and
the applicable Standby Remarketing Agent(s) by 3:00 p.m., New York City
time, on any Interest Rate Adjustment Date.
"Spread" shall mean the number of basis points to be added to or
subtracted from the related Interest Rate Basis or Bases applicable to an
Interest Rate Period for such Note.
"Spread Multiplier" shall mean the percentage of the related Interest
Rate Basis or Bases applicable to an Interest Rate Period by which such
Interest Rate Basis or Bases will be multiplied to determine the applicable
interest rate from time to time for an Interest Rate Period.
"SPURS Agent" shall mean the remarketing agent granted the option
under a SPURS Remarketing Agreement to purchase this Note in the SPURS Mode
and subsequently remarket the repurchased Note at a SPURS Interest Rate.
"SPURS Interest Rate" shall mean the rate equal to the Base Rate
established by a SPURS Agent, after consultation with the Company, at or
prior to the commencement of the applicable SPURS Mode, plus the Applicable
Spread, which will be based on the Dollar Price.
"SPURS Mode" shall mean the Interest Rate Mode in which this Note
shall bear interest and be subject to remarketing as "Structured PUtable
Remarketable Securities."
"SPURS Period" shall mean, if this Note is remarketed by the Initial
SPURS Agent on the Initial SPURS Remarketing Date, that portion of the
SPURS Rate Period commencing on the Initial SPURS Remarketing Date up to,
but excluding, the next succeeding Interest Rate Adjustment Date. The
SPURS Period is set forth in Annex A hereto.
"SPURS Rate Period" shall mean an Interest Rate Period for this Note
if in a SPURS Mode established by the Company as a period of more than 364
days and less than the remaining term to the Stated Maturity of such Note;
provided, however, that such Interest Rate Period must end on the day prior
to an Interest Payment Date for such Note. The SPURS Rate Period shall
consist of the period to and excluding the SPURS Remarketing Date and the
period from and including the SPURS Remarketing Date to, but excluding, the
next succeeding Interest Rate Adjustment Date.
"SPURS Remarketing Agreement" shall mean the agreement by and between
the Company and the SPURS Agent dated as of the date commencing the
applicable SPURS Rate Period which sets forth the rights and obligations of
the Company and the SPURS Agent with respect to the remarketing of Notes in
the SPURS Mode.
"SPURS Remarketing Date" shall mean the date designated by the SPURS
Agent, after consultation with the Company, upon which the SPURS Agent may
elect to remarket this Note at the SPURS Interest Rate.
"Stated Maturity" shall mean July 15, 2038.
"Treasury Bills" shall have the meaning specified under "FLOATING
INTEREST RATES" below.
"Treasury Rate" shall have the meaning specified under "FLOATING
INTEREST RATES" below.
"Weekly Rate Period" is a Commercial Paper Term Period and will be a
period of seven days commencing on any Interest Rate Adjustment Date and
ending on the day preceding the first day of the next Interest Rate Period
for such Note.
INTEREST RATE
(a) Initial Interest Rate. This Note will bear interest at the rate
per annum (assuming a 360-day year consisting of twelve 30-day months)
during the Initial Interest Rate Period identified as the Initial Interest
Rate in Annex A hereto.
(b) Subsequent Interest Rates. (i) If the Initial SPURS Agent
elects to purchase this Note as described herein, this Note will be subject
to mandatory tender to the Initial SPURS Agent on the Initial SPURS
Remarketing Date, except in the limited circumstances described herein, and
will, for the SPURS Period bear interest at the SPURS Interest Rate as
defined herein and which will be set forth in Annex A hereto.
(ii) If the Initial SPURS Agent does not purchase this Note on
the Initial SPURS Remarketing Date, this Note automatically will be subject
to mandatory tender at 100% of the principal amount thereof for redemption
on such date by the Company or for remarketing on such date by a
Remarketing Agent in a Commercial Paper Term Mode, a Long Term Rate Mode or
a new SPURS Mode and will bear interest at a rate and for a period set
forth in Annex A hereto.
(iii) The interest rate and, in the case of a floating
interest rate, the Spread (if any) and the Spread Multiplier (if any) for
this Note will be announced by the applicable Remarketing Agent on or prior
to the Interest Rate Adjustment Date for the next succeeding Interest Rate
Period, and will be the minimum interest rate per annum and, in the case of
a floating interest rate, the Spread (if any) and the Spread Multiplier (if
any) necessary, during the Interest Rate Period commencing on such Interest
Rate Adjustment Date, in the judgement of the Remarketing Agent, to produce
a par bid in the secondary market for this Note on the date the interest
rate is established. Such rate will be effective for the next succeeding
Interest Rate Period for this Note commencing on such Interest Rate
Adjustment Date.
(c) Floating Interest Rates. The provisions governing floating
interest rates for this Note appear below under "FLOATING INTEREST RATES."
(d) Failure of Remarketing Agent or Agents to Announce Interest. In
the event that (i) the applicable Remarketing Agent has been removed or has
resigned and no successor has been appointed, or (ii) such Remarketing
Agent has failed to announce the appropriate interest rate, Spread (if any)
or Spread Multiplier (if any), as the case may be, on the Interest Rate
Adjustment Date of this Note for whatever reason, or (iii) the appropriate
interest rate, Spread (if any), or Spread Multiplier (if any), as the case
may be, or Interest Rate Period cannot be determined for this Note for
whatever reason, then the next succeeding Interest Rate Period for this
Note will be automatically converted to a Weekly Rate Period, and the rate
of interest thereon will be equal to the Federal Funds Rate (the "Special
Interest Rate").
(e) Notice of Interest Rate; Binding Effect. After any Interest Rate
Adjustment Date of this Note, the Remarketing Agent or the SPURS Agent, as
the case may be, will notify the Company and the Trustee of the interest
rate, Spread (if any) and the Spread Multiplier (if any). Immediately upon
receipt of such notice, the Trustee will transmit such information to the
Depositary in accordance with the Depositary's procedures as in effect from
time to time and note such rate in Annex A. The Trustee shall confirm to
the Depositary the interest rate for the following Interest Rate Period in
accordance with the Depositary's procedures as in effect from time to time.
Any Beneficial Owner may contact the Trustee or the Remarketing Agent in
order to be advised of the interest rate applicable to such Beneficial
Owner's Remarketed Notes. No notice of the applicable interest rate will
be sent to Beneficial Owners.
The interest rate and other terms announced by the Remarketing Agent,
absent manifest error, will be binding and conclusive upon the Beneficial
Owners, the Company and the Trustee.
(f) Conversion. This Note may be converted at the option of the
Company to the Commercial Paper Term Mode, Long Term Rate Mode or SPURS
Mode on any Interest Rate Adjustment Date for this Note in accordance with
the procedures set forth in the Indenture, and will be subject to mandatory
tender by the Beneficial Owner thereof as described herein on such Interest
Rate Adjustment Date. The Beneficial Owner of this Note will be deemed to
have automatically tendered for purchase such Note on each Interest Rate
Adjustment Date upon which such conversion occurs and will not be entitled
to further accrual of interest on this Note after such date.
TENDER
This Note will be automatically tendered for purchase, or deemed
tendered for purchase, on each Interest Rate Adjustment Date relating
hereto. Notes will be purchased on such Interest Rate Adjustment Date in
accordance with the procedures set forth in "REMARKETING AND SETTLEMENT"
or, as the case may be, "SPURS MODE" below.
REMARKETING AND SETTLEMENT
Interest Rate Adjustment Date; Determination of Interest Rate. By
11:00 a.m., New York City time, on the Interest Rate Adjustment Date for
this Note, the applicable Remarketing Agent will determine the interest
rate for such Note being remarketed to the nearest one hundred thousandth
(0.00001) of one percent per annum for the next Interest Rate Period in the
case of a fixed interest rate, and the Spread (if any) and Spread
Multiplier (if any) in the case of a floating interest rate; provided, that
between 11:00 a.m., New York City time, and 11:50 a.m., New York City time,
the Remarketing Agent and the Standby Remarketing Agent, if any, will use
their reasonable efforts to determine the interest rate for this Note if it
is not successfully remarketed as of the applicable deadline specified in
this paragraph. In determining the applicable interest rate for this Note
and other terms, such Remarketing Agent will, after taking into account
market conditions as reflected in the prevailing yields on fixed and
variable rate taxable debt securities, (i) consider the principal amount of
all Notes tendered or to be tendered on such date and the principal amount
of such Notes prospective purchasers are or may be willing to purchase and
(ii) contact, by telephone or otherwise, prospective purchasers and
ascertain the interest rates therefor at which they would be willing to
hold or purchase such Notes.
Notification of Results; Settlement. By 12:30 p.m., New York City
time, on the Interest Rate Adjustment Date of this Note, the applicable
Remarketing Agent will notify the Company and the Trustee in writing (which
may include facsimile or other electronic transmission), of (i) the
interest rate or, in the case of a floating interest rate, the initial
interest rate, the Spread and Spread Multiplier and the initial Interest
Reset Date, applicable to this Note for the next Interest Rate Period, (ii)
the Interest Rate Adjustment Date, (iii) the Interest Payment Dates if this
Notes is in the Commercial Paper Term Mode (if other than the Interest Rate
Adjustment Date), the Long Term Rate Mode or the SPURS Mode, (iv) the
optional redemption terms, if any, and early remarketing terms, if any, in
the case of a remarketing into a Long Term Rate Period, (v) the aggregate
principal amount of all tendered Notes and (vi) the aggregate principal
amount of such tendered Notes that such Remarketing Agent was able to
remarket, at a price equal to 100% of the principal amount thereof plus
accrued interest, if any. Immediately after receiving such notice and, in
any case, not later than 1:30 p.m., New York City time, the Trustee will
transmit such information and any other settlement information required by
the Depositary to the Depositary in accordance with the Depositary's
procedures as in effect from time to time.
By telephone at approximately 1:00 p.m., New York City time, on such
Interest Rate Adjustment Date, the applicable Remarketing Agent will advise
each purchaser of this Note (or the DTC Participant of each such purchaser
who it is expected in turn will advise such purchaser) of the principal
amount of such Notes that such purchaser is to purchase.
Each purchaser of this Note in a remarketing will be required to give
instructions to its DTC Participant to pay the purchase price therefor in
same day funds to the applicable Remarketing Agent against delivery of the
principal amount of this Note by book-entry through the Depositary by 3:00
p.m., New York City time, on the Interest Rate Adjustment Date.
When tendered, or deemed tendered, this Note will be automatically
delivered to the account of the Trustee (or such other account meeting the
requirements of the Depositary's procedures as in effect from time to
time), by book-entry through the Depositary against payment of the purchase
price or redemption price therefor, on the Interest Rate Adjustment Date
relating thereto.
The applicable Remarketing Agent will make, or cause the Trustee to
make, payment to the DTC participant of each tendering Beneficial Owner of
Notes subject to a remarketing, by book-entry through the Depositary by the
close of business on the Interest Rate Adjustment Date against delivery
through the Depositary of such Beneficial Owner's tendered Notes, of the
purchase price for tendered Notes that have been sold in the remarketing.
If this Note was purchased pursuant to a Special Mandatory Purchase,
subject to receipt of funds from the Company or, if applicable, an
institution providing credit support, as the case may be, the Trustee will
make such payment of the purchase price of this Notes plus accrued
interest, if any, to such date.
The transactions described above for a remarketing of this Note will
be executed on the Interest Rate Adjustment Date for this Note through the
Depositary in accordance with the procedures of the Depositary, and the
accounts of the respective DTC Participants will be debited and credited
and such Notes delivered by book-entry as necessary to effect the purchases
and sales thereof, in each case as determined in the related remarketing.
Except as otherwise set forth below, this Note when tendered in a
remarketing will be purchased solely out of the proceeds received from
purchasers of this Note in such remarketing, and none of the Trustee, the
applicable Remarketing Agent, any Standby Remarketing Agent or the Company
will be obligated to provide funds to make payment upon any Beneficial
Owner's tender in a remarketing.
Although tendered Notes will be subject to purchase by a Remarketing
Agent in a remarketing, such Remarketing Agent and any Standby Remarketing
Agent will not be obligated to purchase any such Notes.
The settlement and remarketing procedures described above, including
provisions for payment by purchasers of tendered Notes or for payment to
selling Beneficial Owners of tendered Notes, may be modified to the extent
required by the Depositary. In addition, each Remarketing Agent may, in
accordance with the terms of the Indenture, modify the settlement and
remarketing procedures set forth above in order to facilitate the
settlement and remarketing process.
As long as the Depositary's nominee holds the certificates
representing this Note in the book-entry system of the Depositary, no
certificates for this Note will be delivered by any selling Beneficial
Owner to reflect any transfer of Notes effected in any remarketing.
Failed Remarketing. If on any Interest Rate Adjustment Date for this
Note the applicable Remarketing Agent and applicable Standby Remarketing
Agent(s) have not successfully remarketed this Note, it will be subject to
Special Mandatory Purchase by the Company, as described under "REDEMPTION
AND ACCELERATION Special Mandatory Purchase" below.
TRANSFER OR EXCHANGE
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registerable in the
Security Register, upon surrender of this Note for registration of transfer
at the office or agency of the Company in any place where the principal of
(and premium, if any) and interest on this Note are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory
to the Company and the Security Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or
more new Notes of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued
to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons and,
except for such Notes issued in book-entry form, only in denominations of
$100,000 and any integral multiple of $1,000. As provided in the Indenture
and subject to certain limitations therein set forth, this Note is
exchangeable for a like aggregate principal amount of Notes of this series
and of like tenor of a different authorized denomination, as requested by
the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company or the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
REDEMPTION AND ACCELERATION
Special Mandatory Purchase. Subject to certain exceptions, if on any
Interest Rate Adjustment Date for this Note, the applicable Remarketing
Agent and applicable Standby Remarketing Agent(s) have not remarketed all
the Notes, Notes that have not been remarketed are subject to Special
Mandatory Purchase by the Company. The Company shall be obligated to pay
all accrued and unpaid interest, if any, on unremarketed Notes to such
Interest Rate Adjustment Date. Payment of the principal amount of
unremarketed Notes by the Company, and payment of accrued and unpaid
interest, if any, by the Company, will be made by deposit of same-day funds
with the Trustee (or such other account meeting the requirements of the
Depositary's procedures as in effect from time to time) irrevocably in
trust for the benefit of the Beneficial Owners of Notes subject to Special
Mandatory Purchase by 3:00 p.m., New York City time, on such Interest Rate
Adjustment Date.
Failure by the Company to purchase this Note pursuant to a Special
Mandatory Purchase will constitute an Event of Default under the Indenture
in which event the date of such failure shall constitute a date of Maturity
for this Note and the principal thereof may be declared due and payable in
the manner and with the effect provided in the Indenture. Following such
failure to pay pursuant to a Special Mandatory Purchase, this Note will
bear interest at the Special Interest Rate as provided above "INTEREST
RATE."
Optional Redemption on any Interest Rate Adjustment Date. This Note is
subject to redemption at the option of the Company in whole or in part on
any Interest Rate Adjustment Date relating thereto without notice to the
holders thereof at a redemption price equal to 100% of the principal amount
set forth in Annex A hereto.
Redemption While This Note is in the Long Term Rate Mode. If this Note
is in the Long Term Rate Mode, it is subject to redemption at the option of
the Company at the times and upon the terms specified at the time of
conversion to or within such Long Term Rate Mode as set forth in Annex A
hereto.
Notice of redemption shall be given by mail to the registered owner of
this Note, not less than 30 nor more than 60 days prior to the Redemption
Date, all as provided in the Indenture. The Company shall not be required
to (a) issue, register the transfer of or exchange Notes of this series
during a period beginning at the opening of business 15 days before the day
of the mailing of the relevant notice of redemption and ending at the close
of business on the day of such mailing or (b) register the transfer of or
exchange any Notes selected for redemption, in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
In the event of redemption of this Note in part only, a new Note or
Notes of this series, of like tenor, for the unredeemed portion hereof will
be issued in the name of the registered owner hereof upon the cancellation
hereof.
Allocation. Except in the case of a Special Mandatory Purchase, if
this Note is to be redeemed in part, the Depositary, after receiving notice
of redemption specifying the aggregate principal amount of this Note to be
so redeemed, will determine by lot (or otherwise in accordance with the
procedures of the Depositary) the principal amount this Note to be redeemed
from the account of each DTC Participant. After making its determination
as described above, the Depositary will give notice of such determination
to each DTC Participant from whose account this Notes is to be redeemed.
Each such DTC Participant, upon receipt of such notice will in turn
determine the principal amount of this Note to be redeemed from the
accounts of the Beneficial Owners of this Note for which it serves as DTC
Participant, and give notice of such determination to the Remarketing
Agent.
Acceleration. If any Event of Default with respect to the Notes shall
occur and be continuing, the principal of the Notes may be declared due and
payable in the manner and with the effect provided in the Indenture.
SPURS MODE
Notwithstanding anything herein to the contrary, the provisions of
this section shall apply to this Note when it is in a SPURS Mode and shall
supersede any conflicting provisions of general applicability contained
elsewhere herein, during the period from, and including, the commencement
of a SPURS Rate Period to, but excluding, the next succeeding Interest Rate
Adjustment Date (or, if the SPURS Agent does not elect to purchase this
Note on the applicable SPURS Remarketing Date designated for such SPURS
Mode or if after electing to so purchase this Note the SPURS Agent fails to
so purchase this Note for any reason, to the SPURS Remarketing Date).
During the period in which this Note is in a SPURS Mode, this Note shall
bear interest and be subject to remarketing by the applicable SPURS Agent
designated by the Company as described herein and identified in Annex A
hereto.
With respect to this Note in the SPURS Rate Period commencing on the
Original Issue Date, references herein to (i) the SPURS Agent and SPURS
Remarketing Date shall mean the Initial SPURS Agent and the Initial SPURS
Remarketing Date and (ii) the Interest Rate Adjustment Date on which the
SPURS Rate Period commences shall mean the Original Issue Date.
(a) Interest to SPURS Remarketing Date. The Interest Rate Period for
this Note in the SPURS Mode will be established by the Company (as
described under "INTEREST RATE" above) as a period of more than 364 days
and not exceeding the remaining term to the Stated Maturity of this Note;
provided, however, that such Interest Rate Period must end on the day prior
to an Interest Payment Date for this Note. A SPURS Rate Period shall
consist of the period to and excluding the SPURS Remarketing Date and the
period from and including the SPURS Remarketing Date to but excluding the
next succeeding Interest Rate Adjustment Date (set forth in Annex A
hereto), or, if the Remarketing Agent does not purchase the Notes thereon,
the Interest Rate Adjustment Date. The interest rate and, in the case of a
floating interest rate, the Spread (if any), and the Spread Multiplier (if
any), to the SPURS Remarketing Date for this Note if it is in the SPURS
Mode will be determined not later than 11:50 a.m., New York City time, on
the Interest Rate Adjustment Date of this Note, which for the SPURS Mode is
the first day of each Interest Rate Period for this Note. Such interest
rate will be the minimum rate of interest and, in the case of a floating
interest rate, Spread (if any) and Spread Multiplier (if any) necessary in
the judgment of such SPURS Agent to produce a par bid in the secondary
market for this Note on the date the interest is established. The
designated SPURS Remarketing Date shall be an Interest Payment Date within
such Interest Rate Period.
(b) Mandatory Tender. Provided that the SPURS Agent gives notice to
the Company and the Trustee on or before the Notification Date of its
intention to purchase the Notes for remarketing, this Note will be
automatically tendered to such SPURS Agent for purchase on the applicable
SPURS Remarketing Date, except in the circumstances described under
"Conversion or Redemption" below. The purchase price for the tendered
Notes to be paid by the SPURS Agent will be equal to 100% of the aggregate
principal amount thereof. When this Note is tendered to the SPURS Agent
for remarketing, the SPURS Agent may remarket the Note for its own account
at varying prices to be determined by the SPURS Agent at the time of each
sale. If the SPURS Agent elects to remarket the Note, the obligation of
the SPURS Agent to purchase the Note on the SPURS Remarketing Date is
subject to certain condition including no material adverse change in the
condition of the Company and its subsidiaries, considered as one
enterprise, shall have occurred and that no Event of Default (as defined in
the Indenture), or any event which, with the giving of notice or passage of
time, or both, would constitute an Event of Default, with respect to this
Note shall have occurred and be continuing.
(c) Remarketing; SPURS Interest Rate. The SPURS Interest Rate will
be determined by the SPURS Agent by 3:30 p.m., New York City time, on the
Determination Date to the nearest one hundred-thousandth (0.00001) of one
percent per annum, and will be equal to the sum of the Base Rate and the
Applicable Spread, which will be based on the Dollar Price of the Notes as
of the SPURS Remarketing Date.
(d) Notification of Results; Settlement. Provided the SPURS Agent
has previously notified the Company and the Trustee on the Notification
Date of its intention to purchase all tendered Notes on the SPURS
Remarketing Date, the SPURS Agent will notify the Company, the Trustee and
the Depositary by telephone, confirmed in writing, by 4:00 p.m., New York
City time, on the Determination Date, of the SPURS Interest Rate.
If the SPURS Agent does not elect to purchase this Note for
remarketing on the SPURS Remarketing Date or if the SPURS Agent gives
notice of its election to remarket this Note but for any reason does not
purchase all tendered Notes on the SPURS Remarketing Date, then this Note
will be subject to remarketing on such date by a Remarketing Agent
appointed by the Company in the Commercial Paper Term Mode or the Long Term
Rate Mode or a new SPURS Mode established by the Company; provided that, in
such case, the notice period required for conversion shall be the lesser of
ten (10) days and the period commencing the date that the SPURS Agent
notifies the Company that it will not purchase the Notes for remarketing on
the SPURS Remarketing Date or fails to so purchase, as the case may be.
The tendered Note will be automatically delivered to the account of
the Trustee, by book-entry through the Depositary pending payment of the
purchase price therefor, on the applicable SPURS Remarketing Date.
The SPURS Agent will make or cause the Trustee to make payment to the
Participant of each tendering Beneficial Owner of Notes, by book-entry
through the Depositary by the close of business on the SPURS Remarketing
Date against delivery through the Depositary by the close of business on
the SPURS Remarketing Date of such Beneficial Owner's tendered Notes.
The transactions described above will be executed on the SPURS
Remarketing Date through the Depositary in accordance with the procedures
of the Depositary, and the accounts of the respective DTC Participants will
be debited and credited and the Notes delivered by book-entry as necessary
to effect the purchases and sales thereof.
Transactions involving the sale and purchase of the Notes remarketed
by a SPURS Agent on or after a SPURS Remarketing Date will settle in
immediately available funds through the Depositary's Same-Day Funds
Settlement System.
The tender and settlement procedures described above, including
provisions for payment by purchasers of Notes in the remarketing or for
payment to selling Beneficial Owners of tendered Notes, may be modified,
notwithstanding any contrary terms of the Indenture, to the extent required
by the Depositary or, if the book-entry system is no longer available this
Note at the time of the remarketing, to the extent required to facilitate
the tendering and remarketing of this Note in certificated form. In
addition, the SPURS Agent may, notwithstanding any contrary terms of the
Indenture, modify the settlement procedures set forth above in order to
facilitate the settlement process.
As long as the Depositary's nominee holds the certificates
representing any Notes in the book-entry system of the Depositary, no
certificates for this Note will be delivered by any selling Beneficial
Owner to reflect any transfer of such Notes effected in the remarketing.
In addition, under the terms of this Note, the Company has agreed that,
notwithstanding any provision to the contrary set forth in the Indenture,
(a) it will use reasonable commercial efforts to maintain this Note in
book-entry form with the Depositary or any successor thereto and to appoint
a successor depositary to the extent necessary to maintain this Note in
book-entry form and (b) it will waive any discretionary right it otherwise
has under the Indenture to cause this Note to be issued in certificated
form.
(e) Conversion or Redemption. If the SPURS Agent elects to remarket
the Notes on the SPURS Remarketing Date, this Note will be subject to
mandatory tender to the SPURS Agent for remarketing on such date, subject
to the Company's right to convert the Note to a new Interest Rate Mode or
to redeem the Note from the SPURS Agent, in each case as described in the
next sentence. The Company will notify the SPURS Agent and the Trustee not
later than the Business Day immediately preceding the Determination Date if
the Company irrevocably elects to exercise its right to either convert the
Note to a new Interest Rate Mode or to redeem the Note from the SPURS Agent
at the Optional Redemption Price, in each case, on the applicable SPURS
Remarketing Date.
In the event that the Company irrevocably elects to convert the Note
to a new Interest Rate Mode, then as of the SPURS Remarketing Date, this
Note will be subject to remarketing on such date by a Remarketing Agent
appointed by the Company in a new SPURS Mode, a Long Term Rate Mode or a
Commercial Paper Term Mode established by the Company in accordance with
the procedures set forth herein; provided that, in such case, the notice
required for conversion shall be given no later than the Initial
Determination Date. In such case, the Company shall pay to the Initial
SPURS Agent the excess of the Dollar Price of the Notes over 100% of the
principal amount of the Notes in same-day funds by wire transfer to an
account designated by the Initial SPURS Agent.
In the event that the Company irrevocably elects to redeem this Note
from the SPURS Agent, it shall pay such SPURS Agent the Optional Redemption
Price in same-day funds by wire transfer to an account designated by the
SPURS Agent on the SPURS Remarketing Date.
If notice has been given as provided in the Indenture and funds for
the redemption of this Note called for redemption shall have been made
available on the redemption date referred to in such notice, this Note
shall cease to bear interest on the date fixed for such redemption
specified in such notice and the only right of the SPURS Agent from and
after the redemption date shall be to receive payment of the Optional
Redemption Price upon surrender of this Note in accordance with such
notice.
FLOATING INTEREST RATES
While this Note bears interest in the Long Term Rate Mode or the SPURS
Mode (with respect to the period from, and including, the Interest Rate
Adjustment Date commencing such period to, but excluding, the SPURS
Remarketing Date), the Company may elect a floating interest rate by
providing a notice, which will be submitted or promptly confirmed in
writing (which includes facsimile or appropriate electronic media),
received by the Trustee and the Remarketing Agent (a "Floating Interest
Rate Notice") for such Note not less than ten (10) days prior to the
Interest Rate Adjustment Date for such Long Term Rate Period or SPURS Rate
Period. The Floating Interest Rate Notice must identify by CUSIP number or
otherwise the portion of the Note to which it relates and state the
Interest Rate Period (or portion thereof, in the case of the SPURS Mode)
therefor to which it relates. Each Floating Interest Rate Notice must also
state the Interest Rate Basis or Bases, the initial Interest Reset Date,
the Interest Reset Period and Interest Reset Dates, the Interest Rate
Period and Interest Payment Dates, the Index Maturity and the Floating Rate
Maximum Interest Rate and/or Floating Rate Minimum Interest Rate, if any.
If one or more of the applicable Interest Rate Bases is LIBOR or the CMT
Rate, the Floating Interest Rate Notice will also specify the Index
Currency and Designated LIBOR Page or the Designated CMT Maturity Index and
Designated CMT Telerate Page, respectively.
If this Note bears interest at a floating rate in a Long Term Rate
Period or SPURS Rate Period, such Note will bear interest at the rate
determined by reference to the applicable Interest Rate Basis or Bases (a)
plus or minus the Spread, if any, and/or (b) multiplied by the Spread
Multiplier, if any, specified by the Remarketing Agent, in the case of a
Long Term Rate Period, or the SPURS Agent, in the case of a SPURS Rate
Period. Commencing on the Interest Rate Adjustment Date for such Interest
Rate Period, the rate at which interest on such Note will be payable will
be reset as of each Interest Reset Date during such Interest Rate Period
specified in the applicable Floating Interest Rate Notice.
The applicable floating interest rate on this Note during any Interest
Rate Period will be determined by reference to the applicable Interest Rate
Basis or Interest Rate Bases, which may include (i) the CD Rate, (ii) the
CMT Rate, (iii) the Federal Funds Rate, (iv) LIBOR, (v) the Prime Rate,
(vi) the Treasury Rate or (vii) such other Interest Rate Basis or interest
rate formula as may be specified in the applicable Floating Interest Rate
Notice (each, an "Interest Rate Basis").
Unless otherwise specified in the applicable Floating Interest Rate
Notice, the interest rate with respect to each Interest Rate Basis will be
determined in accordance with the applicable provisions below. Except as
set forth above or in the applicable Floating Interest Rate Notice, the
interest rate in effect on each day will be (i) if such day is an Interest
Reset Date, the interest rate determined as of the Interest Determination
Date immediately preceding such Interest Reset Date or (ii), if such day is
not an Interest Reset Date, the interest rate determined as of the Interest
Determination Date immediately preceding the most recent Interest Reset
Date. If any Interest Reset Date would otherwise be a day that is not a
Business Day, such Interest Reset Date will be postponed to the next
succeeding Business Day, unless LIBOR is an applicable Interest Rate Basis
and such Business Day falls in the next succeeding calendar month, in which
case such Interest Reset Date will be the immediately preceding Business
Day. In addition, if the Treasury Rate is an applicable Interest Rate
Basis and the Interest Determination Date would otherwise fall on an
Interest Reset Date, then such Interest Reset Date will be postponed to the
next succeeding Business Day.
The applicable Floating Interest Rate Notice will specify whether the
rate of interest will be reset daily, weekly, monthly, quarterly,
semiannually or annually or on such other specified basis (each, an
"Interest Reset Period") and the dates on which such rate of interest will
be reset (each, an "Interest Reset Date"). Unless otherwise specified in
the applicable Floating Interest Rate Notice, the Interest Reset Dates will
be, in the case of a floating interest rate which resets: (i) daily, each
Business Day; (ii) weekly, the Wednesday of each week (unless the Treasury
Rate is an applicable Interest Rate Basis, in which case the Tuesday of
each week except as described below); (iii) monthly, the third Wednesday of
each month; (iv) quarterly, the third Wednesday of March, June, September
and December of each year, (v) semiannually, the third Wednesday of the two
months specified in the applicable Floating Interest Rate Notice; and (vi)
annually, the third Wednesday of the month specified in the applicable
Floating Interest Rate Notice.
The interest rate applicable to each Interest Reset Period commencing
on the related Interest Reset Date will be the rate determined as of the
applicable Interest Determination Date. The "Interest Determination Date"
with respect to the CD Rate, the CMT Rate, the Federal Funds Rate and the
Prime Rate will be the second Business Day immediately preceding the
applicable Interest Reset Date; and the "Interest Determination Date" with
respect to LIBOR will be the second London Business Day immediately
preceding the applicable Interest Reset Date, unless the Index Currency is
British pounds sterling, in which case the "Interest Determination Date"
will be the applicable Interest Reset Date. The "Interest Determination
Date" with respect to the Treasury Rate will be the day within the week in
which the applicable Interest Reset Date falls upon which day Treasury
Bills (as defined below) are normally auctioned (Treasury Bills are
normally sold at an auction held on Monday of each week, unless that day is
a legal holiday, in which case the auction is normally held on the
following Tuesday, except that such auction may be held on the preceding
Friday); provided, however, that if an auction is held on the Friday of the
week preceding the applicable Interest Reset Date, the "Interest
Determination Date" will be such preceding Friday. If the interest rate of
this Note is a floating interest rate determined with reference to two or
more Interest Rate Bases specified in the applicable Floating Interest Rate
Notice, the "Interest Determination Date" pertaining to this Note will be
the most recent Business Day which is at least two Business Days prior to
the applicable Interest Reset Date on which each Interest Rate Basis is
determinable. Each Interest Rate Basis will be determined as of such date,
and the applicable interest rate will take effect on the related Interest
Reset Date.
Either or both of the following may also apply to the floating
interest rate on this Note for an Interest Rate Period: (i) a floating rate
maximum interest rate, or ceiling, that may accrue during any Interest
Reset Period (the "Floating Rate Maximum Interest Rate") and (ii) a
floating rate minimum interest rate, or floor, that may accrue during any
Interest Reset Period (the "Floating Rate Minimum Interest Rate"). In
addition to any Floating Rate Maximum Interest Rate that may apply, the
interest rate on this Note will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States
laws of general application.
Except as provided below or in the applicable Floating Interest Rate
Notice, interest will be payable, in the case of floating interest rates
which reset: (i) daily, weekly or monthly, on the third Wednesday of each
month or on the third Wednesday of March, June, September and December of
each year, as specified in the applicable Floating Interest Rate Notice;
(ii) quarterly, on the third Wednesday of March, June, September and
December of each year; (iii) semiannually, on the third Wednesday of the
two months of each year specified in the applicable Floating Interest Rate
Notice; and (iv) annually, on the third Wednesday of the month of each year
specified in the applicable Floating Interest Rate Notice and, in each
case, on the Business Day immediately following the applicable Long Term
Rate Period or SPURS Rate Period, as the case may be. If any Interest
Payment Date for the payment of interest at a floating rate (other than
following the end of the applicable Long Term Rate Period or SPURS Rate
Period, as the case may be) would otherwise be a day that is not a Business
Day, such Interest Payment Date will be postponed to the next succeeding
Business Day, except that if LIBOR is an applicable Interest Rate Basis and
such Business Day falls in the next succeeding calendar month, such
Interest Payment Date will be the immediately preceding Business Day.
All percentages resulting from any calculation of floating interest
rates will be rounded to the nearest one hundred thousandth of a percentage
point, with five one-millionths of a percentage point rounded upwards
(e.g., 9.876545% (or .09876545) would be rounded to 9.87655% (or
.0987655)), and all amounts used in or resulting from such calculation will
be rounded, in the case of United States dollars, to the nearest cent or,
in the case of a foreign currency or composite currency, to the nearest
unit (with one-half cent or unit being rounded upwards).
Accrued floating rate interest will be calculated by multiplying the
principal amount of the this Note by an accrued interest factor. Such
accrued interest factor will be computed by adding the interest factor
calculated for each day in the applicable Interest Reset Period. Unless
otherwise specified in the applicable Floating Interest Rate Notice, the
interest factor for each such day will be computed by dividing the interest
rate applicable to such day by 360, if an applicable Interest Rate Basis is
the CD Rate, the Federal Funds Rate, LIBOR or the Prime Rate, or by the
actual number of days in the year if an applicable Interest Rate Basis is
the CMT Rate or the Treasury Rate. Unless otherwise specified in the
applicable Floating Interest Rate Notice, if the floating interest rate is
calculated with reference to two or more Interest Rate Bases, the interest
factor will be calculated in each period in the same manner as if only one
of the applicable Interest Rate Bases applied as specified in the
applicable Floating Interest Rate Notice.
If this Note bears interest at a floating rate, the applicable
Remarketing Dealer will determine the interest rate in effect from the
Interest Rate Adjustment Date for this Note to the initial Interest Reset
Date. A calculation agent selected by the Company (a "Calculation Agent")
will determine the interest rate in effect for each Interest Reset Period
thereafter. Upon request of the Beneficial Owner of this Note, after any
Interest Rate Adjustment Date, the Calculation Agent or the Remarketing
Dealer will disclose the interest rate and, in the case of a floating
interest rate, Interest Rate Basis or Bases, Spread (if any) and Spread
Multiplier (if any), and in each case the other terms applicable to this
Note then in effect and, if determined, the interest rate that will become
effective as a result of a determination made for the next succeeding
Interest Reset Date with respect to this Note. Except as described herein
if this Note is earning interest at floating rates, no notice of the
applicable interest rate, Spread (if any) or Spread Multiplier (if any)
will be sent to the Beneficial Owner of this Note.
Unless otherwise specified in the applicable Floating Interest Rate
Notice, the "Calculation Date," if applicable, pertaining to any Interest
Determination Date will be the earlier of (i) the tenth calendar day after
such Interest Determination Date or, if such day is not a Business Day, the
next succeeding Business Day or (ii) the Business Day immediately preceding
the applicable Interest Payment Date or Maturity, as the case may be.
CD Rate. If an Interest Rate Basis for this Note is specified in the
applicable Floating Interest Rate Notice as the "CD Rate," the CD Rate
shall mean, with respect to any Interest Determination Date relating to
this Note for which the interest rate is determined with reference to the
CD Rate (a "CD Rate Interest Determination Date"), the rate on such date
for negotiable United States dollar certificates of deposit having the
Index Maturity specified in the applicable Floating Interest Rate Notice as
published in H.15(519) under the heading "CDs (Secondary Market)," or, if
not published by 3:00 p.m., New York City time, on the related Calculation
Date, the rate on such CD Rate Interest Determination Date for negotiable
United States dollar certificates of deposit of the Index Maturity
specified in the applicable Floating Interest Rate Notice as published in
Composite Quotations under the heading "Certificates of Deposit." If such
rate is not yet published in either H.15(519) or Composite Quotations by
3:00 p.m., New York City time, on the related Calculation Date, then the CD
Rate on such CD Rate Interest Determination Date will be calculated by the
Calculation Agent and will be the arithmetic mean of the secondary market
offered rates as of 10:00 a.m., New York City time, on such CD Rate
Interest Determination Date, of three leading nonbank dealers in negotiable
United States dollar certificates of deposit in the City of New York (which
may include the Remarketing Agent or its affiliates) selected by the
Calculation Agent, after consultation with the Company, for negotiable
United States dollars certificates of deposit of major United States money
center banks for negotiable certificates of deposit with a remaining
maturity closest to the Index Maturity specified in the applicable Floating
Interest Rate Notice in an amount that is representative for a single
transaction in that market at that time; provided, however, that if the
dealers so selected by the Calculation Agent are not quoting as mentioned
in this sentence, the CD Rate determined as of such CD Rate Interest
Determination Date will be the CD Rate in effect on such CD Rate Interest
Determination Date.
CMT Rate. If an Interest Rate Basis for this Note is specified in the
applicable Floating Interest Rate Notice as the "CMT Rate," the CMT Rate
shall mean, with respect to any Interest Determination Date relating to
this Note for which the interest rate is determined with reference to the
CMT Rate (a "CMT Rate Interest Determination Date"), the rate displayed on
the Designated CMT Telerate Page (as defined below) under the caption
"...Treasury Constant Maturities ... Federal Reserve Board Release H.15 ...
Mondays Approximately 3:45 P.M.," under the column for the Designated CMT
Maturity Index (as defined below) for (i) if the Designated CMT Telerate
Page is 7055, the rate on such CMT Rate Interest Determination Date and
(ii) if the Designated CMT Telerate Page is 7052, the weekly or monthly
average, as specified in the Floating Interest Rate Notice, for the week or
the month, as applicable, ended immediately preceding the week or the
month, as applicable, in which the related CMT Rate Interest Determination
Date occurs. If such rate is no longer displayed on the relevant page or
is not displayed by 3:00 p.m., New York City time, on the related
Calculation Date, then the CMT Rate for such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as published in H.15(519). If such rate is
no longer published or is not published by 3:00 p.m., New York City time,
on the related Calculation Date, then the CMT Rate on such CMT Rate
Interest Determination Date will be such treasury constant maturity rate
for the Designated CMT Maturity Index (or other United States Treasury rate
for the Designated CMT Maturity Index) for the CMT Rate Interest
Determination Date with respect to such Interest Reset Date as may then be
published by either the Board of Governors of the Federal Reserve System or
the United States Department of the Treasury that the Calculation Agent
determines to be comparable to the rate formerly displayed on the
Designated CMT Telerate Page and published in H.15(519). If such
information is not provided by 3:00 p.m., New York City time, on the
related Calculation Date, then the CMT Rate on the CMT Rate Interest
Determination Date will be calculated by the Calculation Agent and will be
a yield to maturity, based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30 p.m., New York City
time, on such CMT Rate Interest Determination Date reported, according to
their written records, by three leading primary United States government
securties dealers (each, a "Reference Dealer") in the City of New York
(which may include the Remarketing Agent or its affiliates) selected by the
Calculation Agent after consultation with the Company (from five such
Reference Dealers selected by the Calculation Agent, after consultation
with the Company, and eliminating the highest quotation (or, in the event
of equality, one of the highest) and the lowest quotation (or, in the event
of equality, one of the lowest)), for the most recently issued direct
noncallable fixed rate obligations of the United States ("Treasury Notes")
with an original maturity of approximately the Designated CMT Maturity
Index and a remaining term to maturity of not less than such Designated CMT
Maturity Index minus one year. If the Calculation Agent is unable to
obtain three such Treasury Note quotations, the CMT Rate on such CMT Rate
Interest Determination Date will be calculated by the Calculation Agent and
will be a yield to maturity based on the arithmetic mean of the secondary
market offer side prices as of approximately 3:30 p.m., New York City time,
on such CMT Rate Interest Determination Date of three Reference Dealers in
the City of New York (from five such Reference Dealers selected by the
Calculation Agent, after consultation with the Company, and eliminating the
highest quotation (or, in the event of equality, one of the highest) and
the lowest quotation (or, in the event of equality, one of the lowest)),
for Treasury Notes with an original maturity of the number of years that is
the next highest to the Designated CMT Maturity Index and a remaining term
to maturity closest to the Designated CMT Maturity Index and in an amount
of at least U.S. $100 million. If three or four (and not five) of such
Reference Dealers are quoting as described above, then the CMT Rate will be
based on the arithmetic mean of the offer prices obtained and neither the
highest nor the lowest of such quotes will be eliminated; provided,
however, that if fewer than three Reference Dealers so selected by the
Calculation Agent, after consultation with the Company, are quoting as
mentioned herein, the CMT Rate determined as of such CMT Rate Interest
Determination Date will be the CMT Rate in effect on such CMT Rate Interest
Determination Date. If two Treasury Notes with an original maturity as
described in the second preceding sentence have remaining terms to maturity
equally close to the Designated CMT Maturity Index, the Calculation Agent,
after consultation with the Company, will obtain from five Reference
Dealers quotations for the Treasury Note with the shorter remaining term to
maturity.
Federal Funds Rate. If an Interest Rate Basis for this Note is
specified in the applicable Floating Interest Rate Notice, as the "Federal
Funds Rate", the Federal Funds Rate means, with respect to any Interest
Determination Date relating to this Note for which the interest rate is
determined with reference to the Federal Funds Rate (a "Federal Funds Rate
Interest Determination Date"), the rate on such date for United States
dollar federal funds as published in H.15(519) under the heading "Federal
Funds (Effective)" or, if not published by 3:00 p.m., New York City time,
on the Calculation Date, the rate on such Federal Funds Rate Interest
Determination Date as published in Composite Quotations under the heading
"Federal Funds/Effective Rate." If such rate is not published in either
H.15(519) or Composite Quotations by 3:00 p.m., New York City time, on the
related Calculation Date, then the Federal Funds Rate on such Federal Funds
Rate Interest Determination Date will be calculated by the Calculation
Agent and will be the arithmetic mean of the rates for the last transaction
in overnight United States dollar federal funds arranged by three leading
brokers of federal funds transactions in the City of New York (which may
include the Remarketing Agent or its affiliates) selected by the
Calculation Agent after consultation with the Company, prior to 9:00 a.m.,
New York City time, on such Federal Funds Rate Interest Determination Date;
provided, however, that if the brokers so selected by the Calculation Agent
are not quoting as mentioned in this sentence, the Federal Funds Rate
determined as of such Federal Funds Rate Interest Determination Date will
be the Federal Funds Rate in effect on such Federal Funds Rate Interest
Determination Date.
LIBOR. If an Interest Rate Basis for this Note is specified in the
applicable Floating Interest Rate Notice as "LIBOR," LIBOR shall mean the
rate determined by the Calculation Agent as of the applicable Interest
Determination Date (a "LIBOR Interest Determination Date") in accordance
with the following provisions:
(i) If (a) "LIBOR Reuters" is specified in the applicable Floating
Interest Rate Notice, the arithmetic mean of the offered rates (unless
the Designated LIBOR Page by its terms provides only for a single
rate, in which case such single rate will be used) for deposits in the
Index Currency having the Index Maturity specified in the applicable
Floating Interest Rate Notice, commencing on the applicable Interest
Reset Date, that appear (or, if only a single rate is required as
aforesaid, appears) on the Designated LIBOR Page as of 11:00 a.m.,
London time, on such LIBOR Interest Determination Date, or (b) "LIBOR
Telerate" is specified in the applicable Floating Interest Rate
Notice, or if neither "LIBOR Reuters" nor "LIBOR Telerate" is
specified in the applicable Floating Interest Rate Notice as the
method for calculating LIBOR, the rate for deposits in the Index
Currency having the Index Maturity specified in the applicable
Floating Interest Rate Notice, commencing on such Interest Reset Date,
that appears on the Designated LIBOR Page as of 11:00 a.m., London
time, on such LIBOR Interest Determination Date. If fewer than two
such offered rates appear, or if no such rate appears, as applicable,
LIBOR on such LIBOR Interest Determination Date will be determined in
accordance with the provisions described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which
fewer than two offered rates appear, or no rate appears, as the case
may be, on the Designated LIBOR Page as specified in clause(i) above,
the Calculation Agent will request the principal London offices of
each of four major reference banks in the London interbank market, as
selected by the Calculation Agent, after consultation with the
Company, to provide the Calculation Agent with its offered quotation
for deposits in the Index Currency for the period of the Index
Maturity specified in the applicable Floating Interest Rate Notice,
commencing on the applicable Interest Reset Date, to prime banks in
the London interbank market at approximately 11:00 a.m., London time,
on such LIBOR Interest Determination Date and in a principal amount
that is representative for a single transaction in such Index Currency
in such market at such time. If at least two such quotations are so
provided, then LIBOR on such LIBOR Interest Determination Date will be
the arithmetic mean of such quotations. If fewer than two such
quotations are so provided, then LIBOR on such LIBOR Interest
Determination Date will be the arithmetic mean of the rates quoted at
approximately 11:00 a.m., in the applicable Principal Financial
Center, on such LIBOR Interest Determination Date by three major banks
in such Principal Financial Center selected by the Calculation Agent,
after consultation with the Company, for loans in the Index Currency
to leading European banks, having the Index Maturity specified in the
applicable Floating Interest Rate Notice and in a principal amount
that is representative for a single transaction in such Index Currency
in such market at such time; provided, however, that if the banks so
selected by the Calculation Agent are not quoting as mentioned in this
sentence, LIBOR determined as of such LIBOR Interest Determination
Date will be LIBOR in effect on such LIBOR Interest Determination Date.
Prime Rate. If an Interest Rate Basis for this Note is specified in
the applicable Floating Interest Rate Notice as the "Prime Rate," Prime
Rate shall mean, with respect to any Interest Determination Date relating
to this Note for which the interest rate is determined with reference to
the Prime Rate (a "Prime Rate Interest Determination Date"), the rate on
such date as such rate is published in H.15(519) under the heading "Bank
Prime Loan." If such rate is not published prior to 3:00 p.m., New York
City time, on the related Calculation Date, then the Prime Rate will be the
arithmetic mean of the rates of interest publicly announced by each bank
that appears on the Reuters Screen U.S. PRIME 1 Page as such bank's prime
rate or base lending rate as in effect for such Prime Rate Interest
Determination Date. If fewer than four such rates appear on the Reuters
Screen U.S. PRIME 1 Page for such Prime Rate Interest Determination Date,
the Prime Rate will be the arithmetic mean of the prime rates quoted on the
basis of the actual number of days in the year divided by a 360-day year as
of the close of business on such Prime Rate Interest Determination Date by
four major money center banks (which may include the Calculation Agent) in
the City of New York selected by the Calculation Agent, after consultation
with the Company. If fewer than four such quotations are so provided, the
Prime Rate will be the arithmetic mean of four prime rates quoted on the
basis of the actual number of days in the year divided by a 360-day year as
of the close of business on such Prime Rate Interest Determination Date as
furnished in the City of New York by the major money center banks, if any,
that have provided such quotations and by as many substitute banks or trust
companies (which may include the Calculation Agent) as necessary in order
to obtain four such prime rate quotations, provided such substitute banks
or trust companies are organized and doing business under the laws of the
United States, or any State thereof, have total equity capital of at least
U.S. $500 million and are each subject to supervision or examination by
Federal or State authority, selected by the Calculation Agent, after
consultation with the Company, to provide such rate or rates; provided,
however, that if the banks or trust companies so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the Prime
Rate determined as of such Prime Rate Interest Determination Date will be
the Prime Rate in effect on such Prime Rate Interest Determination Date.
Treasury Rate. If an Interest Rate Basis for this Note is specified
in the applicable Floating Interest Rate Notice as the "Treasury Rate,"
Treasury Rate means, with respect to any Interest Determination Date
relating to this Note for which the interest rate is determined with
reference to the Treasury Rate (a "Treasury Rate Interest Determination
Date"), as the rate from the auction held on such Treasury Rate Interest
Determination Date (the "Auction") of direct obligations of the United
States ("Treasury Bills") having the Index Maturity specified in the
applicable Floating Interest Rate Notice, as such rate is published in
H.15(519) under the heading "Treasury Bills-auction average (investment)"
or, if not published by 3:00 p.m., New York City time, on the related
Calculation Date, the auction average rate of such Treasury Bills
(expressed as a bond equivalent on the basis of a year of 365 or 366 days,
as applicable, and applied on a daily basis) as otherwise announced by the
United States Department of the Treasury. In the event that the results of
the Auction of Treasury Bills having the Index Maturity specified in the
applicable Floating Interest Rate Notice are not reported as provided above
by 3:00 p.m., New York City time, on such Calculation Date, or if no such
Auction is held, then the Treasury Rate will be calculated by the
Calculation Agent, and will be a yield to maturity (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) of the arithmetic mean of the secondary market
bid rates, as of approximately 3:30 p.m., New York City time, on such
Treasury Rate Interest Determination Date, of three leading primary United
States government securities dealers (which may include the Remarketing
Agent or its affiliates) selected by the Calculation Agent, after
consultation with the Company, for the issue of Treasury Bills with a
remaining maturity closest to the Index Maturity specified in the
applicable Floating Interest Rate Notice; provided, however, that if the
dealers so selected by the Calculation Agent are not quoting as mentioned
in this sentence, the Treasury Rate determined as of such Treasury Rate
Interest Determination Date will be the Treasury Rate in effect on such
Treasury Rate Interest Determination Date.
OTHER PROVISIONS
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Company and the rights of the Holders of the Securities of each series
to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount
of the Securities at the time Outstanding of each series to be affected and
of the Holders of 66 2/3% in principal amount of the Securities at the time
Outstanding of all series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal
amount of the Securities of each series at the time Outstanding, on behalf
of the Holders of all Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. To the extent permitted by
law, any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if
any) and interest on this Note at the times, place and rate, and in the
coin or currency, herein prescribed.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
This Note shall be governed by and construed in accordance with the
laws of The State of New York.<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT MIN ACT--______CUSTODIAN_____
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right Under Uniform Gifts to Minors Act
of survivorship and not as
tenants in common ___________________________
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please Insert Social Security or
Other Identifying Number of Assignee
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
the within Security of Tampa Electric Company and does hereby irrevocably
constitute and appoint
__________________________________________________ attorney to transfer
said Security on the books of the Company, with full power of substitution in
the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular,
without alteration or enlargement or any change whatsoever.
<PAGE>
ANNEX A
Remarketed Note Due 2038
Initial Interest Rate Period
CUSIP Number:
Principal Amount: $50,000,000
Original Issue Date: July ___, 1998
Issue Price: 100%
Stated Maturity: July 15, 2038
Initial Interest Rate: [ ]% per annum
Interest Payment Dates: July 15 and January 15, commencing January 15,
1999
Record Dates: Fifteenth calendar day immediately preceding
the related Interest Payment Date whether or
not a Business Day
Initial SPURS Agent: Citibank, N.A.
Initial SPURS
Remarketing Date: July 15, 2001
SPURS Period: July 15, 2001 up to,
but excluding, July 15, 2011
Base Rate: 5.41%
SPURS Interest Rate:
Reference Corporate Dealers: Citicorp Securities, Inc.
Morgan Stanley & Co. Incorporated
Bear Stearns & Co. Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Reference Treasury Dealers: Citicorp Securities, Inc.
Morgan Stanley & Co. Incorporated
Bear Stearns & Co. Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
<PAGE>
Subsequent Interest Rate Period(s)
CUSIP Number:
Principal Amount:
Interest Rate Adjustment Date:
Record Date(s):
Interest Payment Date(s):
Interest Rate Mode:
[ ] Commercial Paper Term Mode
[ ] Long Term Rate Mode
[ ] SPURS Mode
[ ] SPURS Agent:
[ ] SPURS Remarketing Date:
[ ] SPURS Rate Period:
[ ] Base Rate:
[ ] SPURS Interest Rate:
[ ] Reference Corporate Dealers:
[ ] Reference Treasury Dealers:
<PAGE>
Interest Rate:
[ ] Fixed Rate:
[ ] Floating Rate:
Calculation Agent: . . . . . . . . . . . . . . . .
Initial Interest Rate to Initial Interest Reset Date:
Interest Rate Basis(es):
[ ] CD Rate
Index Maturity:
[ ] CMT Rate
Index Maturity:
Designated CMT Telerate Page:
[ ] Commercial Paper Rate
Index Maturity:
[ ] Federal Funds Rate
[ ] LIBOR
[ ] LIBOR Reuters
Index Currency:
Index Maturity:
[ ] LIBOR Telerate
Index Currency:
Index Maturity:
[ ] Prime Rate
[ ] Treasury Rate
Index Maturity:
Spread (+/-):
Spread Multiplier:
Floating Rate Maximum Interest Rate:
Floating Rate Minimum Interest Rate:
Initial Interest Reset Date:
Interest Reset Date:
Interest Reset Period(s):
Day Count Convention:
[ ] Actual/360
[ ] Actual/Actual
[ ] 30/360
Applicable Interest Rate Basis:
Optional Redemption Provisions (Long Term Rate Mode):
Applicable Redemption Period Redemption Price
Other or Alternative Terms of Optional Repayment:
Early Remarketing Provisions (Long Term Rate Mode):
Initial Early Remarketing Date:_____________
Initial Early Remarketing Premium:__________
Annual Early Remarketing Premium Percentage Reduction:_________
Other or Alternative Terms of Early Remarketing:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
Other Provisions:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
Exhibit 5.1
Telephone: (617) 573-0100 Facsimile: (617) 227-4420
July 28, 1998
Tampa Electric Company
702 North Franklin Street
Tampa, Florida 33602
Reference is made to our opinion dated July 13, 1998 and included as
Exhibit 5.1 to the Registration Statement (the "Registration Statement") on
Form S-3 (File No. 333-55875) filed by Tampa Electric Company (the
"Company"), a Florida corporation, with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended
(the "Securities Act"). We are rendering this supplemental opinion in
connection with the prospectus supplement (the "Prospectus Supplement")
dated July 28, 1998, filed by the Company with the Commission pursuant to
Rule 424 under the Securities Act. The Prospectus Supplement relates to
the offering by the Company of $50 million principal amount of Remarketed
Notes due 2038 (the "Notes"), which Notes are covered by the Registration
Statement. We understand that the Notes are to be offered and sold in the
manner described in the Prospectus Supplement.
We have acted as your counsel in connection with the preparation of
the Registration Statement and the Prospectus Supplement. We are familiar
with the proceedings of the Board of Directors of the Company in connection
with the authorization, issuance and sale of the Notes. We have examined
such other documents as we consider necessary to render this opinion.
We advise you that, in our opinion, when the Notes have been duly
executed and authenticated in accordance with the Indenture relating to the
Notes and issued and sold as contemplated in the Prospectus Supplement, the
Notes 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 Notes, we
are rendering such opinion as though the laws of Massachusetts governed,
notwithstanding the recitations in such instructions that the laws of
another jurisdiction may govern.
We hereby consent to the filing of this opinion as part of the
Registration Statement and to the reference to our firm under the caption
"Validity of the Notes and Certain Other Legal Matters" in the Prospectus
Supplement.
Very truly yours,
PALMER & DODGE LLP
