EXHIBIT 1(A)
FLORIDA POWER & LIGHT COMPANY
First Mortgage Bonds
Underwriting Agreement
[Date]
AGREEMENT between FLORIDA POWER & LIGHT COMPANY, a Florida
corporation ("FPL"), and the several Underwriters, or the
Underwriter, as the case may be, named in Schedule A to the Form
of Proposal (the "Proposal") to which this underwriting agreement
is attached (the underwriting agreement, together with the
Proposal, are referred to jointly herein as "this agreement" or
the "Underwriting Agreement") relating to the issuance and sale
by FPL of its First Mortgage Bonds of the series designation,
with the terms and in the principal amount as set forth in this
agreement (the "Bonds").
The term "Underwriters" as used herein shall be deemed to
mean the firm or corporation or the several firms or corporations
named in Schedule A to the Proposal and any underwriter
substituted as provided in Section 4 hereof and the term
"Underwriter" shall be deemed to mean one of such Underwriters.
The term "Representatives," as used herein, shall be deemed to
mean the representative or representatives, if any, named in the
questionnaire heretofore submitted to FPL by each of the
Underwriters, who by signing the Proposal represent that it or
they have been authorized by each Underwriter to sign such
Proposal and 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 firm is named in Schedule A to the
Proposal, any action under or in respect of this agreement may be
taken by such firms jointly as the Representatives or by one of
the firms acting on behalf of the Representatives and such action
will be binding upon all the Underwriters.
The Bonds will be a series of First Mortgage Bonds ("First
Mortgage Bonds") issued by FPL under its Mortgage and Deed of
Trust, dated as of January 1, 1944, to 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 ("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".
FPL has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3,
including a prospectus ("registration statement No. 33-61390"),
for the registration of $1,220,300,000 aggregate principal amount
of its First Mortgage Bonds under the Securities Act of 1933, as
amended (the "Securities Act"), which registration statement has
been declared effective by the Commission. FPL also filed with
the Commission a registration statement on Form S-3, including a
prospectus ("registration statement No. ") for the
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registration of $210,000,000 of its First Mortgage Bonds, which
registration statement has been declared effective by the
Commission. All but $290,000,000 principal amount of First
Mortgage Bonds registered with the Commission under the
Securities Act pursuant to registration statement No. 33-61390 ,
as amended, have been previously issued. References herein to
the term "Registration Statement" as of any given date shall mean
registration statement No. and registration statement
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No. 33-61390, each as amended or supplemented to such date,
including all documents incorporated by reference therein as of
such date pursuant to Item 12 of Form S-3 ("Incorporated
Documents"). References herein to the term "Prospectus" as of
any given date shall mean the prospectus forming a part of
registration statement No. , as supplemented by a
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prospectus supplement relating to the Bonds proposed to be filed
pursuant to Rule 424 of the general rules and regulations under
the Securities Act ("Rule 424"), and as further amended or
supplemented as of such date (other than amendments or
supplements relating to First Mortgage Bonds other than the Bonds
or, when referring to the Prospectus relating to a particular
offering of the Bonds, Bonds other than the Bonds being offered
on such date), including all Incorporated Documents. References
herein to the term "Effective Date" shall be deemed to refer to
the later of the time and date that registration statement No.
was declared effective and of the filing of FPL's
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most recent Annual Report on Form 10-K if such filing is made
prior to the Closing Date (as hereafter defined). 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 without prior notice to the
Representatives and to Winthrop, Stimson, Xxxxxx & Xxxxxxx, who
are acting as counsel on behalf of 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.
SECTION 1. Representations and Warranties of FPL. FPL
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represents and warrants to the several Underwriters that:
(a) The Registration Statement at the Effective Date
fully complied, and the Prospectus both on the date it is
filed with, or transmitted for filing to, the Commission,
pursuant to Rule 424 (such date, the "424 Date") and at the
Closing Date (as hereinafter defined), 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"), as applicable and, in
each case, the applicable instructions, rules and
regulations of the Commission with respect thereto; at the
Effective Date, the Registration Statement 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, 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 this subsection
(a) 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 for use
in connection with the preparation of the Registration
Statement or the Prospectus, or to any statements in or
omissions from any Statement of Eligibility and
Qualification on Form T-1, or amendments thereto, of the
Mortgage Trustee.
(b) The financial statements included as part of or
incorporated by reference in the Prospectus present fairly
the financial condition and operations of FPL 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
involved except as otherwise indicated in the Registration
Statement; and Deloitte & Touche LLP, who have audited the
audited financial statements, are independent public
accountants as required by the Securities Act and the
Exchange Act and the rules and regulations of the Commission
thereunder.
(c) Except as reflected in or contemplated by the
Registration Statement and the Prospectus, since the
respective most recent dates as of which information is
given in the Registration Statement and Prospectus, there
has not been any material adverse change in the business,
properties or financial condition of FPL nor has any
material transaction been entered into by FPL other than
changes and transactions contemplated by the Registration
Statement and Prospectus, and transactions in the ordinary
course of business. FPL has no material contingent
obligation which is not disclosed in the Registration
Statement and Prospectus.
(d) The consummation of the transactions herein
contemplated 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 legal, valid and binding obligations of FPL in
accordance with their terms, except as limited by
bankruptcy, insolvency or other laws affecting mortgagees'
and other creditors' rights generally and equitable
limitations on the enforceability of specific remedies.
(e) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof 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,
by-laws or any indenture, mortgage, deed of trust or other
agreement or instrument to which FPL is now a party, or
violate any law or any order, rule, decree or regulation
applicable to FPL of any Federal or state court, regulatory
board or body or administrative agency having jurisdiction
over FPL or any of its property, except where such breach,
default or violation would not have a material adverse
effect on the business, properties or financial condition of
FPL.
(f) All the property to be subjected to the lien of
the Mortgage will be adequately described therein.
SECTION 2. Purchase and Sale. On the basis of the
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representations and warranties herein contained, and subject to
the terms and conditions in this agreement set forth, FPL agrees
to sell to the respective Underwriters named in Schedule A to the
Proposal, severally and not jointly, and the respective
Underwriters agree, severally and not jointly, to purchase from
FPL, the respective principal amounts of Bonds set forth opposite
their respective names in Schedule A to the Proposal at the
purchase price set forth in the Proposal.
SECTION 3. Public Offering. The Underwriters propose to
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make a bona fide public offering of the Bonds as set forth in the
Prospectus, 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.
SECTION 4. Time and Place of Closing, Default of
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Underwriter. Delivery of the Bonds and payment therefor by
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certified or official bank check or checks, payable to the order
of FPL in New York Clearing House or similar next day funds or by
wire transfer in federal funds (or in such other manner as may be
set forth in the Proposal), shall be made at the time, date and
place set forth in the Proposal, or at such other time, date or
place as shall be agreed upon in writing by FPL and the
Representatives. The hour 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 in fully registered form
in such authorized denominations and registered in such names as
the Representatives may reasonably request in writing not later
than 12:30 p.m., New York City time, on the third business day
prior to the Closing Date, or to the extent not so requested,
registered in the names of the respective Underwriters in such
authorized denominations as FPL shall determine. 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 office
of Xxxx & Priest LLP, 00 Xxxx 00xx 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
and 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 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 take up and pay for (in addition to the
respective principal amount of the Bonds set forth opposite their
respective names in Schedule A to the Proposal) the principal
amount of the Bonds which such defaulting Underwriter or
Underwriters failed to take up and pay for, up to a principal
amount thereof equal to, in the case of each such remaining
Underwriter, ten percent (10%) of the principal amount of the
Bonds set forth opposite the name of such remaining Underwriter
in said Schedule A to the Proposal, and such remaining
Underwriters shall have the right, within 24 hours of receipt of
such notice, either to take up and pay for (in such proportion as
may be agreed upon among them), or to substitute another
Underwriter or Underwriters, satisfactory to FPL, to take up and
pay for, the remaining principal amount of the Bonds which the
defaulting Underwriter or Underwriters agreed but failed to
purchase. If any unpurchased Bonds still remain, 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 set forth
in this agreement. In the event that, within the respective
prescribed periods, the non-defaulting Underwriters notify FPL
that they have arranged for the purchase of such Bonds, or 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 or 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 2 hereof), except as otherwise
provided in subsections (c) and (e) of Section 5 hereof.
SECTION 5. Covenants of FPL. FPL agrees that:
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(a) It will promptly transmit copies of the Prospectus
to the Commission for filing pursuant to Rule 424.
(b) It 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
all 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. FPL will deliver to the Underwriters
through the Representatives as soon as practicable after the
date of this agreement as many copies of the Prospectus as
the Representatives may reasonably request for the purposes
contemplated by the Securities Act. FPL will promptly
advise the Representatives of the issuance of any stop order
under the Securities Act with respect to the Registration
Statement or the institution of any proceedings therefor of
which FPL shall have received notice prior to the
termination of the offering of the Bonds hereunder. FPL
will use its best efforts to prevent the issuance of any
such stop order and to secure the prompt removal thereof, if
issued.
(c) It will pay all expenses in connection with (i)
the preparation and filing by it of the Registration
Statement and Prospectus, (ii) the issuance and delivery of
the Bonds as provided in Section 4 hereof, (iii) the
preparation, execution, filing and recording of the
Supplemental Indenture, and (iv) the printing and delivery
to the Representatives for the account of the Underwriters,
in reasonable quantities, of copies of the Registration
Statement and the Prospectus and the Supplemental Indenture
and will pay all taxes, if any (but not including any
transfer taxes), on the issuance of the Bonds and the
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 as
provided in Sections 6 and 7 hereof and except that if this
agreement shall be terminated in accordance with the
provisions of Xxxxxxx 0, 0 xx 0 xxxxxx, XXX will pay the
fees and disbursements of Counsel for the Underwriters,
whose fees and disbursements the Underwriters agree to pay
in any other event. FPL shall not in any event be liable to
any of the several Underwriters for damages on account of
loss of anticipated profits.
(d) During a period of nine months after the date of
this agreement, if any event relating to or affecting FPL or
of which FPL shall be advised in writing by the
Representatives shall occur which, in FPL's opinion, should
be set forth in a supplement to or an amendment of the
Prospectus in order to make the Prospectus not misleading in
light of the circumstances when it is delivered to a
purchaser, FPL will forthwith at its expense prepare and
furnish to the Representatives a reasonable number of copies
of a supplement or supplements or an amendment or amendments
to the Prospectus which will supplement or amend the
Prospectus so that as supplemented or amended it will not
include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the
statements 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.
(e) It 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
jurisdictions as the Representatives may designate and will
pay filing fees in the aggregate not exceeding $ ,
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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.
(f) It will make generally available to its security
holders, 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) in reasonable detail
covering the 12 months beginning not later than the first
day of the quarter next succeeding the month in which
occurred the effective date of the Registration Statement as
defined in Rule 158 under the Securities Act.
(g) On or before the Closing Date, it 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 is
located.
SECTION 6. Conditions of Underwriters' Obligations. The
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several obligations of the Underwriters to purchase and pay for
the Bonds shall be subject to the accuracy of, and compliance
with, the representations and warranties of FPL contained herein
on the Closing Date, 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) 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 document incorporated by reference shall have been
issued; no proceedings for either such purpose shall be
pending before, or threatened by, the Commission on such
date; and the Representatives shall have received, prior to
payment for the Bonds, a certificate of FPL dated the
Closing Date to the effect that, to the best of its
knowledge, no such order is in effect and no proceedings for
such purpose are pending before, or to the knowledge of FPL
threatened by, the Commission.
(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 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.
(c) At the Closing Date, the Representatives shall
have received from Steel Xxxxxx & Xxxxx LLP, counsel to FPL,
a favorable opinion (with a copy thereof for each of the
Underwriters), which opinion will not pass upon compliance
with provisions of the blue sky laws of any jurisdiction, in
form and substance satisfactory to Counsel for the
Underwriters, to the effect that:
(i) FPL is a validly organized and existing
corporation and is in good standing under the laws of
the State of Florida, and is doing business in that
State, and has valid franchises, licenses and permits
adequate for the conduct of its business;
(ii) FPL is a corporation duly authorized by
its Charter to conduct the business which it is now
conducting as set forth in the Prospectus; FPL is
subject, as to retail rates and services, issuance of
securities, accounting and certain other matters, to the
jurisdiction of the Florida Public Service Commission;
and FPL is subject, as to wholesale rates, accounting
and certain other matters to the jurisdiction of the
Federal Energy Regulatory Commission;
(iii) the Mortgage has been duly and validly
authorized by all necessary corporate action, has been
duly and validly executed and delivered, and is a valid
and binding instrument enforceable in accordance with
its terms, except as limited by bankruptcy, insolvency
or other laws affecting mortgagees' and other creditors'
rights generally and equitable limitations on the
enforceability of specific remedies;
(iv) the Bonds are valid and binding
obligations of FPL in accordance with their terms,
except as limited by bankruptcy, insolvency or other
laws affecting mortgagees' and other creditors' rights
generally and equitable limitations on the
enforceability of specific remedies, and are entitled to
the benefit of the security afforded by the Mortgage;
(v) the Registration Statement, at the Effective
Date, and the Prospectus, at the 424 Date (except as to
the financial statements and other financial or
statistical data contained or incorporated by reference
therein, upon which such opinion need not pass and
except for those parts of the Registration Statement
that constitute the Statement of Eligibility and
Qualification on Form T-1, upon which such opinion need
not pass), complied as to form in all material respects
with the applicable requirements of the Securities Act
and the applicable instructions, rules and regulations
of the Commission thereunder and the Incorporated
Documents (except as to the financial statements and
other financial or statistical data contained or
incorporated by reference therein, upon which such
opinion need not pass), at the time they were filed with
the Commission, complied as to form in all material
respects with the applicable requirements of the
Exchange Act and the applicable instructions, rules and
regulations of the Commission thereunder. The
Registration Statement has become, and is at the Closing
Date, effective under the Securities Act, and to the
best of the knowledge of said counsel, no proceedings
for a stop order with respect thereto are pending or
threatened under Section 8 of the Securities Act;
(vi) the consummation of the transactions
herein contemplated and the fulfillment of the terms
hereof 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, the Charter or by-laws of FPL or any
indenture, mortgage, deed of trust or other agreement or
instrument the terms of which are known to such counsel
to which FPL is now a party, except where such breach or
default would not have a material adverse effect on the
business, properties or financial condition of FPL;
(vii) nothing has come to the attention of said
counsel that would lead them to believe that the
Registration Statement (except as to financial
statements and other financial or statistical data
contained or incorporated by reference therein, upon
which such opinion need not pass and except for those
parts of the Registration Statement that constitute the
Statement of Eligibility and Qualification on Form T-1,
upon which such opinion need not pass), at the Effective
Date, 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 or that the Prospectus, at the
424 Date, and at the Closing Date (except as aforesaid)
included or includes, any untrue statement of a material
fact or omitted 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 such counsel may
state that their belief is based upon their
participation in the preparation of the Registration
Statement and the Prospectus and any supplements and
amendments thereto and review and discussion of the
contents thereof, but is without independent check or
verification except as specified;
(viii) the Bonds are being issued and sold
pursuant to the authority contained in an order of the
Florida Public Service Commission, which authority is
adequate to permit the issuance and sale of the Bonds.
To the best of the knowledge of said counsel, said
authorization is still in full force and effect, and no
further approval, authorization, consent or order of any
public board or body (other than in connection or in
compliance with the provisions of the blue sky laws of
any jurisdiction) is legally required for the
authorization of the issuance and sale of the Bonds;
(ix) the Bonds conform, as to legal matters,
with the statements concerning them made under the
headings "New Bonds" and "Certain Terms of the Offered
Bonds" in the Prospectus;
(x) the Mortgage is duly qualified under the 1939
Act;
(xi) this agreement has been duly and validly
authorized, executed and delivered by FPL;
(xii) if Bonds are to be sold pursuant to this
agreement on the Closing Date, as to the Mortgaged and
Pledged Property, as defined in the Mortgage, FPL has
satisfactory title to any easements and personal
properties, and good and marketable or insurable title
in fee simple to any other real properties (except as
FPL's interest is stated to be otherwise), subject only
to Excepted Encumbrances, as defined in the Mortgage, to
any lien, if any, existing or placed thereon at the time
of acquisition thereof by FPL, to minor defects and
encumbrances customarily found in the case of properties
of like size and character and which, in the opinion of
said counsel, would not impair the use thereof by FPL
(all of which title exceptions, encumbrances, liens and
defects are hereinafter referred to as "Exceptions"),
and to the lien of the Mortgage; the Mortgage
constitutes a valid, direct, and first mortgage lien
upon the Mortgaged and Pledged Property now owned by
FPL, subject, however, to the Exceptions and as set
forth in the last sentence of this paragraph; and the
description of properties in the Mortgage is adequate to
constitute the Mortgage a lien on Mortgaged and Pledged
Property hereafter acquired by FPL, subject, however, to
the Exceptions and except as limited by bankruptcy,
insolvency or other laws affecting mortgagees' and other
creditors' rights generally and equitable limitations on
the enforceability of specific remedies. The
Supplemental Indenture is in proper form for recording
in all places required; and upon such recording, the
Supplemental Indenture will constitute adequate record
notice to perfect the lien of the Mortgage as to all
Mortgaged and Pledged Property acquired by FPL
subsequent to the recording of the
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Supplemental Indenture and prior to the recording of the
Supplemental Indenture;
(xiii) except as stated or referred to in the
Prospectus, there are no material pending legal
proceedings to which FPL is a party or of which property
of FPL is the subject which if determined adversely
would have a material adverse effect on FPL, and, to the
best of the knowledge of said counsel, no such
proceeding is known to be contemplated by governmental
authorities; and
(xiv) the information contained in the
Prospectus, which is stated therein to have been made in
reliance upon the authority of said counsel or is
specifically attributed to them, has been reviewed by
them and is correct.
In said opinion such counsel may rely as to all
matters of New York law on an opinion of Xxxx & Priest
LLP and as to matters relating to Mortgaged and Pledged
Property located in the State of Georgia on (i) prior
opinions provided to FPL on matters of Georgia law and
(ii) a current opinion from Georgia counsel.
(d) At the Closing Date, the Representatives shall
have received from Xxxx & Priest LLP, counsel to FPL, a
favorable opinion (with a copy thereof for each of the
Underwriters), which opinion will not pass upon compliance
with provisions of the blue sky laws of any jurisdiction, in
form and substance satisfactory to Counsel for the
Underwriters, to the same effect with respect to matters
enumerated in paragraphs (iii) through (xi) in subsection
(c) of this Section 6. In said opinion such Counsel may
rely as to all matters of Florida law on the opinion of
Steel Xxxxxx & Xxxxx LLP.
(e) At the Closing Date, the Representatives shall
have received from Counsel for the Underwriters a favorable
opinion (with a copy thereof for each of the Underwriters)
to the same effect with respect to the matters enumerated in
(iii) - (v) and (vii) - (xi) of subsection (c) of this
Section 6 as the opinion required by said subsection (c).
In said opinion such counsel may rely as to all matters of
Florida law on the opinion of Steel Xxxxxx & Xxxxx LLP, and
will not pass upon the incorporation of FPL, titles to
property, franchises or the lien of the Mortgage.
(f) At the Closing Date, the Representatives shall
have received from Deloitte & Touche LLP a letter (with
copies thereof for each of the Underwriters) to the effect
that (i) they are independent public accountants 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 Prospectus 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 a reading of the unaudited condensed consolidated
financial statements of FPL incorporated by reference in the
Prospectus, the latest available interim unaudited
consolidated financial statements of FPL since the close of
FPL's most recent audited fiscal year, 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 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 generally accepted auditing standards and they would
not necessarily reveal matters of significance with respect
to the comments made in such letter, and accordingly that
Deloitte & Touche LLP make 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 incorporated by
reference in the Prospectus (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 Prospectus 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 Prospectus, (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 to the Closing
Date there was any change in the common stock, additional
paid-in capital, preferred stock or long-term debt of FPL
and its subsidiaries, or decrease in their net assets, in
each case as compared with amounts shown in the most recent
consolidated balance sheet incorporated by reference in the
Prospectus, except in all instances for changes or decreases
which the Prospectus 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
consolidated balance sheet incorporated by reference in the
Prospectus 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 Closing Date,
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 Prospectus 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 Prospectus and Exhibit 12 to the
Registration Statement and such other items as the
Representatives may reasonably request.
(g) Since the respective most recent dates as of which
information is given in the Registration Statement and
Prospectus and up to the Closing Date, there shall have been
no material adverse change in the business, properties or
financial condition of FPL, except as reflected in or
contemplated by the Registration Statement and Prospectus,
and since such dates and up to the Closing Date, there shall
have been no material transaction entered into by FPL other
than transactions disclosed by the Registration Statement
and the Prospectus and transactions in the ordinary course
of business; and at the Closing Date, the Representatives
shall have received a certificate to such effect, signed by
FPL.
(h) 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 6 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 (c) and (e) of Section 5 hereof
and except that in the event of such termination by the
Representatives, FPL shall reimburse 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 $ .
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SECTION 7. Conditions of FPL's Obligations. The
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obligation of FPL to deliver the Bonds shall be subject to the
following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, and no order directed to the
adequacy of any document incorporated by reference, shall be
in effect at 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 any of the conditions specified in this Section 7
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 (c) and (e) of Section 5 hereof and except that in
the event of such termination by FPL, FPL shall reimburse 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 $ .
-----
SECTION 8. Indemnification.
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(a) FPL agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter
within the meaning of Section 15 of the Securities Act
against any and all losses, claims, damages or liabilities,
joint or several, to which it or any of them may become
subject under the Securities Act or any other statute or
common law, and to reimburse each such Underwriter and
controlling person for any legal or other expenses
(including, to the extent hereinafter provided, reasonable
counsel fees) 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 any
untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus (if used prior
to the Effective Date), including all Incorporated
Documents, or in the Registration Statement or the
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 paragraph 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 herein or to FPL in
writing by or on behalf of any Underwriter, through the
Representatives or otherwise, for use in connection with the
preparation of the Registration Statement or the Prospectus
or any amendment or supplement to either thereof, or arising
out of, or based upon, statements in or omissions from the
Statement of Eligibility and Qualification on Form T-1 of
the Mortgage Trustee and provided, further, that the
indemnity agreement contained in this paragraph in respect
of any preliminary prospectus shall not inure to the benefit
of any Underwriter (or of any person controlling such
Underwriter) on account of any such losses, claims, damages,
liabilities, expenses or actions arising from the sale of
the Bonds to any person if such Underwriter shall have
failed to send or give to such person (i) with or prior to
the written confirmation of such sale, a copy of the
Prospectus or the Prospectus as amended or supplemented, if
any amendments or supplements thereto shall have been
furnished at or prior to the time of written confirmation of
the sale involved, but exclusive of any Incorporated
Documents unless, with respect to the delivery of any
amendment or supplement, the alleged omission or alleged
untrue statement is not corrected in such amendment or
supplement at the time of confirmation, or (ii) with or
prior to the delivery of such Bonds to such person, a copy
of any amendment or supplement to the Prospectus which shall
have been furnished subsequent to such written confirmation
and prior to the delivery of such Bonds to such person,
exclusive of any Incorporated Documents unless, with respect
to the delivery of any amendment or supplement, the alleged
omission or alleged untrue statement was not corrected in
such amendment or supplement at the time of such delivery.
The indemnity agreement of FPL contained in this paragraph
and the representations and warranties of FPL contained in
Section 1 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 controlling person,
and shall survive the delivery of the Bonds. 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
controlling person in connection with the issuance and sale
of the Bonds.
(b) Each Underwriter agrees to indemnify and hold
harmless FPL, its officers and directors, and each person
who controls any thereof within the meaning of Section 15 of
the Securities 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
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) 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 any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement or 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
herein or to FPL in writing by or on behalf of such
Underwriter, through the Representatives or otherwise, for
use in connection with the preparation of the Registration
Statement or the Prospectus or any amendment or supplement
to either thereof. The indemnity agreement of the
respective Underwriters contained in this paragraph 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. 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.
(c) FPL and 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
may be sought on account of any indemnity agreement
contained herein, it will promptly give written notice of
the commencement thereof to the party or parties against
whom indemnity 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 such
indemnity agreement. In case such notice of any such action
shall be so given, such indemnifying party 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 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 shall elect
not to assume the defense of such action, such indemnifying
party 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, to participate in the defense of such action on
behalf of such indemnified party or parties (it being
understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel
representing the indemnified parties who are parties to such
action).
SECTION 9. 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 (a) after the date
hereof and at or prior to the Closing Date there shall have
occurred any general suspension of trading in securities on the
New York Stock Exchange, Inc. or there shall have been
established by the New York Stock Exchange, Inc. 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
restrictions on the distribution of securities, or a general
banking moratorium declared by New York or federal authorities,
or (b) there shall have occurred any new outbreak of hostilities
including, but not limited to, an escalation of hostilities which
existed prior to the date of this agreement or other national or
international calamity or crisis, the effect of any such event
specified in (a) or (b) above on the financial markets of the
United States shall be such as to make it impracticable for the
Underwriters to enforce contracts for the sale of the Bonds.
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 Prospectus prepared and furnished by FPL reflects a
material adverse change in the business, properties or financial
condition of FPL which renders it either inadvisable to proceed
with such offering, if any, or inadvisable to proceed with the
delivery of the Bonds to be purchased hereunder. Any termination
of this agreement pursuant to this Section 9 shall be without
liability of any party to any other party except as otherwise
provided in subsections (c) and (e) of Section 5 hereof.
SECTION 10. Miscellaneous. The validity and
-------------
interpretation of this agreement shall be governed by the law of
the State of New York. This agreement shall inure to the benefit
of FPL, the several Underwriters and, with respect to the
provisions of Section 8 hereof, each controlling person referred
to in said Section 8, and their respective successors. Nothing
in this agreement is intended or shall be construed to give to
any other person, firm or corporation 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.
SECTION 11. 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 the Proposal hereto, or if to FPL, shall be mailed or
delivered to it at 000 Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxx
00000, attention: Treasurer.
