POWER & LIGHT COMPANY FIRST MORTGAGE BONDS UNDERWRITING AGREEMENT
Exhibit
1(c)
POWER
& LIGHT COMPANY
FIRST
MORTGAGE BONDS
______________________________
______________________________
[Date]
To
the
Representatives named in Schedule I
hereto
of
the Underwriters
named
in
Schedule II hereto
Ladies
and Gentlemen:
1. Introductory.
Florida Power & Light Company, a Florida corporation (“FPL”), proposes to
issue and sell its first mortgage bonds (“First Mortgage Bonds”) of the series
designation[s], with the terms and in the principal amount[s] specified in
Schedule I hereto (the “Bonds”). FPL hereby confirms its agreement with the
several Underwriters (as defined below) as set forth herein.
The
term
“Underwriters” as used herein shall be deemed to mean the entity or several
entities named in Schedule II hereto and any underwriter substituted as provided
in Section 5 hereof, and the term “Underwriter” shall be deemed to mean one
of such Underwriters. If the entity or entities listed in Schedule I hereto
(the
“Representatives”) are the same as the entity or entities listed in Schedule II
hereto, then the terms “Underwriters” and “Representatives,” as used herein,
shall each be deemed to refer to such entity or entities. The Representatives
represent that they have been authorized by each Underwriter to enter into
this
agreement on behalf of such Underwriter and to act for it in the manner herein
provided. All obligations of the Underwriters hereunder are several and not
joint. If more than one entity is named in Schedule I hereto, any action
under or in respect of this agreement may be taken by such entities jointly
as
the Representatives or by one of the entities acting on behalf of the
Representatives and such action will be binding upon all the
Underwriters.
2. Description
of the Bonds. The Bonds [of each series] will be a series of First
Mortgage Bonds issued by FPL under its Mortgage and Deed of Trust, dated
as of
January 1, 1944, to Deutsche Bank Trust Company Americas (formerly known as
Bankers Trust Company), as Trustee (the “Mortgage Trustee”), and The Florida
National Bank of Jacksonville (now resigned), as heretofore supplemented
and as
it will be further supplemented by a supplemental indenture relating to the
Bonds (the “Supplemental Indenture”) in substantially the form heretofore
delivered to the Representatives. Such Mortgage and Deed of Trust as it has
been
and will be so supplemented is hereinafter called the “Mortgage.”
3. Representations
and Warranties of FPL. FPL represents and warrants to the several
Underwriters that:
(a) FPL
has,
together with Florida Power & Light Company Trust I, Florida Power
& Light Company Trust II (together with Florida Power & Light
Company Trust I, the “FPL Trusts”), FPL Group, Inc., FPL Group Capital Inc,
FPL Group Capital Trust II, FPL Group Capital Trust III, FPL Group
Trust I, and FPL Group Trust II filed with the Securities and Exchange
Commission (the “Commission”) a joint registration statement on Form S-3,
including a prospectus (Registration Statement Nos. 333-______,
333-______-01, 333-______-02, 333-_______-03, 333-_______-04, 333-_______-05,
333-_______-06, 333-_______-07 and 333-_______-08) (“Registration Statement
No. 333-______”), for the registration under the Securities Act of 1933, as
amended (the “Securities Act”), of (a) an unspecified aggregate amount of
(i) First Mortgage Bonds, (ii) FPL junior subordinated debentures
(“FPL Junior Subordinated Debentures”), and (iii) preferred trust
securities of the FPL Trusts (“FPL Preferred Trust Securities”), (b) FPL’s
guarantee of the FPL Preferred Trust Securities (the “FPL Trust Guarantee”),
(c) an unspecified aggregate amount of (i) FPL Group Capital’s debt
securities (“FPL Group Capital Senior Debt Securities”), (ii) FPL Group
Capital’s junior subordinated debentures (“FPL Group Capital Junior Subordinated
Debentures”), (iii) FPL Group’s junior subordinated debentures, (iv) FPL
Group’s debt securities, (v) preferred trust securities of FPL Group
Trust I and FPL Group Trust II (“FPL Group Trust Preferred Trust
Securities”) and (vi) preferred trust securities of FPL Group Capital
Trust II and FPL Group Capital Trust III (“FPL Group Capital Trust
Preferred Trust Securities”), (d) FPL Group’s guarantees (the “FPL Group
Guarantees”) related to the FPL Group Capital Senior Debt Securities, FPL Group
Capital Junior Subordinated Debentures, FPL Group Trust Preferred Trust
Securities and FPL Group Capital Trust Preferred Trust Securities. Such
registration statement has become effective and no stop order suspending
such
effectiveness has been issued under the Securities Act and no proceedings
for
that purpose have been instituted or are pending or, to the knowledge of
FPL,
threatened by the Commission. References herein to the term “Registration
Statement” as of any given time shall mean Registration Statement
No. 333-______, as amended or supplemented to such time, including all
documents incorporated by reference therein as of such time pursuant to Item
12
of Form S-3 (“Incorporated Documents”) and any prospectus, preliminary
prospectus supplement or prospectus supplement relating to the Bonds deemed
to
be a part thereof pursuant to Rule 430B that has not been superseded or
modified. References herein to the term “Registration Statement” without
reference to a time means the Registration Statement as of [A.M./P.M.], New
York
City time, [_______] [on the date of this agreement] (which date and time
is the
earlier of the date and time of (x) the first use of the preliminary prospectus
supplement relating to the Bonds and (y) the first contract of sale of the
Bonds), which time shall be considered the “Effective Date” of the Registration
Statement. For purposes of the definitions of “Registration Statement” in the
preceding two sentences, information contained in any prospectus, preliminary
prospectus supplement or prospectus supplement that is deemed retroactively
to
be a part of the Registration Statement pursuant to Rule 430B shall be
considered to be included in the Registration Statement as of the time specified
in Rule 430B. References herein to the term “Pricing Prospectus” shall mean the
prospectus relating to FPL and Florida Power & Light Company Trust forming a
part of Registration
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Statement
No. 333-______ (the “Base Prospectus”), including all Incorporated Documents and
any prospectus or prospectus supplement relating to the Bonds deemed to be
a
part of such registration statement that has not been superseded or modified.
For purposes of the definition of “Pricing Prospectus” with respect to a
particular offering of Bonds, information contained in a prospectus or
prospectus supplement (other than a prospectus or prospectus supplement that
relates only to securities issued by FPL Group, FPL Group Capital, FPL Group
Trust or FPL Group Capital Trust or to securities issued by FPL other than
the
Bonds) that is deemed retroactively to be a part of the Registration Statement
pursuant to Rule 430B shall be considered to be included in the Pricing
Prospectus as of the time that form of prospectus or prospectus supplement
is
filed with the Commission pursuant to Rule 424 of the general rules and
regulations of the Securities Act (“Rule 424”). References herein to the
term “Prospectus” means the Pricing Prospectus that discloses the public
offering price and other final terms of the Bonds and otherwise satisfies
Section 10(a) of the Securities Act. The prospectus supplement relating to
the
Bonds proposed to be filed pursuant to Rule 424 shall be substantially in
the
form delivered to the Representatives prior to the execution of this agreement.
Each of the Underwriters acknowledges that on or subsequent to the Closing
Date,
FPL may file a post-effective amendment to the Registration Statement pursuant
to Rule 462(d) under the Securities Act or a Current Report on Form 8-K in
order
to file one or more unqualified opinions of counsel.
(b) The
Registration Statement constitutes an “automatic shelf registration statement”
(as defined in Rule 405 under the Securities Act) filed within three years
of
the date hereof; no notice of objection of the Commission with respect to
the
use of the Registration Statement pursuant to Rule 401(g)(2) under the
Securities Act has been received by FPL; and with respect to the Bonds FPL
is a
“well-known seasoned issuer” within the meaning of subparagraph (1)(ii) of the
definition of “well-known seasoned issuer in Rule 405 under the Securities
Act.
(c) The
Registration Statement at the Effective Date fully complied, and the Prospectus,
both at the date and time it is filed with the Commission pursuant to
Rule 424 (such date and time, the “424 Date”) and at the Closing Date,
and the Registration Statement and the Mortgage, at the Closing Date, will
fully
comply, in all material respects with the applicable provisions of the
Securities Act and the Trust Indenture Act of 1939, as amended (the “1939 Act”),
respectively, and, in each case, the applicable instructions, rules and
regulations of the Commission thereunder; the Registration Statement, at
the
Effective Date, did not, and at the Closing Date the Registration Statement
will
not, contain an 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; the Prospectus, both at the 424 Date and at the Closing
Date, will not include an untrue statement of a material fact or omit to
state a
material fact necessary in order to make the statements contained therein,
in
the light of the circumstances under which they were made, not misleading;
and
the Incorporated Documents, when filed with the Commission, fully complied
or
will fully comply in all material respects with the applicable provisions
of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the
applicable instructions, rules and regulations of the Commission thereunder;
provided, that the foregoing representations and warranties in
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this
subsection (b) shall not apply to statements or omissions made in reliance
upon and in conformity with information furnished in writing to FPL by or
on
behalf of any Underwriter through the Representatives expressly for use in
connection with the preparation of the Registration Statement or the Prospectus,
or to any statements in or omissions from the Statements of Eligibility on
Form
T-1, or amendments thereto, filed as exhibits to the Registration Statement
(collectively, the “Statements of Eligibility”) or to any statements or
omissions made in the Registration Statement or the Prospectus relating to
The
Depository Trust Company (“DTC”) Book-Entry-Only System that are based solely on
information contained in published reports of DTC.
(d) As
of the
Applicable Time (as defined below), the Pricing Disclosure Package (as defined
below) did not contain an untrue statement of a material fact or omit to
state a
material fact necessary in order to make the statements contained therein,
in
the light of the circumstances under which they were made, not misleading;
provided, that the foregoing representations and warranties in this
subsection (d) shall not apply to statements or omissions made in reliance
upon and in conformity with information furnished in writing to FPL by or
on
behalf of any Underwriter through the Representatives expressly for use in
connection with the preparation of the Registration Statement, the Pricing
Prospectus, any preliminary prospectus supplement or any Issuer Free Writing
Prospectus (as defined below), or to any statements in or omissions from
the
Statements of Eligibility or to any statements or omissions made in the
Registration Statement, the Pricing Prospectus, any preliminary prospectus
supplement or any Issuer Free Writing Prospectus relating to the DTC
Book-Entry-Only System that are based solely on information contained in
published reports of DTC. References to the term “Pricing Disclosure Package”
shall mean the documents listed in Schedule III, taken together as a whole.
References to the term “Issuer Free Writing Prospectus” shall mean an issuer
free writing prospectus, as defined in Rule 433 under the Securities Act.
References to the term “Free Writing Prospectus” shall mean a free writing
prospectus, as defined in Rule 405 under the Securities Act. References to
the
term “Applicable Time” means ___ [A.M./P.M.] on the date hereof. If there
occurs an event or development as a result of which the Pricing Disclosure
Package would include an untrue statement of a material fact or would omit
to
state a material fact necessary in order to make the statements therein,
in the
light of the circumstances then prevailing, not misleading, FPL promptly
will
notify the Representatives so that any use of the Pricing Disclosure Package
may
cease until it is amended or supplemented.
(e) As
of the
Applicable Time, no Issuer Free Writing Prospectus includes any information
that
conflicts with the information contained in the Registration Statement, the
Prospectus or the Pricing Prospectus, including any document incorporated
by
reference therein that has not been superseded or modified.
(f) The
financial statements included as part of or incorporated by reference in
the
Pricing Disclosure Package, the Prospectus and the Registration Statement
present fairly the consolidated financial condition and results of operations
of
FPL and its subsidiaries taken as a whole at the respective dates or for
the
respective periods to which they apply; such financial statements have been
prepared in each case in accordance with generally accepted accounting
principles consistently applied throughout the periods
4
involved
except as otherwise indicated in the Pricing Disclosure Package and the
Registration Statement; and Deloitte & Touche LLP, who has audited the
audited financial statements of FPL, is an independent registered public
accounting firm as required by the Securities Act and the Exchange Act and
the
rules and regulations of the Commission thereunder.
(g) Except
as
reflected in or contemplated by the Pricing Disclosure Package, since the
respective most recent times as of which information is given in the Pricing
Disclosure Package, there has not been any material adverse change in the
business, properties or financial condition of FPL and its subsidiaries taken
as
a whole, whether or not in the ordinary course of business, nor has any
transaction been entered into by FPL or any of its subsidiaries that is material
to FPL and its subsidiaries taken as a whole, other than changes and
transactions contemplated by the Pricing Disclosure Package, and transactions
in
the ordinary course of business. FPL and its subsidiaries have no contingent
obligation material to FPL and its subsidiaries taken as a whole, which is
not
disclosed in or contemplated by the Pricing Disclosure Package.
(h) The
execution and delivery of this agreement and the consummation of the
transactions herein contemplated by FPL and the fulfillment of the terms
hereof
on the part of FPL to be fulfilled have been duly authorized by all necessary
corporate action of FPL in accordance with the provisions of its Restated
Articles of Incorporation, as amended (the “Charter”), by-laws and applicable
law, and the Bonds when issued and delivered as provided herein will constitute
valid and binding obligations of FPL enforceable against FPL in accordance
with
their terms, except as limited or affected by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws affecting mortgagees’ and
other creditors’ rights and remedies generally and general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at
law).
(i) The
execution and delivery of this agreement and the consummation of the
transactions herein contemplated by FPL and the fulfillment of the terms
hereof
on the part of FPL to be fulfilled, and the compliance by FPL with all the
terms
and provisions of the Mortgage will not result in a breach of any of the
terms
or provisions of, or constitute a default under, FPL’s Charter or by-laws, or
any indenture, mortgage, deed of trust or other agreement or instrument to
which
FPL or any of its subsidiaries is now a party, or violate any law or any
order,
rule, decree or regulation applicable to FPL or any of its subsidiaries of
any
federal or state court, regulatory board or body or administrative agency
having
jurisdiction over FPL or its subsidiaries or any of their respective property,
except where such breach, default or violation would not have a material
adverse
effect on the business, properties or financial condition of FPL and its
subsidiaries taken as a whole.
(j) FPL
has
no direct or indirect significant subsidiaries (as defined in Regulation
S-X (17
CFR Part 210)).
(k)
FPL
has
been duly organized, is validly existing and is in good standing under the
laws
of its jurisdiction of organization, and is duly qualified to do business
and is
in good standing as a foreign corporation in each jurisdiction in which its
ownership of
5
properties
or the conduct of its businesses requires such qualification, except where
the
failure so to qualify would not have a material adverse effect on the business,
properties or financial condition of FPL, and has the power and authority
as a
corporation necessary to own or hold its properties and to conduct the
businesses in which it is engaged.
(l) All
the
property to be subjected to the lien of the Mortgage will be adequately
described therein.
(m)
FPL
is
not, and after giving effect to the offering and sale of the Bonds and the
application of the proceeds thereof as described in the Pricing Disclosure
Package and the Prospectus will not be, an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.
4. Purchase
and Sale. On the basis of the representations and warranties herein
contained, and subject to the terms and conditions in this agreement, FPL
agrees
to sell to the respective Underwriters named in Schedule II hereto, severally
and not jointly, and the respective Underwriters agree, severally and not
jointly, to purchase from FPL, the respective principal amounts of the Bonds
set
forth opposite their respective names in Schedule II hereto at the purchase
price for those Bonds set forth in Schedule I hereto as the Purchase
Price.
The
Underwriters agree to make a bona
fide
public
offering of the Bonds as set forth in the Pricing Disclosure Package, such
public offering to be made as soon after the execution of this agreement
as
practicable, subject, however, to the terms and conditions of this agreement.
The Underwriters have advised FPL that the Bonds will be offered to the public
at the amount per Bond as set forth in Schedule I hereto as the Price to
Public
and to certain dealers selected by the Representatives at a price which
represents a concession. Such dealer’s concession may not be in excess of _____%
of the principal amount per Bond under the Price to Public.
Each
Underwriter agrees that (i) no information that is presented by it to investors
has been or will be inconsistent with the information contained in the Pricing
Disclosure Package as it may then be amended or supplemented and (ii) it
will
make no offer that would constitute a Free Writing Prospectus that is required
to be filed by FPL pursuant to Rule 433 under the Securities Act other than
an
Issuer Free Writing Prospectus in accordance with Section 6(h).
5. Time,
Date and Place of Closing, Default of Underwriter. Delivery of the
Bonds and payment therefor by wire transfer in federal funds shall be made
at
____ A.M., New York City time, on the closing date set forth on Schedule
I, at
the offices of Xxxxxx Xxxx & Priest LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, or at such other time, date or place as may be agreed upon in
writing by FPL and the Representatives. The time and date of such delivery
and
payment are herein called the “Closing Date.”
The
Bonds
shall be delivered to the Representatives for the respective accounts of
the
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price therefor. Delivery of the Bonds shall
be
made through the facilities of DTC unless FPL and the Representatives shall
otherwise agree. For the purpose of expediting the checking of the Bonds
by the
Representatives on behalf of the Underwriters, FPL agrees to make such Bonds
available to the Representatives for such purpose at the offices of Xxxxxx
Xxxx
&
6
Priest
LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, not later than 2:00 P.M.,
New
York City time, on the business day preceding the Closing Date, or at such
other
time, date or place as may be agreed upon by FPL and the
Representatives.
If
any
Underwriter shall fail to purchase and pay for the principal amount of the
Bonds
[of any series] which such Underwriter has agreed to purchase and pay for
hereunder (otherwise than by reason of any failure on the part of FPL to
comply
with any of the provisions contained herein), the non-defaulting Underwriters
shall be obligated to purchase and pay for (in addition to the respective
principal amount of the Bonds set forth opposite their respective names in
Schedule II hereto) the principal amount of the Bonds [of each series] which
such defaulting Underwriter or Underwriters failed to purchase and pay for,
up
to a principal amount thereof equal to, in the case of each such remaining
Underwriter, ten percent (10%) of the aggregate principal amount of the Bonds
[of each series] as to which there is a default and which are set forth opposite
the name of such remaining Underwriter in said Schedule II, and such remaining
Underwriters shall have the right, within 24 hours of receipt of such
notice, either to (i) purchase and pay for (in such proportion as may be
agreed
upon among them) the remaining principal amount of the Bonds [of each series]
which the defaulting Underwriter or Underwriters agreed but failed to purchase,
or (ii) substitute another Underwriter or Underwriters, satisfactory to FPL,
to
purchase and pay for the remaining principal amount of the Bonds [of each
series] which the defaulting Underwriter or Underwriters agreed but failed
to
purchase. If any of the Bonds would still remain unpurchased, then FPL shall
be
entitled to a further period of 24 hours within which to procure another
party or other parties, members of the National Association of Securities
Dealers, Inc. (or, if not members of such Association, who are not eligible
for
membership in said Association and who agree (i) to make no sales within
the United States, its territories or its possessions or to persons who are
citizens thereof or residents therein and (ii) in making sales to comply
with said Association’s Conduct Rules) and satisfactory to the Representatives
to purchase such Bonds on the terms herein set forth. In the event that,
within
the respective prescribed periods, (i) the non-defaulting Underwriters notify
FPL that they have arranged for the purchase of such Bonds or (ii) FPL notifies
the non-defaulting Underwriters that it has arranged for the purchase of
such
Bonds, the non-defaulting Underwriters or FPL shall have the right to postpone
the Closing Date for a period of not more than three full business days beyond
the expiration of the respective prescribed periods in order to effect whatever
changes may thus be made necessary in the Registration Statement, the Prospectus
or in any other documents or arrangements. In the event that neither the
non-defaulting Underwriters nor FPL has arranged for the purchase of such
Bonds
by another party or parties as above provided, then this agreement shall
terminate without any liability on the part of FPL or any Underwriter (other
than an Underwriter which shall have failed or refused, otherwise than for
some
reason sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligations hereunder, to purchase and
pay
for the Bonds which such Underwriter has agreed to purchase as provided in
Section 4 hereof), except as otherwise provided in Section 8 and
subsections (d) and (f) of Section 6 hereof.
6. Covenants
of FPL. FPL agrees with the several Underwriters that:
(a) FPL
will
timely file the Prospectus with the Commission pursuant to Rule 424 under
the
Securities Act. FPL has complied and will comply with Rule 433 under the
Securities Act in connection with the offering and sale of the Bonds,
including
7
applicable
provisions in respect of timely filing with the Commission, legending and
record-keeping.
(b) FPL
will
prepare a final term sheet, containing a description of the pricing terms
of the
Bonds, substantially in the form of Schedule I hereto and approved by the
Representatives and will timely file such term sheet with the Commission
pursuant to Rule 433 under the Securities Act.
(c) FPL
will
deliver to the Representatives and to Counsel for the Underwriters one signed
copy of the Registration Statement or, if a signed copy is not available,
one
conformed copy of the Registration Statement certified by an officer of FPL
to
be in the form as originally filed, including all Incorporated Documents
and
exhibits, except those incorporated by reference, which relate to the Bonds,
including a signed or conformed copy of each consent and certificate included
therein or filed as an exhibit thereto. As soon as practicable after the
date of
this agreement, FPL will deliver to the Underwriters through the Representatives
as many copies of the Prospectus as the Representatives may reasonably request
for the purposes contemplated by the Securities Act.
(d) FPL
has
paid or cause to be paid or will pay or cause to be paid all expenses in
connection with the (i) preparation and filing of the Registration
Statement, any preliminary prospectus, the Prospectus and any Issuer Free
Writing Prospectus, (ii) issuance and delivery of the Bonds as provided in
Section 5 hereof, (iii) preparation, execution, filing and recording
of the Supplemental Indenture and (iv) printing and delivery to the
Representatives for the account of the Underwriters, in reasonable quantities,
of copies of the Registration Statement, any preliminary prospectus, the
Prospectus, any Issuer Free Writing Prospectus and the Supplemental Indenture.
FPL will pay or cause to be paid all taxes, if any (but not including any
transfer taxes), on the issuance of the Bonds and recordation of the
Supplemental Indenture. FPL shall not, however, be required to pay any amount
for any expenses of the Representatives or any of the Underwriters, except
that
if this agreement shall be terminated in accordance with the provisions of
Sections 7, 8 or 10 hereof, FPL will pay or cause to be paid the fees and
disbursements of Counsel for the Underwriters, whose fees and disbursements
the
Underwriters agree to pay in any other event, and FPL shall reimburse or
cause
to be reimbursed the Underwriters for out-of-pocket expenses reasonably incurred
by them in connection with the transactions contemplated by this agreement,
not
in excess, however, of an aggregate of $5,000 for such out-of-pocket expenses.
FPL shall not in any event be liable to any of the several Underwriters for
damages on account of loss of anticipated profits.
(e) During
a
period of nine months after the date of this agreement, if any event relating
to
or affecting FPL shall occur which, in the opinion of FPL, should be set
forth
in a supplement to or an amendment of the Prospectus (including an Issuer
Free
Writing Prospectus) in order to make the Prospectus not misleading in the
light
of the circumstances when it is delivered to a purchaser, FPL will forthwith
at
its expense prepare, file with the Commission, if required, and furnish to
the
Representatives a reasonable number of copies of such supplement or supplements
or amendment or
8
amendments
to the Prospectus (including an Issuer Free Writing Prospectus) which will
supplement or amend the Prospectus so that as supplemented or amended it
will
not include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements contained therein, in the
light
of the circumstances when the Prospectus is delivered to a purchaser, not
misleading; provided that should such event relate solely to activities of
any
of the Underwriters, then the Underwriters shall assume the expense of preparing
and furnishing copies of any such amendment or supplement. In case any
Underwriter is required to deliver a Prospectus after the expiration of nine
months after the date of this agreement, FPL upon the request of the
Representatives will furnish to the Representatives, at the expense of such
Underwriter, a reasonable quantity of a supplemented or amended Prospectus
or
supplements or amendments to the Prospectus complying with Section 10 of
the Securities Act.
(f) FPL
will
furnish such proper information as may be lawfully required and otherwise
cooperate in qualifying the Bonds for offer and sale under the blue sky laws
of
such United States jurisdictions as the Representatives may designate and
will
pay or cause to be paid filing fees and expenses (including fees of counsel
not
to exceed $5,000 and reasonable disbursements of counsel), provided that
FPL
shall not be required to qualify as a foreign corporation or dealer in
securities, or to file any consents to service of process under the laws
of any
jurisdiction, or to meet other requirements deemed by FPL to be unduly
burdensome.
(g) FPL
will
timely file such reports pursuant to the Exchange Act as are necessary in
order
to make generally available to its security holders (including holders of
the
Bonds) as soon as practicable an earnings statement (which need not be audited,
unless required so to be under Section 11(a) of the Securities Act) for the
purposes of, and to provide the benefits contemplated by, the last paragraph
of
Section 11(a) of the Securities Act.
(h) Prior
to
the termination of the offering of the Bonds, FPL will not file any amendment
to
the Registration Statement or any amendment or supplement to the Prospectus
or
any amendment or supplement to the Pricing Disclosure Package without prior
notice to the Representatives and to Hunton & Xxxxxxxx LLP, who are acting
as counsel for the several Underwriters (“Counsel for the Underwriters”), or any
such amendment or supplement to which the Representatives shall reasonably
object in writing, or which shall be unsatisfactory to Counsel for the
Underwriters. FPL has not made any offer relating to the Bonds that would
constitute an Issuer Free Writing Prospectus or that would otherwise constitute
a Free Writing Prospectus required to be filed by FPL with the Commission
or
retained by FPL under Rule 433 under the Securities Act, other than a pricing
term sheet substantially in the form as set forth on Schedule I, and will
not
make any such offer without prior notice to the Representatives and to Counsel
for the Underwriters, or any such offer to which the Representatives shall
reasonably object in writing, or which shall be unsatisfactory to Counsel
for
the Underwriters.
(i) FPL
will
advise the Representatives promptly of the filing of the Prospectus pursuant
to
Rule 424, of the filing of any material pursuant to Rule 433 and of
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any
amendment or supplement to the Pricing Disclosure Package or the Registration
Statement or, prior to the termination of the offering of the Bonds hereunder,
of official notice of the institution of proceedings for, or the entry of,
a
stop order suspending the effectiveness of the Registration Statement, of
receipt from the Commission of any notice of objection to the use of the
Registration Statement or any post-effective amendment thereto pursuant to
Rule
401(g)(2) under the Securities Act has been received by FPL, and, if such
a stop
order should be entered, or notice of objection should be received, use every
commercially reasonable effort to obtain the prompt removal
thereof.
(j) On
or
before the Closing Date, FPL will, if applicable, cause (i) at least one
counterpart of the Supplemental Indenture to be duly recorded in the States
of
Florida or Georgia and (ii) all intangible and documentary stamp taxes due
in
connection with the issuance of the Bonds and the recording of the Supplemental
Indenture to be paid. Within 30 days following the Closing Date, FPL will,
if
applicable, cause the Supplemental Indenture to be duly recorded in all other
counties in which property of FPL which is subject to the lien of the Mortgage
is located.
7. Conditions
of Underwriters’ Obligations to Purchase and Pay for the Bonds. The
several obligations of the Underwriters to purchase and pay for the Bonds
shall
be subject to the performance by FPL of its obligations to be performed
hereunder on or prior to the Closing Date and to the following
conditions:
(a) The
representations and warranties made by FPL herein and qualified by materiality
shall be true and correct in all respects and the representations and warranties
made by FPL here that are not qualified by materiality shall be true and
correct
in all material respects as of the Closing Date, in each case as if made
on and
as of such date and the Representatives shall have received, prior to payment
for the Bonds, a certificate from FPL dated the Closing Date and signed by
an
officer of FPL to that effect.
(b) No
stop
order suspending the effectiveness of the Registration Statement shall be
in
effect on the Closing Date; no order of the Commission directed to the adequacy
of any Incorporated Document shall be in effect on the Closing Date; no
proceedings for either such purpose shall be pending before, or threatened
by,
the Commission on such date, and no notice of objection by the Commission
to the
use of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act shall have been received
by
FPL; and the Representatives shall have received, prior to payment for the
Bonds, a certificate from FPL dated the Closing Date and signed by an officer
of
FPL to the effect that, to the best of his or her knowledge, no such order
is in
effect and no proceedings for either such purpose are pending before, or
to the
knowledge of FPL threatened by, the Commission.
(c) On
the
Closing Date, there shall be in full force and effect an authorization of
the
Florida Public Service Commission with respect to the issuance and sale of
the
Bonds on the terms herein stated or contemplated, and containing no provision
unacceptable to the Representatives by reason of the fact that it is materially
adverse to FPL, it being understood that no authorization provided to Counsel
for the Underwriters and in effect at the date of this agreement contains
any
such unacceptable provision.
10
(d) On
the
Closing Date, the Representatives shall have received from Squire, Xxxxxxx
&
Xxxxxxx L.L.P., counsel to FPL, Xxxxxx Xxxx & Priest LLP, counsel to FPL,
and Hunton & Xxxxxxxx LLP, Counsel for the Underwriters, opinions (with a
copy for each of the Underwriters) in substantially the form and substance
prescribed in Schedules IV, V and VI hereto (i) with such changes therein
as may be agreed upon by FPL and the Representatives, with the approval of
Counsel for the Underwriters, and (ii) if the Prospectus relating to the
Bonds shall be supplemented or amended after the Prospectus shall have been
filed with the Commission pursuant to Rule 424, with any changes therein
necessary to reflect such supplementation or amendment.
(e) On
the
date of this agreement and on the Closing Date, the Representatives shall
have
received from Deloitte & Touche LLP a letter or letters (which may refer to
letters previously delivered to the Representatives) (with copies thereof
for
each of the Underwriters) dated the respective dates of delivery thereof
to the
effect that (i) they are an independent registered public accounting firm
with
respect to FPL within the meaning of the Securities Act and the Exchange
Act and
the applicable published rules and regulations thereunder; (ii) in their
opinion, the consolidated financial statements audited by them and incorporated
by reference in the Pricing Prospectus or the Pricing Prospectus and the
Prospectus, as applicable, comply as to form in all material respects with
the
applicable accounting requirements of the Securities Act and the Exchange
Act
and the published rules and regulations thereunder; (iii) on the basis of
performing a review of interim financial information as described in Statement
on Auditing Standards No. 100, Interim Financial Information, on the unaudited
condensed consolidated financial statements of FPL, if any, incorporated
by
reference in the Pricing Prospectus or the Pricing Prospectus and the
Prospectus, as applicable, a reading of the latest available interim unaudited
condensed consolidated financial statements of FPL since the close of FPL’s most
recent audited fiscal year, reading the minutes and consents of the Board
of
Directors, the Finance Committee of the Board of Directors, the Stock Issuance
Committee of the Board of Directors, and the sole common shareholder of FPL
since the end of the most recent audited fiscal year, and inquiries of officials
of FPL who have responsibility for financial and accounting matters (it being
understood that the foregoing procedures do not constitute an audit made
in
accordance with standards of the Public Company Accounting Oversight Board
(United States) and they would not necessarily reveal matters of significance
with respect to the comments made in such letter, and accordingly that Deloitte
& Touche LLP makes no representation as to the sufficiency of such
procedures for the several Underwriters’ purposes), nothing has come to their
attention which caused them to believe that (a) the unaudited condensed
consolidated financial statements of FPL, if any, incorporated by reference
in
the Pricing Prospectus or the Pricing Prospectus and Prospectus, as applicable,
(1) do not comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the Exchange Act and the
published rules and regulations thereunder and (2) except as disclosed in
the
Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable,
are not in conformity with generally accepted accounting principles applied
on a
basis substantially consistent with that of the audited consolidated financial
statements of FPL incorporated by reference in the Pricing Prospectus or
the
Pricing Prospectus and the Prospectus, as applicable; (b) at the date of
the
latest available interim balance sheet read by them and at a specified date
not
more than five days prior
11
to
the
date of such letter there was any change in the common stock or additional
paid-in capital, increase in the preferred stock or long-term debt including
current maturities and excluding fair value swaps and amortization of the
unamortized premiums and discount on long-term debt of FPL and its subsidiaries,
or decrease in FPL’s common shareholders’ equity, in each case as compared with
amounts shown in the most recent condensed consolidated balance sheet
incorporated by reference in the Pricing Prospectus or the Pricing Prospectus
and the Prospectus, as applicable, except in all instances for changes,
increases or decreases which the Pricing Prospectus or the Pricing Prospectus
and the Prospectus, as applicable, discloses have occurred or may occur,
or as
occasioned by the declaration, provision for, or payment of dividends, or
which
are described in such letter; or (c) for the period from the date of the
most
recent condensed consolidated balance sheet incorporated by reference in
the
Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable,
to the latest available interim balance sheet read by them and for the period
from the date of the latest available interim balance sheet read by them
to a
specified date not more than five days prior to the date of such letter,
there
were any decreases, as compared with the corresponding period in the preceding
year, in total consolidated operating revenues or in net income or net income
available to FPL Group, Inc., except in all instances for decreases which
the
Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable,
discloses have occurred or may occur, or which are described in such letter;
and
(iv) they have carried out certain procedures and made certain findings,
as
specified in such letter, with respect to certain amounts included in the
Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable,
and Exhibit 12(b) to the Registration Statement and such other items as the
Representatives may reasonably request.
(f) Since
the
respective most recent times as of which information is given in the Pricing
Disclosure Package, and up to the Closing Date, (i) there shall have been
no material adverse change in the business, properties or financial condition
of
FPL and its subsidiaries taken as a whole, except as disclosed in or
contemplated by the Pricing Disclosure Package, and (ii) there shall have
been no transaction entered into by FPL or any of its subsidiaries that is
material to FPL and its subsidiaries taken as a whole, other than transactions
disclosed in or contemplated by the Pricing Disclosure Package, and transactions
in the ordinary course of business; and at the Closing Date, the Representatives
shall have received a certificate to such effect from FPL signed by an officer
of FPL.
(g) All
legal
proceedings to be taken in connection with the issuance and sale of the Bonds
shall have been satisfactory in form and substance to Counsel for the
Underwriters.
In
case
any of the conditions specified above in this Section 7 shall not have been
fulfilled, this agreement may be terminated by the Representatives upon mailing
or delivering written notice thereof to FPL. Any such termination shall be
without liability of any party to any other party except as otherwise provided
in subsections (d) and (f) of Section 6 hereof.
8. Condition
of FPL’s Obligations. The obligation of FPL to deliver the Bonds shall
be subject to the following conditions:
12
(a) No
stop
order suspending the effectiveness of the Registration Statement shall be
in
effect on the Closing Date; no order of the Commission directed to the adequacy
of any Incorporated Document shall be in effect on the Closing Date, and
no
proceedings for either such purpose shall be pending before, or threatened
by,
the Commission on such date.
(b) On
the
Closing Date there shall be in full force and effect an authorization of
the
Florida Public Service Commission with respect to the issuance and sale of
the
Bonds on the terms herein stated or contemplated, and containing no provision
unacceptable to FPL by reason of the fact that it is materially adverse to
FPL,
it being understood that no authorization in effect at the date of this
agreement contains any such unacceptable provision.
In
case
the conditions specified above in this Section 8 shall not have been
fulfilled, this agreement may be terminated by FPL upon mailing or delivering
written notice thereof to the Representatives. Any such termination shall
be
without liability of any party to any other party except as otherwise provided
in subsections (d) and (f) of Section 6 hereof.
9. Indemnification.
(a) FPL
agrees to indemnify and hold harmless each Underwriter, each officer and
director of each Underwriter and each person who controls any Underwriter
within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act against any and all losses, claims, damages or liabilities,
joint
or several, to which they or any of them may become subject under the Securities
Act or any other statute or common law and to reimburse each such Underwriter,
officer, director and controlling person for any legal or other expenses
(including, to the extent hereinafter provided, reasonable counsel fees)
when
and as incurred by them in connection with investigating any such losses,
claims, damages or liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities, expenses or actions
arise
out of or are based upon an untrue statement or alleged untrue statement
of a
material fact contained in any preliminary prospectus, including all
Incorporated Documents, or in the Registration Statement, the Pricing
Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or the
omission or alleged omission to state therein a material fact required to
be
stated therein or necessary to make the statements therein not misleading;
provided, however, that the indemnity agreement contained in this
subsection (a) of Section 9 shall not apply to any such losses,
claims, damages, liabilities, expenses or actions arising out of, or based
upon,
any such untrue statement or alleged untrue statement, or any such omission
or
alleged omission, if such statement or omission was made in reliance upon
and in
conformity with information furnished in writing, to FPL by or on behalf
of any
Underwriter, through the Representatives, expressly for use in connection
with
the preparation of any preliminary prospectus, the Registration Statement,
the
Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus
or any
amendment or supplement to any thereof, or arising out of, or based upon,
statements in or omissions from the Statements of Eligibility; and provided,
further, that the indemnity agreement contained in this subsection (a) of
Section 9 in respect of any preliminary prospectus, the Pricing Prospectus,
any Issuer Free Writing Prospectus or the Prospectus shall not
inure
13
to
the
benefit of any Underwriter (or of any officer or director or person controlling
such Underwriter) on account of any such losses, claims, damages, liabilities,
expenses or actions arising from the sale of the Bonds [of any series] to
any
person in respect of any preliminary prospectus, the Pricing Prospectus,
any
Issuer Free Writing Prospectus or the Prospectus, each as may be then
supplemented or amended, furnished by such Underwriter to a person to whom
any
of the Bonds were sold (excluding in all cases, however, any document then
incorporated by reference therein), insofar as such indemnity relates to
any
untrue or misleading statement or omission made in such preliminary prospectus,
Pricing Prospectus, Prospectus or Issuer Free Writing Prospectus, if a copy
of a
supplement or amendment to such preliminary prospectus, Pricing Prospectus,
Prospectus, or Issuer Free Writing Prospectus (excluding in all cases, however,
any document then incorporated by reference therein) (i) is furnished on
a
timely basis by FPL to the Underwriter, (ii) is required to have been conveyed
to such person by or on behalf of such Underwriter, at or prior to the entry
into the contract of sale of the Bonds with such person, but was not so conveyed
(which conveyance may be oral (if permitted by law) or written) by or on
behalf
of such Underwriter and (iii) would have cured the defect giving rise to
such
loss, claim, damage or liability. The indemnity agreement of FPL contained
in
this subsection (a) of Section 9 and the representations and
warranties of FPL contained in Section 3 hereof shall remain operative and
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter, or any such officer, director or controlling person,
and
shall survive the delivery of the Bonds [of each series]. The Underwriters
agree
promptly to notify FPL, and each other Underwriter, of the commencement of
any
litigation or proceedings against them or any of them, or any such officer,
director or controlling person in connection with the issuance and sale of
the
Bonds [of any series].
(b) Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
FPL, its officers and directors, and each person who controls FPL within
the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Securities
Act or any other statute or common law and to reimburse each of them for
any
legal or other expenses (including, to the extent hereinafter provided,
reasonable counsel fees) when and as incurred by them in connection with
investigating any such losses, claims, damages or liabilities or in connection
with defending any actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, the Registration Statement, the Pricing Prospectus,
the
Prospectus or any Issuer Free Writing Prospectus, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading if such statement
or
omission was made in reliance upon and in conformity with information furnished
in writing to FPL, by or on behalf of such Underwriter, through the
Representatives, expressly for use in connection with the preparation of
any
preliminary prospectus, the Registration Statement, the Pricing Prospectus,
the
Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement
to any thereof. The Underwriters hereby furnish to FPL in writing expressly
for
use in the preliminary prospectus, the Registration Statement, the Pricing
Prospectus, the Prospectus and any
14
Issuer
Free Writing Prospectus: [insert information provided by the Underwriters].
FPL
acknowledges that the statements set forth in the preceding sentence constitutes
the only information furnished in writing by or on behalf of the several
Underwriters expressly for inclusion in any preliminary prospectus, the
Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer
Free Writing Prospectus. The indemnity agreement of the respective Underwriters
contained in this subsection (b) of Section 9 shall remain operative
and in full force and effect, regardless of any investigation made by or
on
behalf of FPL or any of its officers or directors or any such other Underwriter
or any such controlling person, and shall survive the delivery of the Bonds
[of
each series]. FPL agrees promptly to notify the Representatives of the
commencement of any litigation or proceedings against FPL (or any controlling
person thereof) or any of its officers or directors in connection with the
issuance and sale of the Bonds [of any series].
(c) FPL
and
each of the several Underwriters each agree that, upon the receipt of notice
of
the commencement of any action against it, its officers and directors, or
any
person controlling it as aforesaid, in respect of which indemnity or
contribution may be sought under the provisions of this Section 9, it will
promptly give written notice of the commencement thereof to the party or
parties
against whom indemnity or contribution shall be sought thereunder, but the
omission so to notify such indemnifying party or parties of any such action
shall not relieve such indemnifying party or parties from any liability which
it
or they may have to the indemnified party otherwise than on account of this
indemnity agreement. In case such notice of any such action shall be so given,
such indemnifying party or parties shall be entitled to participate at its
own
expense in the defense or, if it so elects, to assume (in conjunction with
any
other indemnifying parties) the defense of such action, in which event such
defense shall be conducted by counsel chosen by such indemnifying party or
parties and reasonably satisfactory to the indemnified party or parties who
shall be defendant or defendants in such action, and such defendant or
defendants shall bear the fees and expenses of any additional counsel retained
by them; but if the indemnifying party or parties shall elect not to assume
the
defense of such action, such indemnifying party or parties will reimburse
such
indemnified party or parties for the reasonable fees and expenses of any
counsel
retained by them; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and counsel
for
the indemnifying party shall have reasonably concluded that there may be
a
conflict of interest involved in the representation by such counsel of both
the
indemnifying party and the indemnified party, the indemnified party or parties
shall have the right to select separate counsel, satisfactory to the
indemnifying party or parties, to participate in the defense of such action
on
behalf of such indemnified party or parties at the expense of the indemnifying
party or parties (it being understood, however, that the indemnifying party
or
parties shall not be liable for the expenses of more than one separate counsel
representing the indemnified parties who are parties to such action). FPL
and
each of the several Underwriters each agree that without the prior written
consent of the other parties to such action who are parties to this agreement,
which consent shall not be unreasonably withheld, it will not settle, compromise
or consent to the entry of any judgment in any claim or proceeding in respect
of
which such party intends to seek indemnity or contribution under the provisions
of this Section 9, unless such settlement, compromise or consent
(i) includes an unconditional release of such other parties from all
liability arising out of such claim
15
or
proceeding and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of such other
parties.
(d) If,
or to
the extent, the indemnification provided for in subsections (a) or (b) above
shall be unenforceable under applicable law by an indemnified party, each
indemnifying party agrees to contribute to such indemnified party with respect
to any and all losses, claims, damages, liabilities and expenses for which
each
such indemnification provided for in subsections (a) or (b) above shall be
unenforceable, in such proportion as shall be appropriate to reflect
(i) the relative fault of FPL on the one hand and the Underwriters on the
other in connection with the statements or omissions which have resulted
in such
losses, claims, damages, liabilities and expenses, (ii) the relative
benefits received by FPL on the one hand and the Underwriters on the other
hand
from the offering of the Bonds pursuant to this agreement, and (iii) any
other relevant equitable considerations; provided, however, that no indemnified
party guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution with
respect thereto from any indemnifying party not guilty of such fraudulent
misrepresentation. Relative fault 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 FPL or the Underwriters and each such party’s relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. FPL and each of the Underwriters agree
that
it would not be just and equitable if contribution pursuant to this
subsection (d) were to be determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute in excess of the amount equal
to
the excess of (i) the total price at which the Bonds underwritten by it
were offered to the public, over (ii) the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue
or
alleged untrue statement or omission or alleged omission. The obligations
of
each Underwriter to contribute pursuant to this subsection (d) are several
and not joint and shall be in the same proportion as such Underwriter’s
obligation to underwrite the Bonds [of the series with respect to which
contribution is sought] is to the total principal amount of the Bonds [of
such
series] set forth in Schedule II hereto.
10. Termination.
This agreement may be terminated by the Representatives by delivering written
notice thereof to FPL, at any time prior to the Closing Date, if after the
date
hereof and at or prior to the Closing Date:
(a) (i) there
shall have occurred any general suspension of trading in securities on The
New
York Stock Exchange, Inc. (the “NYSE”) or there shall have been established by
the NYSE or by the Commission or by any federal or state agency or by the
decision of any court any limitation on prices for such trading or any general
restrictions on the distribution of securities, or trading in any securities
of
FPL shall have been suspended or limited by any exchange located in the United
States or on the over-the-counter market located in the United States or
a
general banking moratorium declared by New York or federal authorities or
(ii) there shall have occurred any material
16
adverse
change in the financial markets in the United States, any outbreak of
hostilities, including, but not limited to, an escalation of hostilities
which
existed prior to the date of this agreement, any other national or international
calamity or crisis or any material adverse change in financial, political
or
economic conditions affecting the United States, the effect of any such event
specified in this clause (ii) being such as to make it, in the reasonable
judgment of the Representatives, impracticable or inadvisable to proceed
with
the offering of the Bonds [of any series] as contemplated in the Pricing
Disclosure Package or for the Underwriters to enforce contracts for the sale
of
the Bonds [of any series]; or
(b) (i) there
shall have been any downgrading or any notice of any intended or potential
downgrading in the ratings accorded to the Bonds [of any series] or any
securities of FPL which are of the same class as the Bonds by either [Xxxxx’x
Investors Service, Inc. (“Moody’s”)] or [Standard & Poor’s Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc. (“S&P”)], or (ii) either
[Moody’s] or [S&P] shall have publicly announced that either has under
surveillance or review, with possible negative implications, its ratings
of the
Bonds [of any series] or any securities of FPL which are of the same class
as
the Bonds, the effect of any such event specified in (i) or (ii) above being
such as to make it, in the reasonable judgment of the Representatives,
impracticable or inadvisable to proceed with the offering of the Bonds [of
any
series] as contemplated in the Pricing Disclosure Package or for the
Underwriters to enforce contracts for the sale of the Bonds [of any
series].
This
agreement may also be terminated at any time prior to the Closing Date if
in the
judgment of the Representatives the subject matter of any amendment or
supplement to the Registration Statement or the Prospectus or any Issuer
Free
Writing Prospectus prepared and furnished by FPL after the date hereof reflects
a material adverse change in the business, properties or financial condition
of
FPL and its subsidiaries taken as a whole which renders it either inadvisable
to
proceed with such offering, if any, or inadvisable to proceed with the delivery
of the Bonds [of any series] to be purchased hereunder. Any termination of
this
agreement pursuant to this Section 10 shall be without liability of any
party to any other party except as otherwise provided in subsections (d)
and (f)
of Section 6 hereof.
11. Miscellaneous.
(a) The
validity and interpretation of this agreement shall be governed by the laws
of
the State of New York without regard to conflicts of law principles thereunder.
This agreement shall inure to the benefit of, and be binding upon, FPL, the
several Underwriters and, with respect to the provisions of Section 9
hereof, each officer, director or controlling person referred to in said
Section 9, and their respective successors. Nothing in this agreement is
intended or shall be construed to give to any other person or entity any
legal
or equitable right, remedy or claim under or in respect of this agreement
or any
provision herein contained. The term “successors” as used in this agreement
shall not include any purchaser, as such purchaser, of any Bonds from any
of the
several Underwriters.
17
(b) FPL
acknowledges and agrees that the Underwriters are acting solely in the capacity
of arm’s length contractual counterparties to FPL with respect to the offering
of the Bonds as contemplated by this agreement and not as financial advisors
or
fiduciaries to FPL in connection herewith. Additionally, none of the
Underwriters is advising FPL as to any legal, tax, investment, accounting
or
regulatory matters in any jurisdiction in connection with the offering of
the
Bonds as contemplated by this agreement. Any review by the Underwriters of
FPL
in connection with the offering of the Bonds contemplated by this agreement
and
the transactions contemplated by this agreement will not be performed on
behalf
of FPL.
12. Notices.
All communications hereunder shall be in writing or by telegram and, if to
the
Underwriters, shall be mailed or delivered to the Representatives at the
address
set forth in Schedule II hereto, or if to FPL, shall be mailed or delivered
to
it at 000 Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000, Attention:
Treasurer.
13. Counterparts.
This agreement may be executed in any number of counterparts by the parties
hereto on separate counterparts, each of which, when so executed and delivered,
shall be deemed an original, but all such counterparts shall together constitute
one and the same instrument.
18
If
the
foregoing correctly sets forth our understanding, please indicate your
acceptance thereof in the space provided below for that purpose, whereupon
this
letter and your acceptance shall constitute a binding agreement between
us.
|
Very
truly yours,
Florida
Power & Light Company
|
||
|
By:
|
||
|
Name:
Title:
|
||
|
Accepted
and delivered as of the
date first above written:
|
||
|
By:
|
||
|
Name:
Title:
|
||
Acting
on
[its] [their] their own behalf and on behalf of the other several Underwriters
referred to in the foregoing agreement.
19
SCHEDULE
I
FLORIDA
POWER & LIGHT COMPANY
Pricing
Term Sheet
[Date]
Issuer:
Florida Power & Light Company
Underwriting
Agreement dated
Representatives:
Bonds:
|
Designation:
|
|
Principal
Amount:
|
|
Date
of Maturity:
|
|
Coupon
Rate:
|
|
Price
to Public:
|
|
Treasury
Benchmark:
|
|
Benchmark
Price:
|
|
Benchmark
Yield:
|
Spread
to
Benchmark
|
Treasury:
|
|
Reoffer
Yield:
|
|
Purchase
Price:
|
Proceeds
to FPL
|
(before
expenses):
|
|
Closing
Date:
|
|
CUSIP/
ISIN Number:
|
Expected
Credit Ratings*:
[Discount
Rate Spread Used in Calculating
Redemption
Make-Whole Premium:]
*A
security rating is not a recommendation to buy, sell or hold securities and
should be evaluated independently of any other rating. The rating is subject
to
revision or withdrawal at any time by the assigning rating
organization.
The
issuer has filed a registration statement (including a prospectus) with the
SEC
for the offering to which this communication relates. Before you invest,
you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the
issuer
and this offering. You may get these documents for free by visiting XXXXX
on the
SEC Web site at xxx.xxx.xxx.
Alternatively,
the issuer, any underwriter or any dealer participating in the offering will
arrange to send you the prospectus if you request it by calling ______________
toll-free ___________ or __________ toll-free ____________.
SCHEDULE
II
|
Representatives
|
Addresses
|
||
|
Underwriter
|
Principal
Amount
of
Bonds
|
||
SCHEDULE
III
PRICING
DISCLOSURE PACKAGE
(1) Prospectus,
dated _____________
(2) Preliminary
Prospectus Supplement dated _____________ (which shall be deemed to include
the
Incorporated Documents)
(3) Issuer
Free Writing Prospectuses
(a) Pricing
Term Sheet attached as Schedule I hereto
SCHEDULE
IV
[LETTERHEAD
OF SQUIRE, XXXXXXX & XXXXXXX L.L.P.]
SCHEDULE
V
[LETTERHEAD
OF XXXXXX XXXX & PRIEST LLP]
SCHEDULE
VI
[LETTERHEAD
OF HUNTON & XXXXXXXX LLP]
[Forms
of
legal opinions omitted]
