EXHIBIT 1(b)
FLORIDA POWER & LIGHT COMPANY
SECURED MEDIUM-TERM NOTES, SERIES__
DISTRIBUTION AGREEMENT
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[Date]
[Names and Addresses of Agents]
Ladies and Gentlemen:
The undersigned, FLORIDA POWER & LIGHT COMPANY, a Florida corporation
("FPL"), hereby confirms its agreement with each of you (individually, an
"Agent" and collectively, the "Agents") as follows:
1. APPOINTMENT OF AGENTS.
(a) FPL has authorized by appropriate corporate action and proposes to
issue and sell in the manner contemplated by this agreement up to
$_____________ aggregate principal amount of Securities (as defined in
Section 3(a) hereof) registered pursuant to the Registration Statement (as
defined in Section 3(a) hereof).
(b) Subject to the terms and conditions stated in this agreement, FPL
hereby appoints each of you as Agent for the purpose of offering and
selling the Securities. FPL reserves the right to sell the Securities on
its own behalf directly to investors and, from time to time, to appoint
additional agents to sell the Securities, provided that FPL shall furnish
the Agents with reasonable advance notification of the addition of any
agent to sell the Securities and further provided that each such additional
agent shall be required to execute a distribution agreement in form and
substance substantially similar to this agreement, except that FPL and each
such additional agent may change the form and substance of the commission
rate schedule contained in each respective distribution agreement in any
manner acceptable to FPL and such additional agent. FPL further reserves
the right to change the principal amount of Securities to be sold by the
Agents pursuant to this agreement, provided that FPL shall furnish the
Agents with reasonable advance notification of such change. The foregoing
shall not be construed to prevent FPL from selling at any time any of its
securities, including the Securities in a firm commitment underwriting
pursuant to an underwriting agreement that does not provide for a
continuous offering of such securities. In the event that FPL shall sell
securities during the period between the time at which FPL has accepted an
offer to purchase Securities solicited by an Agent from such purchaser
under the terms and conditions of this agreement and the Settlement Date
(as defined in Section 4 hereof) and such sale directly results in the
failure of such purchaser to accept delivery or pay for the Securities, FPL
shall be obligated to pay the Agent a commission in respect of such
Securities to be calculated in accordance with Exhibit B attached hereto.
(c) On the basis of the representations and warranties contained herein,
but subject to the terms and conditions herein set forth, each Agent
agrees, as agent of FPL, to use its reasonable best efforts when requested
by FPL to solicit offers to purchase the Securities upon the terms and
conditions set forth in the Prospectus (as defined in Section 3(a) hereof)
and the Administrative Procedures attached hereto as Exhibit A, as they may
be amended from time to time (the "Procedures").
(d) Administrative procedures relating to the offer and sale of the
Securities, the issue and delivery of certificates representing the
Securities and payment for the Securities are set forth in the Procedures.
Each Agent and FPL agree to perform the respective duties and obligations
to be performed by each of them as provided in the Procedures. The
Procedures may be amended only by a written agreement between FPL and the
Agents. The Agents agree that the principal amount of Securities to be
offered and sold from time to time, the prices, the interest rates or the
method, if any, of determining such interest rates, the maturities,
redemption provisions, and other terms at which the Securities are to be
offered and sold will be in compliance with limitations established by FPL
with the Agents in accordance with the Procedures.
(e) Promptly upon the Settlement Date, each Agent will be paid a commission
for such Agent's services in acting as an agent for FPL in the sale of the
Securities and not for a purchase by such Agent as principal, in accordance
with the schedule set forth in Exhibit B hereto.
(f) Upon execution of this agreement by FPL and each Agent, it is agreed
that the Distribution Agreement, dated ____________ ("Prior Distribution
Agreement"), among FPL and each of the Agents is terminated in accordance
with Section 11 of such Prior Distribution Agreement.
2. DESCRIPTION OF SECURITIES. FPL proposes to issue the Securities 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, pursuant to the ____________ Supplemental
Indenture relating to an aggregate principal amount not to exceed
$______________ of First Mortgage Bonds, designated Secured Medium-Term Notes,
Series __ (the "Series __ Notes") dated as of ___________ (the "Supplemental
Indenture"), previously delivered to the Agents. On the date hereof,
$______________ aggregate principal amount of such Series __ Notes remain
unissued under the Supplemental Indenture. The Mortgage and Deed of Trust as it
may be supplemented as of any Settlement Date is hereafter called the
"Mortgage".
The Securities shall have the maturities, interest rates or the method, if
any, of determining interest rates, redemption provisions, and other terms as
set forth in the Prospectus. The Securities will be issued, and the terms
thereof established, from time to time by FPL in accordance with the Mortgage
and the Procedures.
3. REPRESENTATIONS AND WARRANTIES OF FPL. FPL represents and warrants to
each Agent that:
(a) FPL has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3, including a prospectus
("Registration Statement No. 333-______"), for the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of
$______________ aggregate principal amount of its First Mortgage Bonds.
Such registration statement has been declared effective by the Commission
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.
Subsequent to the date hereof, it will file with the Commission any
additional registration statement or registration statements ("Subsequent
Registration Statement") with respect to its First Mortgage Bonds necessary
to assure that Securities (as defined below) offered and sold in accordance
with the terms of this agreement are registered under the Securities Act.
References herein to the term "Registration Statement" as of any given date
shall initially mean Registration Statement No. 333-_______, 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"). If FPL files a Subsequent Registration
Statement with respect to its First Mortgage Bonds which FPL has notified
the Agents will be available for offer and sale in accordance with the
terms of this agreement ("Future Bonds"), at and after the time such
Subsequent Registration Statement is declared effective by the Commission,
references herein to the term "Registration Statement" as of any given date
shall mean such Subsequent Registration Statement and, until such time as
all First Mortgage Bonds registered pursuant to Registration Statement No.
333-______ ("Current Bonds") have been issued and sold (assuming that all
Current Bonds are issued and sold before any Future Bonds) or deregistered,
as the case may be, said Registration Statement No. 333-______, as it may
be amended or supplemented at such time, including as of such time all
Incorporated Documents. References herein to the term "Prospectus" at a
particular time shall mean the prospectus forming a part of Registration
Statement No. 333-______ or, after the Subsequent Registration Statement is
declared effective by the Commission, the prospectus or combined prospectus
forming a part of the Subsequent Registration Statement, each as may be
supplemented by a prospectus supplement or prospectus supplements relating
to, as the case may be, Current Bonds or Future Bonds, designated as
Secured Medium-Term Notes, Series ___ ("Securities"), proposed to be filed
pursuant to Rule 424(b) of the general rules and regulations of the
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Securities Act ("Rule 424"), and as further amended or supplemented at such
time (other than, when referring to the Prospectus relating to a particular
offering of Securities, amendments or supplements relating to Securities
other than the Securities being offered at a particular time), including
all Incorporated Documents. References herein to the term "Effective Date"
shall be deemed initially to refer to the later of the time and date
Registration Statement No. 333-______ was declared effective or the time
and date of the filing thereafter of FPL's most recent Annual Report on
Form 10-K and, after any Subsequent Registration Statement has been
declared effective by the Commission, references to the term "Effective
Date" shall be deemed to refer to the later of the time and date the
Subsequent Registration Statement was declared effective or the time and
date of the filing thereafter of FPL's most recent Annual Report on Form
10-K. For purposes of this agreement, any Incorporated Document filed with
the Commission shall be deemed an amendment to the Registration Statement
and a supplement to the Prospectus. Each of the Agents acknowledges that
subsequent to the [Settlement Date], FPL may file a post-effective
amendment to the Registration Statement in order to file one ore more
unqualified opinions on counsel pursuant to Rule 462(d) under the
Securities Act.
(b) At the Effective Date, the Registration Statement fully complied, and
on each date the Prospectus is filed with, or transmitted for filing to,
the Commission pursuant to Rule 424 (such date, the "Rule 424 Date") and on
any Settlement Date, the Prospectus and the Mortgage 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 contain, and on any Settlement Date, 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; on each Rule 424 Date and on any Settlement Date,
the Prospectus 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 (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 Agents for
use in connection with the preparation of the Registration Statement or the
Prospectus, or to any statements in or omissions from the Statement of
Eligibility on Form T-1, or amendments thereto, of the Mortgage Trustee or
to any statements or omissions made in the Registration Statement or
Prospectus relating to The Depository Trust Company ("DTC") Book-Entry Only
System that are based solely on information contained in published reports
of DTC.
(c) The financial statements included as part of or incorporated by
reference in the Prospectus 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 involved except as otherwise indicated in
the Registration Statement; and Deloitte & Touche LLP, who have audited the
audited financial statements of FPL, are independent public accountants as
required by the Securities Act and the Exchange Act and the rules and
regulations of the Commission thereunder.
(d) 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 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 Registration Statement and Prospectus, 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 Registration
Statement and Prospectus.
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(e) The execution and delivery of this agreement, 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 Securities 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.
(f) The execution and delivery of this agreement, the consummation of the
transactions herein contemplated, 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 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.
(g) FPL has no direct or indirect significant subsidiaries (as defined in
Regulation S-X (17 CFR Part 210)).
(h) All the property to be subjected to the lien of the Mortgage will be
adequately described therein.
(i) FPL is not an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
4. SETTLEMENT. Delivery of Securities in fully registered form shall be
made in accordance with the Procedures. The date of authentication and issuance
of the Global Security (as defined in the Procedures attached hereto) sold
against delivery to FPL of funds in payment therefor is herein called the
"Settlement Date." Delivery of, and payment for, Securities sold to the Agents
as principal shall be made in accordance with the Terms Agreement (as defined in
Section 12 hereof) relating to such Securities.
5. OBLIGATIONS OF AGENTS.
(a) In soliciting purchases of the Securities from FPL by others (including
customers of the Agents), each Agent will be acting as sales agent for FPL
and not as principal. Each Agent will use its reasonable best efforts to
solicit and receive offers to purchase the Securities on behalf of FPL as
contemplated hereby; provided, that each Agent in its sole discretion may
suspend from time to time its efforts in offering for sale, and soliciting
purchases of, the Securities. In any transaction where an Agent has acted
as agent for FPL and has not purchased as principal, the Agent will make
reasonable efforts to obtain performance by each purchaser of Securities
from FPL, but the Agent will not have any liability to FPL in the event any
such purchase is not consummated for any reason. FPL also understands that
under no circumstances shall an Agent be obligated to purchase any
Securities for its own account except to the extent that such Agent has
acted as principal in purchasing Securities or has made a firm commitment
with FPL in connection with an offering which has been expressly authorized
by FPL and agreed to by such Agent. Unless FPL and the Agents shall
otherwise agree, all purchases by an Agent as principal shall be made
pursuant to a Terms Agreement.
(b) Each Agent agrees that in carrying out the transactions contemplated by
this agreement, it will observe and comply with all securities or blue sky
laws, regulations, rules and ordinances in any jurisdiction in which the
Securities may be offered, sold or delivered applicable to it as Agent
hereunder. Each Agent agrees not to cause any advertisement of the
Securities to be published in any newspaper or periodical or posted in any
public place and not to publicly issue any circular relating to the
Securities other than the Prospectus, except in any case with the express
consent of FPL.
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6. COVENANTS OF FPL. FPL agrees with each Agent that:
(a) FPL will advise the Agents promptly (i) when any amendment to the
Registration Statement, except any Incorporated Documents, has become
effective or any supplement to the Prospectus has been filed, (ii) of any
request by the Commission for any amendment of the Registration Statement
or the Prospectus or for any additional information with respect to the
Registration Statement or the Prospectus, (iii) of the issuance by the
Commission of any "stop order" suspending the effectiveness of the
Registration Statement or the institution, or advice from the Commission
that it is considering the institution, of any proceeding for that purpose,
and (iv) of the receipt by FPL of any official notification with respect to
the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. FPL will use its every commercially reasonable effort to prevent
the issuance of any such "stop order" and, if issued, to obtain as soon as
possible the withdrawal thereof. FPL will not file any amendment to the
Registration Statement or supplement to the Prospectus unless FPL has
furnished the Agents through Hunton & Xxxxxxxx LLP, who are acting as
counsel for the Agents ("Counsel for the Agents") copies for its review
prior to filing, except that FPL is not required to so furnish the Agents
with copies of any amendment to the Registration Statement or supplement to
the Prospectus if such amendment or supplement is a Form 8-K filed solely
for the purpose of filing, pursuant to Item 601 of Regulation S-K, exhibits
unrelated to the transactions contemplated by this agreement.
(b) FPL will furnish such proper information as may be lawfully required
and otherwise cooperate in qualifying the Securities for offer and sale
under the blue sky laws of such jurisdictions as the Agents may reasonably
designate after consultation with FPL 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.
(c) FPL will timely file such statements and reports as are or may be
required of it as the issuer of the Securities to continue such
qualifications under such securities laws in effect for so long as this
agreement remains in effect.
(d) FPL will furnish to the Agents and Counsel for the Agents 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 Securities, 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 furnish to the Agents
as many copies of the Prospectus as the Agents may reasonably request for
the purposes contemplated by the Securities Act.
(e) FPL will deliver to the Agents without charge as soon as practicable
after the Registration Statement and each post-effective amendment thereto
becomes effective, and as soon as practicable after each supplement to the
Prospectus has been filed, as many copies of the Prospectus as then amended
or supplemented as the Agents may reasonably request for the purposes
contemplated by the Securities Act.
(f) FPL will timely file all reports, and amendments thereto, required to
be filed by FPL with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act subsequent to the original effective date of the Registration
Statement and for so long as this agreement shall remain in effect and to
deliver to the Agents without charge promptly after the filing thereof as
many copies of each such report and amendment (excluding exhibits) as the
Agents may reasonably request.
(g) FPL will deliver to the Agents, so long as this agreement shall remain
in effect, as promptly as possible copies of any published reports of FPL
to its security holders, including any annual report and quarterly reports
of FPL, and any other financial reports made generally available to its
security holders.
(h) If an earnings statement is not included in a quarterly report of FPL,
FPL will make generally available to its security holders once in each
calendar quarter, commencing with the quarter beginning after the date of
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this agreement and ending with the first calendar quarter after the quarter
which ends twelve consecutive months after the end of the calendar quarter
in which the last sale of Securities effected pursuant hereto occurs, an
earnings statement (which need not be audited) of FPL in reasonable detail,
covering a period of twelve consecutive months ending at the close of the
next preceding calendar quarter, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act.
(i) So long as this agreement remains in effect and at any time thereafter
when delivery of a prospectus shall be required by the Securities Act in
connection with the sale of any of the Securities or resale of any
Securities purchased by the Agents as principal hereunder, if any event
relating to or affecting FPL, which, in the opinion of FPL, should be set
forth in a supplement to or an amendment of the Prospectus in order to make
the Prospectus not misleading in the light of the circumstances when it is
delivered, FPL will forthwith (i) notify the Agents promptly to suspend
offers for sale and solicitations of purchases of the Securities, and
promptly after the receipt of such notice the Agents will suspend offers
for sale and solicitations of purchases of the Securities and cease using
the Prospectus and (ii) at its expense prepare and furnish to the Agents 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 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, not misleading (provided
that should such event relate solely to the activities of any of the
Agents, then the Agents shall assume the expense of preparing and
furnishing copies of any such amendment or supplement) and will advise the
Agents when they may resume offers for sale and solicitations of purchases
of the Securities.
(j) FPL will pay or cause to be paid all expenses, fees and taxes (but not
including any transfer taxes) in connection with (i) the preparation and
filing and printing of copies of the Registration Statement and amendments
thereto and the Prospectus and amendments and supplements thereto,
including in each case all Incorporated Documents, and this agreement, (ii)
the issuance and delivery of the Securities, (iii) the qualification for
offer and sale of the Securities under securities laws as aforesaid
(subject to the limit on such expenses and fees specified in Section 6(b)
hereof) and (iv) the preparation, execution, filing and recording of the
Supplemental Indenture. FPL also agrees to pay or reimburse the Agents for
the reasonable fees and expenses of Counsel for the Agents for their
continuing advice and services in connection with the transactions
contemplated hereby including advice and services in connection with any
Subsequent Registration Statement and (unless otherwise specified in a
Terms Agreement) any purchase by the Agents or any Agent pursuant to
Section 12 hereof. The Agents agree to notify FPL semi-annually in writing
in reasonable detail of such fees and expenses of Counsel for the Agents.
(k) Promptly after the execution of this agreement FPL will reimburse the
Agents for the reasonable fees and expenses of Counsel for the Agents and
other out-of-pocket expenses of the Agents related to the Agents' services
in connection with the implementation of the program for the offer and sale
of the Securities as contemplated hereby not exceeding in the aggregate
$________ (exclusive of fees and expenses referred to in Sections 6(b) and
6(j) hereof).
7. CONDITIONS OF AGENTS' OBLIGATIONS. The obligations of the Agents to act
and continue to act as Agents hereunder, and the obligation of the Agents to
purchase Securities as principal pursuant to any Terms Agreement, shall be
subject to the accuracy of, and compliance with, in all material respects, the
representations and warranties of FPL contained herein at the date of this
agreement and any Settlement Date, to the performance by FPL, in all material
respects, of its obligations to be performed hereunder and to the following
conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect; no order of the Commission directed to the
adequacy of any Incorporated Document shall have been issued; no
proceedings for either such purpose shall be pending before, or threatened
by, the Commission; at the date of this agreement the Agents shall have
received a certificate of FPL 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 such purpose are pending before, or, to the knowledge of
FPL threatened by, the Commission; and all requests for additional
information with respect to the Registration Statement or the Prospectus on
the part of the Commission shall have been complied with by FPL to the
reasonable satisfaction of the Agent.
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(b) At the date of this agreement, the Agents shall have received from
Steel Xxxxxx & Xxxxx LLP, counsel to FPL, a favorable opinion (with a copy
thereof for each of the Agents), 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 Agents, 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 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 ("FPSC"); 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 authorized by FPL by all necessary
corporate action, has been duly and validly executed and delivered by
FPL, and is a valid and binding obligation of FPL enforceable against
FPL in accordance with its 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.
(iv) The Securities will, when issued and paid for as contemplated
herein, be valid and binding obligations of FPL and, assuming payment
of intangible tax and document excise tax in accordance with the
Procedures, such Securities will be 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, and will be
entitled to the benefit of the security afforded by the Mortgage.
(v) 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 a Statement of Eligibility on
Form T-1, or amendments thereto, upon which such opinion need not
pass, the Registration Statement, at the Effective Date, and the
Prospectus, at the Rule 424 Date, 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. 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 is, at the date
of this agreement, 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 the Bylaws 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 and its subsidiaries, taken
as a whole.
(vii) Except as to the financial statements and other financial or
statistical data contained or incorporated by reference therein and
except for those parts of the Registration Statement that constitute a
Statement of Eligibility on Form T-1, or amendments thereto, upon
which such opinion need not pass, nothing has come to the attention of
said counsel that would lead them to believe that the Registration
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Statement, at the Effective Date, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements contained
therein not misleading or that the Prospectus, at the Rule 424 Date
and at the date of such opinion (except as aforesaid), included or
includes an untrue statement of a material fact or omitted or omits 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 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 Securities are being issued and sold pursuant to the
authority contained in an order of the FPSC, which authority is
adequate to permit the issuance and sale of the Securities during
[calendar year]. 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 upon which such opinion need not
pass) is legally required for the authorization of the issuance and
sale of the Securities.
(ix) The statements made in the Prospectus under the headings
["Description of the Bonds"] and ["Certain Terms of the Offered
Bonds"] [and _________], insofar as they purport to constitute
summaries of the terms of the documents referred to therein,
constitute accurate summaries of the terms of such documents in all
material respects.
(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) 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 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. Mortgaged and Pledged
Property acquired after the most recent recording of a supplemental
indenture may also be subject to possible rights of others which may
attach prior to recordation of a supplemental indenture subsequent to
the acquisition of such property.
(xiii) Except as stated or referred to in the Prospectus, to the
knowledge of said counsel after due inquiry, there is no material
pending legal proceeding to which FPL or any of its subsidiaries is a
party or of which property of FPL or any of its subsidiaries is the
subject which is reasonably likely to be determined adversely and, if
determined adversely, might reasonably be expected to have a material
adverse effect on FPL and its subsidiaries taken as a whole and, to
the best of the knowledge of said counsel, no such proceeding is known
to be contemplated by governmental authorities.
8
(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 Xxxxxx 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.
(c) At the date of this agreement, the Agents shall have received from
Xxxxxx Xxxx & Priest LLP, co-counsel to FPL, a favorable opinion (with a
copy thereof for each of the Agents), 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 Agents, to the same
effect with respect to matters enumerated in paragraphs (iii) - (xi) of
subsection (b) of this Section 7. 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.
(d) At the date of this agreement, the Agents shall have received from
Xxxxxx & Xxxxxxxx, Counsel for the Agents, a favorable opinion (with a copy
thereof for each of the Agents) to the same effect with respect to the
matters enumerated in (iii) - (v), (vii) and (ix) - (xi) of Subsection (b)
of this Section 7. 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.
(e) At the date of this agreement, each of the Agents shall have received
from Deloitte & Touche LLP a letter 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
performing a review of interim financial information as described in
Statement on Auditing Standards No. 71, Interim Financial Information, and
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 Prospectus, 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, 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 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 makes no representation as to the
sufficiency of such procedures for the several Agents' 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 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 date of this agreement
there was any change in the common stock or additional paid-in capital,
increase in the preferred stock or long-term debt of FPL and its
subsidiaries, or decrease in its common shareholders' equity, 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, increases 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
9
available interim balance sheet read by them to a specified date not more
than five days prior to the date of this agreement, 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 Agents may reasonably request.
(f) Since the respective most recent dates as of which information is given
in the Registration Statement and Prospectus, and up to any Settlement
Date, 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 Registration Statement
and Prospectus, and since such dates there shall have been no material
transaction entered into by FPL or any of its subsidiaries other than
transactions disclosed in or contemplated by the Registration Statement and
the Prospectus, and transactions in the ordinary course of business; and at
the date of this agreement the Agents shall have received a certificate to
such effect from FPL signed by an officer of FPL.
(g) The Agents shall have received any certificate required by Section 8(b)
hereof.
(h) On the first Settlement Date occurring in each calendar year, Steel
Xxxxxx & Xxxxx LLP and Xxxxxx Xxxx & Priest LLP shall each provide to the
Agents an opinion dated the Settlement Date to the effect provided in
Section 7(b)(viii).
(i) There shall be in full force and effect an authorization of the FPSC
with respect to the issuance and sale of the Securities on the terms herein
stated or contemplated, and containing no provision unacceptable to the
Agents by reason of the fact that it is materially adverse to FPL; and at
the date of this agreement the Agents shall have received a certificate to
such effect, signed by FPL.
(j) All legal proceedings to be taken in connection with the issuance and
sale of the Securities shall have been satisfactory in form and substance
to Counsel for the Agents.
In case any of the conditions specified above in this Section 7 shall not
have been fulfilled, the Agents shall have no further obligation to proceed with
any offering, sale, or any solicitation of purchase of the Securities or any
purchase by the Agents as principal of the Securities pursuant to any Terms
Agreement or otherwise.
8. FURTHER REPRESENTATIONS AND WARRANTIES BY FPL. FPL represents and
warrants, and agrees with the Agents, that:
(a) Each authorization by FPL to the Agents to offer for sale, or solicit
purchases of, the Securities as provided in the Procedures and each
purchase of Securities by the Agent as principal pursuant to any Terms
Agreement shall be deemed to be an affirmation that the representations and
warranties of FPL contained in this agreement are true and correct in all
material respects at the time of such authorization or at the date of such
Terms Agreement, as the case may be, and an undertaking that such
representations and warranties will be true and correct in all material
respects at the time of delivery of and payment for Securities sold
pursuant to such authorization or Terms Agreement as provided in Section 4
hereof or in such Terms Agreement, in each case as though made at and as of
each such time or date (except that such representations and warranties
shall be deemed to relate to the Registration Statement and the Prospectus
as amended and supplemented to each such time or date);
(b) Delivery for Securities at each Settlement Date shall be deemed to be a
certification by FPL that (i) all intangible and document excise taxes
payable in accordance with Settlement Procedure E of the Procedures have
been duly paid and (ii) any resolutions of the Board of Directors of FPL or
the Finance Committee of FPL's Board of Directors establishing the
Securities and authorizing their execution, authentication and delivery
pursuant to this agreement have not been amended or superseded and remain
10
in full force and effect; provided that if such resolutions have been
amended or superseded, at each such Settlement Date occurring on or after
such resolutions shall be amended or superseded, FPL shall provide the
Agents with a certificate signed by FPL to the effect that such resolutions
have been so amended or superseded and attaching to such certificate a copy
of the resolutions as amended or the superseding resolutions together with
the opinions of Steel Xxxxxx & Xxxxx LLP and Xxxxxx Xxxx & Priest LLP, each
dated the Settlement Date, to the effect provided in Section 7(b)(iv).
(c) Each time that the Registration Statement or the Prospectus shall be
amended or supplemented, or a document shall be filed under the Exchange
Act which is incorporated by reference in the Registration Statement or
Prospectus (except (i) supplements or amendments relating solely to the
sale of the Securities, (ii) supplements or amendments relating solely to a
change in the interest rates or maturities of the Securities or a change in
the principal amount of Securities remaining to be sold or similar changes
and (iii) Forms 8-K that are filed solely for the purpose of filing
exhibits pursuant to Item 601 of Regulation S-K) or FPL shall sell
Securities to the Agents pursuant to a Terms Agreement (if required by the
Agents with respect to a particular Terms Agreement), FPL shall furnish or
cause to be furnished forthwith to the Agents a certificate in form and
substance satisfactory to the Agents in their reasonable judgment to the
effect that the statements contained in the certificate referred to in
Section 7(f) hereof which were last furnished to the Agents are true and
correct at the time of such amendment or supplement or filing or sale, as
the case may be, as though made at and as of such time (except that such
statements shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu of such a
certificate, a certificate, in form and substance satisfactory to the
Agents in their reasonable judgment, of the same general tenor as the
certificate referred to in said Section 7(f) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such certificate;
(d) Each time that the Registration Statement or the Prospectus shall be
amended or supplemented, or a document shall be filed under the Exchange
Act which is incorporated by reference in the Registration Statement or
Prospectus (except (i) supplements or amendments relating solely to the
sale of the Securities, (ii) supplements or amendments relating solely to a
change in the interest rates or maturities of the Securities or a change in
the principal amount of Securities remaining to be sold or similar changes
and (iii) Forms 8-K that are filed solely for the purpose of filing
exhibits pursuant to Item 601 of Regulation S-K) or FPL shall sell
Securities to the Agents pursuant to a Terms Agreement (if required by the
Agents with respect to a particular Terms Agreement), FPL shall furnish or
cause to be furnished forthwith to the Agents written opinions of Steel
Xxxxxx & Xxxxx LLP and Xxxxxx Xxxx & Priest LLP, dated the date of delivery
thereof and in form and substance satisfactory to Counsel for the Agents,
of the same tenor as the opinions required by clauses (v), (vii) and (ix)
of Section 7(b) hereof but modified to relate to the Registration Statement
and the Prospectus as amended and supplemented to the date of such opinions
or, in lieu of such opinions, such counsel may furnish to the Agents a
letter to the effect that the Agents may rely on such last opinions to the
same extent as though they were dated the date of such letter authorizing
reliance (except that statements in such last opinions shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such letters authorizing reliance);
(e) Each time that the Registration Statement or the Prospectus shall be
amended or supplemented to set forth financial information included in or
derived from FPL's financial statements, or any document containing
financial information so included or derived shall be filed under the
Exchange Act and incorporated by reference in the Prospectus or FPL shall
sell Securities to the Agents pursuant to a Terms Agreement (if required by
the Agents with respect to a particular Terms Agreement), FPL shall cause
Deloitte & Touche LLP to furnish to the Agents a letter, dated five
business days after the date of filing such amendment or supplement or
document with the Commission, in form and substance satisfactory to the
Agents in their reasonable judgment, of the same general tenor as the
letter referred to in Section 7(e) hereof but with appropriate
modifications to relate to the Registration Statement and the Prospectus as
amended and supplemented to the date of such letter and as may be necessary
to reflect changes in the financial information included or incorporated by
reference in the Registration Statement and the Prospectus as then amended
or supplemented since the date of the last previous such letter furnished
to the Agents; provided, however, that no letter need be furnished (except
that if the Agents reasonably request, a letter addressing solely the
11
matters described in Section 7(e)(iv) hereof shall be furnished) with
respect to year-end audited financial statements of FPL if copies of such
audited financial statements are delivered to the Agents; and
(f) Notwithstanding the foregoing, it is agreed that if, at any time and
from time to time during the term of this agreement, FPL should deliver to
the Agents notification of its decision to suspend any sale of Securities
hereunder, then during the period of any such suspension or suspensions FPL
shall be relieved of its obligation to provide to the Agents the
certificate, opinions and letter required pursuant to Sections 8(c), 8(d)
and 8(e) hereof. However, whenever such a suspension is lifted, FPL shall
be required to deliver to the Agents, prior to the resumption of any sale
of Securities hereunder, the most recent certificate, opinions and letter
which would have been required except for the suspension.
9. INDEMNIFICATION.
(a) FPL agrees to indemnify and hold harmless each Agent, each officer and
director of each Agent and each person who controls such Agent 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 Agent, 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
(if used prior to the Effective Date of the Registration Statement),
including all Incorporated Documents, or in the Registration Statement or
the Prospectus, or in the Registration Statement or Prospectus, as amended
or supplemented (if any amendments or supplements thereto shall have been
furnished), 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 such Agent, expressly 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 on Form T-1 of the Mortgage Trustee; and provided, further,
that the indemnity agreement contained in this subsection (a) of Section 9
in respect of any preliminary prospectus (and for purposes of clause (ii)
below, the Prospectus) shall not inure to the benefit of such Agent (or of
any officer or director or person controlling such Agent) on account of any
such losses, claims, damages, liabilities, expenses or actions arising from
the sale of the Securities to any person if such Agent 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
Securities 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 Securities 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 of such Securities. 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 Agent, officer, director or any such controlling person, and
shall survive delivery of the Securities. Each Agent agrees promptly to
notify FPL, and each other Agent, of the commencement of any litigation or
proceedings against it or any such officer, director or controlling person
in connection with the issuance and sale of the Securities.
12
(b) Each Agent, 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 the Registration Statement or Prospectus as
amended or supplemented (if any amendments or supplements thereto shall
have been furnished) 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 Agent, expressly 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 each
Agent 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 controlling
person, and shall survive the delivery of the Securities. FPL agrees
promptly to notify each Agent 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
Securities.
(c) FPL and each of the Agents 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 such 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 the 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 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 Agents 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
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
13
as shall be appropriate to reflect (i) the relative fault of FPL on the one
hand and the Agents 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 Agents on the other hand from the offering of the Securities
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 Agents 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 Agents 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 Agent shall be required to contribute in excess of the
amount equal to the excess of (i) the total price at which the Securities
__________ by it were offered to the public, over (ii) the amount of any
damages which such Agent 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 Agent to contribute pursuant to this
subsection (d) are several and not joint and shall be in the same
proportion as such Agent's obligation to _________ the Securities with
respect to which contribution is sought is to the total principal amount of
the Securities.]
10. SURVIVAL. The indemnity agreements contained in Section 9 hereof and
the representations, warranties and other statements of FPL and the Agents set
forth in this agreement or any Terms Agreement or made by FPL and the Agents
pursuant to this agreement or any Terms Agreement shall remain in full force and
effect, regardless of (i) any termination of this agreement, (ii) any
investigation made by or on behalf of the Agents or any of their controlling
persons or by or on behalf of FPL or any of its officers, directors or
controlling persons or (iii) acceptance of delivery of and payment for
Securities sold hereunder.
11. TERMINATION.
(a) This agreement may be terminated at any time by any party hereto upon
the giving of written notice of such termination to the other parties
hereto effective at the close of business on the date such notice is
received. In the event of any such termination, no party shall have any
liability to any other party hereto, except as provided in Section 1(e),
Section 5(b), Section 6(b), (i), (j) and (k) and Section 9 hereof and
except that, if at the time of any such termination the Agents shall have
previously confirmed sales of Securities for which delivery and payment has
not yet been made, FPL shall remain obligated in respect of such sales as
provided in Section 4 hereof and shall continue to have the obligations
provided in Section 8 hereof until delivery of and payment for all
Securities so sold have been completed.
(b) The Agents may terminate a Terms Agreement by delivering written notice
thereof to FPL, at any time after the date of the Terms Agreement and prior
to the Settlement Date specified therein if:
(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 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 the Terms 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
(i) or (ii) above on the financial markets of the United States shall
14
be such as to make it impracticable for the Agent to enforce contracts
for the sale of Securities; or
(ii) there shall have been any downgrading or any notice of any
intended or potential downgrading in the ratings accorded to the
Securities or any securities of FPL which are of the same class as the
Securities by either [Xxxxx'x Investors Service, Inc. ("Xxxxx'x")] 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 Securities or any
securities of FPL which are of the same class as the Securities, the
effect of any such event specified in (i) or (ii) above which, in the
reasonable judgment of the Agents, makes it impracticable or
inadvisable market the Securities.
A Terms Agreement may also be terminated at any time prior to the Settlement
Date specified therein if in the judgment of the Agents the subject matter of
any amendment or supplement to the Registration Statement or the Prospectus
prepared and furnished by FPL after the date of the Terms Agreement 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 Securities to be purchased under such Terms Agreement. Any termination of
a Terms Agreement shall be without liability of any party to any other party
except as otherwise provided in Section 6(i), the first sentence of Section
6(j), Section 9 and Section 10 hereof.
12. PURCHASES AS PRINCIPAL. Unless FPL and the Agents shall otherwise
agree, each sale of Securities to the Agents as principal for resale to others
shall be made in accordance with the terms of this agreement and any separate
agreement specified by FPL which will provide for the sale of such Securities
to, and the purchase and reoffering thereof by, the Agents. Each such separate
agreement, herein referred to as a "Terms Agreement," whether oral (it being
understood that such oral agreement shall be confirmed in writing prior to the
Settlement Date) or in writing shall be with respect to such information (as
applicable) as is specified in Exhibit C hereto. Any such writing may take the
form of an exchange of any standard form of written telecommunication between
the Agents and FPL. The Agents' commitment to purchase Securities pursuant to
any Terms Agreement shall be deemed to have been made on the basis of the
representations and warranties of FPL herein contained and shall be subject to
the terms and conditions herein set forth. Such Terms Agreement may also specify
any requirements for the opinions of counsel, accountants' letters and officers'
certificates pursuant to Section 8 hereof.
13. MISCELLANEOUS. 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 Agents 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 Securities from the Agents.
14. NOTICES. Except as otherwise specifically provided herein or in the
Procedures, all communications hereunder shall be in writing, or by telegram
and, if to the Agents, shall be mailed or delivered to:
or, if to FPL, shall be mailed or delivered to it at 000 Xxxxxxxx Xxxxxxxxx,
Xxxx Xxxxx, Xxxxxxx 00000, Attention: Treasurer.
15
15. COUNTERPARTS. This agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which when
taken together shall constitute one and the same agreement.
16
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
-----------------------------------
Accepted and delivered as of
the date first written above
------------------------------------
------------------------------------
------------------------------------
17
EXHIBIT A
FLORIDA POWER & LIGHT COMPANY
SECURED MEDIUM-TERM NOTES, SERIES ___
ADMINISTRATIVE PROCEDURES FOR FIXED AND VARIABLE RATE
SECURITIES ISSUED IN BOOK-ENTRY FORM
Secured Medium-Term Notes, Series ___, due from nine months to thirty years
from date of issue (the "Securities") are to be offered on a continuing basis by
Florida Power & Light Company ("FPL"). ____________________ as agents (each an
"Agent" and collectively, the "Agents"), have agreed to use their reasonable
best efforts to solicit offers to purchase the Securities. The Securities are
being sold pursuant to a Distribution Agreement between FPL and the Agents dated
_________, 200_ (the "Distribution Agreement") to which these administrative
procedures are attached as an exhibit. The Securities will be issued under FPL's
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 supplemented, pursuant to the ______________ Supplemental
Indenture dated as of _________, 200_ (the "Mortgage"). The Securities will
either bear interest at a fixed rate (the "Fixed Rate Securities") or at a
variable rate (the "Variable Rate Securities"). Deutsche Bank Trust Company
Americas will act as the paying agent (the "Paying Agent") for the payment of
principal of and premium, if any, and interest on the Securities and will
perform, as the Paying Agent, unless otherwise specified, the other duties
specified herein. Terms defined in the Distribution Agreement shall have the
same meaning when used in this exhibit.
Each Security will be represented by a Global Security (as defined below)
delivered to Deutsche Bank Trust Company Americas, as agent for The Depository
Trust Company ("DTC") and recorded in the book-entry system maintained by DTC.
An owner of a Security represented by a Global Security will not be entitled to
receive a certificate representing such a Security.
Administrative procedures and specific terms of the offering are explained
below. Administrative responsibilities and record-keeping functions will be
performed by FPL's Treasurer or its Assistant Treasurer.
In connection with the qualification of the Securities for eligibility in
the book-entry system maintained by DTC, Deutsche Bank Trust Company Americas
will perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter of
Representations from FPL and Deutsche Bank Trust Company Americas (formerly
known as Bankers Trust Company) to DTC dated as of June 19, 1992, and a
Medium-Term Note Certificate Agreement between Deutsche Bank Trust Company
Americas (formerly known as Bankers Trust Company) and DTC dated as of October
21, 1988, and its obligations as a participant in DTC, including DTC's Same-Day
Funds Settlement System ("SDFS").
PRICE TO PUBLIC
---------------
Each Security will be issued at 100% of principal amount, unless otherwise
determined by FPL and specified in a supplement to the Prospectus ("Pricing
Supplement").
ISSUANCE
--------
On any date of Settlement (as defined under "Settlement" below) for all
Fixed Rate Securities, FPL will issue one or more global securities in fully
registered form without coupons (a "Global Security") representing up to
$__________________ principal amount of all such Fixed Rate Securities that have
the same Issue Price, Issue Date, Maturity Date, Interest Rate, Interest Payment
Dates and terms for redemption, if any (in each case, and for all purposes of
these administrative procedures, as defined in the Prospectus (as defined in
Section 3(a) of the Distribution Agreement)) (collectively the "Fixed Rate
Terms"). On any date of Settlement for all Variable Rate Securities, FPL will
issue one or more Global Securities representing up to $______________ principal
amount of all such Variable Rate Securities that have the same Issue Price,
Issue Date, Maturity Date, base rate upon which interest may be determined (a
"Base Rate"), which may be the Commercial Paper Rate, the Treasury Rate, LIBOR,
the Cost of Funds Rate, the CD Rate, the Federal Funds Rate, the Prime Rate or
any other rate set forth by FPL, Initial Interest Rate, Index Maturity, Spread
or Alternate Rate Event Spread, if any, minimum interest rate, if any, maximum
interest rate, if any, Interest Payment Dates and terms for redemption, if any
(collectively, the "Variable Rate Terms"). Each Global Security will be dated
and issued as of the date of its authentication by the Mortgage Trustee. No
Global Security will represent any securities in certificated form.
MATURITIES
----------
Each Security will mature on a date mutually agreed upon by the purchaser
and FPL, such date being at least nine months but not more than thirty years
from the date of issuance.
DENOMINATIONS
-------------
The Securities will be initially issued in denominations of $100,000 and
any larger denomination which is an integral multiple of $1,000. Global
Securities will be denominated in principal amounts not in excess of
$[500,000,000]. If one or more Securities having an aggregate principal amount
in excess of $[500,000,000] would, but for the preceding sentence, be
represented by a single Global Security, then one Global Security will be issued
to represent each $[500,000,000] principal amount of such Security or Securities
and an additional Global Security will be issued to represent any remaining
principal amount of such Security or Securities. In such a case, each of the
Global Securities representing such Security or Securities shall be assigned the
same CUSIP number.
IDENTIFICATION NUMBERS
----------------------
FPL has arranged with the CUSIP Service Bureau of Standard & Poor's
Corporation, a division of the XxXxxx- Xxxx Companies, Inc. (the "CUSIP Service
Bureau") for the reservation of one series of CUSIP numbers (including tranche
numbers), which series consists of approximately 900 CUSIP numbers and relates
to Global Securities representing the Securities. FPL has obtained from the
CUSIP Service Bureau a written list of such series of reserved CUSIP numbers and
has delivered to Deutsche Bank Trust Company Americas and to DTC's Underwriting
Department a written list of such 900 CUSIP numbers. Deutsche Bank Trust Company
Americas will assign CUSIP numbers to Global Securities as described below under
Settlement Procedure "B". DTC will notify the CUSIP Service Bureau periodically
of the CUSIP numbers that Deutsche Bank Trust Company Americas has assigned to
Global Securities. At any time when fewer than 100 of the reserved CUSIP numbers
of the series remain unassigned to Global Securities, and if it deems necessary,
or Deutsche Bank Trust Company Americas or FPL will reserve additional CUSIP
numbers for assignment to Global Securities representing the Securities. Upon
obtaining such additional CUSIP numbers, Deutsche Bank Trust Company Americas or
FPL shall deliver a list of such additional CUSIP numbers to DTC's Underwriting
Department.
REGISTRATION
------------
Each Global Security will be registered in the name of Cede & Co., as
nominee for DTC, on the bond register maintained under the Mortgage. The
beneficial owner of a Security (or one or more indirect participants in DTC
designated by such owner) will designate one or more participants in DTC (with
respect to such Security, the "Participants") to act as agent or agents for such
owner in connection with the book-entry system maintained by DTC, and DTC will
record in book-entry form, in accordance with instructions provided by such
Participants, a credit balance with respect to such beneficial owner in such
Security in the account of such Participants. The ownership interest of such
beneficial owner in such Security will be recorded through the records of such
Participants or through the separate records of such Participants and one or
more indirect participants in DTC.
A-2
TRANSFERS
---------
Transfers of a Security will be accomplished by book entries made by DTC
and, in turn, by Participants (and in certain cases, one or more indirect
participants in DTC) acting on behalf of beneficial transferees and transferors
of such Security.
CONSOLIDATIONS
--------------
After the first Interest Payment Date on individual issues of the
Securities, Deutsche Bank Trust Company Americas will deliver to DTC's
Reorganization Department, Interactive Data Corporation and the CUSIP Service
Bureau [at least 30 days before the day on which the consolidation is to be
effective, as determined by Deutsche Bank Trust Company Americas (the "Exchange
Date"),] a written notice of consolidation specifying (i) the CUSIP numbers of
two or more outstanding Global Securities that represent Securities having
different original Issue Dates but otherwise the same Fixed Rate Terms or
Variable Rate Terms, as the case may be, and for which interest has been paid to
the same date, (ii) a date, occurring at least thirty days after such written
notice is delivered and at least thirty days before the next Interest Payment
Date for such Securities, on which such Global Securities shall be exchanged for
a single replacement Global Security, (iii) a new CUSIP number to be assigned to
such replacement Global Security and (iv) that the CUSIP numbers of the Global
Securities to be exchanged will no longer be valid. Upon receipt of such a
notice, DTC will send to its Participants (including Deutsche Bank Trust Company
Americas) a written reorganization notice to the effect that such exchange will
occur on such date. On the specified Exchange Date, Deutsche Bank Trust Company
Americas will exchange such Global Securities for a single Global Security
bearing the new CUSIP number, the original Issue Dates, together with the
respective principal amounts to which they relate, for all exchanged Global
Securities and the CUSIP numbers of the exchanged Global Securities will, in
accordance with CUSIP Service Bureau procedures, be canceled and not immediately
reassigned. Notwithstanding the foregoing, if the Global Securities to be
exchanged exceed $[500,000,000] in aggregate principal amount, one Global
Security will be authenticated and issued to represent each $[500,000,000] of
principal amount of the exchanged Global Security and an additional Global
Security will be authenticated and issued to represent any remaining principal
amount of such Global Securities (see "Denominations" above).
INTEREST
--------
Interest on each Security will accrue from and including the original Issue
Date of, or the last date to which interest has been paid on, the Global
Security representing such Security. Each payment of interest on a Security will
include interest accrued through the day preceding, as the case may be, the
Interest Payment Date (provided, however, that in the case of Variable Rate
Securities which reset daily or weekly, interest payments will include interest
accrued to but excluding the Record Date (as defined below) immediately
preceding the Interest Payment Date), date of redemption or Maturity Date.
Interest payable on the Maturity Date or date of redemption of a Security will
be payable to the person to whom the principal of such Security is payable. DTC
will arrange for each pending deposit message described under Settlement
Procedure "C" below to be transmitted to Standard & Poor's Corporation, which
will use the information in the message to include certain terms of the related
Global Security in the appropriate bond report published by Standard & Poor's
Corporation.
The Record Date with respect to any Interest Payment Date for a Fixed Rate
Security shall be the fifteenth business day preceding such Interest Payment
Date. The Record Date with respect to any Interest Payment Date for a Variable
Rate Security shall be the date 15 calendar days (whether or not a business day)
preceding such Interest Payment Date.
Interest payments will be made on each Interest Payment Date commencing
with the first Interest Payment Date following the original Issue Date;
provided, however, that the first payment of interest on any Global Security
originally issued between a Record Date and an Interest Payment Date will occur
on the Interest Payment Date following the next Record Date.
If an Interest Payment Date with respect to any Variable Rate Security
would otherwise fall on a day that is not a business day with respect to such
Security, such Interest Payment Date will be the following day that is a
A-3
business day with respect to such Security (and no interest shall accrue on such
payment for the period from and after such Interest Payment Date), except that
in the case of a LIBOR Security, if such day falls in the next calendar month,
such Interest Payment Date will be the preceding day that is a business day in
London.
CALCULATION OF INTEREST
-----------------------
In the case of Fixed Rate Securities, interest (including payments for
partial periods) will be calculated on the basis of a 360-day year of twelve
30-day months. Interest does not accrue on the 31st day of any month. Interest
rates on Variable Rate Securities will be determined as set forth in the related
Global Security. Interest will be calculated in the case of (a) Commercial Paper
Rate, Prime Rate, LIBOR, Federal Funds Rate, Cost of Funds Rate, and CD Rate
Securities on the basis of the actual number of days in the interest period
divided by 360; and (b) Treasury Rate Securities, on the basis of the actual
number of days in the interest period divided by the actual number of days in
the year.
INTEREST PAYMENTS
-----------------
Interest on Fixed Rate Securities will be payable semiannually on [January
1 and July 1] and at maturity. Interest will be payable, in the case of the
Variable Rate Securities which reset (a) daily, weekly or monthly (other than
Cost of Funds Rate Securities), on [the third Wednesday of each month or on the
third Wednesday of March, June, September and December of each year], as
specified pursuant to Settlement Procedure "A" below, or, in the case of the
Cost of Funds Rate Securities, all of which reset monthly, on [the first
business day of each month or the first business day of each March, June,
September and December], as specified pursuant to Settlement Procedure "A"
below; (b) quarterly, on [the third Wednesday of March, June, September and
December] of each year; (c) semiannually, on [the third Wednesday] of each of
the two months of each year specified pursuant to Settlement Procedure "A"
below; and (d) annually, on [the third Wednesday] of the month specified
pursuant to Settlement Procedure "A" below and, in each case, at maturity.
With regard to Variable Rate Securities on which the interest rate is reset
daily or weekly, Deutsche Bank Trust Company Americas shall deliver to DTC's
Dividend Department, Standard & Poor's Corporation and Interactive Data
Corporation on each day on which the amount of interest to be paid on the
following Interest Payment Date (including the issue's first Interest Payment
Date) is determined a listing of the CUSIP number assigned to each such issue
along with corresponding specifications of the Record Date, Interest Payment
Date, and dollar amount of interest per $1,000 principal amount of the
Securities to be paid on such Interest Payment Date. For Variable Rate
Securities on which the interest rate is reset monthly, quarterly, semiannually,
or annually, Deutsche Bank Trust Company Americas shall deliver a similar
listing to Standard & Poor's Corporation and Interactive Data Corporation on the
day interest payment amounts are determined.
Promptly after each Record Date for each issue of Fixed Rate Securities,
Deutsche Bank Trust Company Americas will furnish FPL and DTC's Dividend
Department a written notice specifying by CUSIP number the amount of interest to
be paid on each Global Security on the following Interest Payment Date (other
than an Interest Payment Date coinciding with the Maturity Date) and the total
of such amounts. DTC will confirm the amount payable on each Global Security on
such Interest Payment Date by reference to the appropriate bond reports
published by Standard & Poor's Corporation. FPL will pay to Deutsche Bank Trust
Company Americas the total amount of interest due on such Interest Payment Date
(other than on the Maturity Date), and Deutsche Bank Trust Company Americas will
pay such amount to DTC at the times and in the manner set forth under "Manner of
Payment" below. The Participant, indirect participant in DTC or other person
responsible for forwarding payments and materials directly to the beneficial
owner of such Security, will assume responsibility for withholding taxes on
interest paid as required by law.
Deutsche Bank Trust Company Americas will take all action necessary so that
the Interest Payment Dates and the Record Dates with respect thereto, for each
Global Security, together with the amount of interest payable on each of such
Interest Payment Dates, shall be listed in the appropriate daily bond report
published by Standard & Poor's Corporation.
A-4
MATURITY
--------
On or about the first business day of each month, Deutsche Bank Trust
Company Americas will deliver to FPL and DTC a written list of principal,
interest and premium, if any, to be paid on each Global Security maturing either
on the Maturity Date or the date of redemption in the following month. FPL and
DTC will confirm with Deutsche Bank Trust Company Americas the amounts of such
principal, interest and premium, if any, payments with respect to each such
Global Security on or about the fifth business day preceding the Maturity Date
or the date of redemption, as the case may be, of such Global Security. FPL will
pay to Deutsche Bank Trust Company Americas the principal amount of such Global
Security, together with interest and premium, if any, due on such Maturity Date
or date of redemption. Deutsche Bank Trust Company Americas will pay such
amounts to DTC at the times and in the manner set forth below under "Manner of
Payment". Promptly after payment to DTC of the principal, interest and premium,
if any, due at the Maturity Date or the date of redemption of such Global
Security, Deutsche Bank Trust Company Americas will cancel such Global Security
in accordance with the terms of the Mortgage. On the first business day of each
month, Deutsche Bank Trust Company Americas will deliver to FPL a written
statement indicating the total principal amount of outstanding Global Securities
as of the immediately preceding business day.
MANNER OF PAYMENT
-----------------
The total amount of any principal, interest and premium, if any, due on
Global Securities on any Interest Payment Date or on the Maturity Date or the
date of redemption shall be paid by FPL to Deutsche Bank Trust Company Americas
in immediately available funds for use by Deutsche Bank Trust Company Americas
on such date. FPL will make such payment on such Global Securities by wire
transfer to Deutsche Bank Trust Company Americas or by Deutsche Bank Trust
Company Americas' debiting the account of FPL maintained with Deutsche Bank
Trust Company Americas. FPL will confirm such instructions in writing to
Deutsche Bank Trust Company Americas. Prior to 10:00 a.m. (New York City time)
on each Maturity Date or date of redemption or as soon as possible thereafter,
Deutsche Bank Trust Company Americas will pay by separate wire transfer (using
Fedwire message entry instructions in a form previously agreed to with DTC) to
an account at the Federal Reserve Bank of New York previously agreed to with
DTC, in funds available for immediate use by DTC, each payment of principal
(together with interest thereon) and premium, if any, due on Global Securities
on any Maturity Date or date of redemption. On each Interest Payment Date,
interest payments shall be made to DTC in same day funds in accordance with
existing arrangements between Deutsche Bank Trust Company Americas and DTC.
Thereafter, on each such date, DTC will pay, in accordance with its SDFS
operating procedures then in effect, such amounts in funds available for
immediate use to the respective Participants in whose names the Securities
represented by such Global Securities are recorded in the book-entry system
maintained by DTC. Neither FPL nor Deutsche Bank Trust Company Americas shall
have any direct responsibility or liability for the payment by DTC to such
Participants of the principal of, interest on and premium, if any, on the
Securities.
PROCEDURE FOR POSTING
---------------------
FPL and the Agents will discuss from time to time the rates of interest per
annum to be borne by, the maturity, and other terms of, Securities that may be
sold as a result of the solicitation of offers to purchase by the Agents.
ACCEPTANCE AND REJECTION OF OFFERS; AUTHORIZED PERSONS
------------------------------------------------------
Oral instructions regarding sales of Securities will be given for FPL by
_______________, or such other persons as may be designated from time to time.
Oral instructions to ____________ will be accepted by ________________, or such
other persons as may be designated from time to time. Oral instructions to
__________ will be accepted by ___________________, or such other persons as may
be designated from time to time. Oral instructions to _______________ will be
accepted by ___________________, or such other persons as may be designated from
time to time. Oral instructions to __________________ will be accepted by
__________________, or such other persons as may be designated from time to
time.
FPL shall have the sole right to accept offers to purchase Securities from
FPL and may reject any such offer in whole or in part. Each Agent shall promptly
A-5
communicate to FPL, orally or in writing, each reasonable offer to purchase
Securities from FPL received by it other than those rejected by such Agent. Each
Agent shall have the right, in its discretion reasonably exercised without
advising FPL, to reject any offers in whole or in part.
SETTLEMENT
----------
The receipt of immediately available funds by FPL in payment for a Security
(less the applicable commission) and the authentication and issuance of the
Global Security representing such Security shall, with respect to such Security,
constitute "Settlement." All offers accepted by FPL will be settled three
business days from the date of acceptance by FPL pursuant to the timetable for
Settlement set forth below unless FPL and the purchaser agree to Settlement on
another day that shall be no earlier than the next business day.
SETTLEMENT PROCEDURES
---------------------
In the event of a purchase of Securities by an Agent, as principal,
appropriate settlement details will be set forth in a Terms Agreement to be
entered into between such Agent and FPL.
Settlement procedures with regard to each Security sold through each Agent
shall be as follows:
X. Xxxx Agent will advise FPL by telephone (confirmed in writing, which may
include telex or facsimile) or by telex or facsimile, of the following sale
information:
1. Exact name of the purchaser.
2. Principal amount of the Security.
3. Issue price of the Security.
4. Issue date of the Security.
5. Settlement date.
6. Maturity date.
7. Interest rate.
(a) Fixed Rate Securities:
i) interest rate
(b) Variable Rate Securities:
i) base rate
ii) initial interest rate
iii) spread or alternate rate event spread, if any
iv) interest reset dates
v) interest reset period
vi) interest payment dates
vii) interest payment period
A-6
viii) interest determination dates
ix) index maturity
x) maximum and minimum interest rates, if any
xi) calculation date
8. Redemption dates, if any, including any initial redemption date,
par date and limitation date.
9. Redemption premium, if any, including any initial percentage and
reduction percentage.
10. Agent's commission (to be paid in the form of a discount from the
proceeds remitted to FPL upon Settlement) and its certification that the
purchasers of the Security have been solicited solely by such Agent.
11. Net proceeds to FPL.
B. Deutsche Bank Trust Company Americas will assign a CUSIP number to the
Global Security representing such Security and FPL will advise Deutsche Bank
Trust Company Americas by telephone or by telex or facsimile of the information
set forth in Settlement Procedure "A" above to be confirmed in a written request
for the authentication and delivery of such Global Security, such CUSIP number
and the name of such Agent. Deutsche Bank Trust Company Americas will also
notify the Agent of such CUSIP number by telephone as soon as practicable. Each
such communication by FPL shall constitute a representation and warranty by FPL
to Deutsche Bank Trust Company Americas and each Agent that (i) such Security is
then, and at the time of issuance and sale thereof will be, duly authorized for
issuance and sale by FPL, (ii) the Global Security representing such Security
will conform with the terms of the Mortgage pursuant to which such Security and
Global Security are issued and (iii) upon authentication and delivery of such
Global Security, the aggregate principal amount of all Securities initially
offered and issued under the Mortgage will not exceed $__________________
(except for Global Securities or Securities represented by and authenticated and
delivered in exchange for or in lieu of Securities in accordance with the
Mortgage).
C. Deutsche Bank Trust Company Americas will enter a pending deposit
message through DTC's Participant Terminal System, providing the following
settlement information to DTC, and such information will be routed to Standard &
Poor's Corporation through DTC:
1. The information set forth in Settlement Procedure "A."
2. Identification as a Fixed Rate Security or a Variable Rate
Security.
3. Initial Interest Payment Date for such Security, number of days by
which such date succeeds the related Record Date (or, in the case of Variable
Rate Securities which reset daily or weekly, the date five calendar days
preceding the Interest Payment Date) and amount of interest payable on such
Interest Payment Date.
4. CUSIP number of the Global Security representing such Security.
5. Whether such Global Security will represent any other Security (to
the extent known at such time).
6. Interest payment period.
D. Deutsche Bank Trust Company Americas will complete and authenticate the
Global Security representing such Security.
E. FPL will cause the appropriate amount of intangible tax and document
excise tax to be paid in accordance with applicable [Florida law and Georgia
law].
A-7
X. Xxxxx Xxxxxx & Xxxxx LLP will (by telecopy followed by an original copy)
provide Deutsche Bank Trust Company Americas with an opinion regarding
authentication.
G. DTC will credit such Security to Deutsche Bank Trust Company Americas'
participant account at DTC.
H. Deutsche Bank Trust Company Americas will enter an SDFS deliver order
through DTC's Participant Terminal System instructing DTC to (i) debit such
Security to Deutsche Bank Trust Company Americas' participant account and credit
such Security to such Agent's participant account and (ii) debit such Agent's
settlement account and credit Deutsche Bank Trust Company Americas' settlement
account for an amount equal to the price of such Security less such Agent's
commission. The entry of such a deliver order shall constitute a representation
and warranty by Deutsche Bank Trust Company Americas to DTC that (a) the Global
Security representing such Security has been issued and authenticated and (b)
Deutsche Bank Trust Company Americas is holding such Global Security pursuant to
the Secured Medium-Term Note Certificate Agreement between Deutsche Bank Trust
Company Americas and DTC.
I. Such Agent will enter an SDFS deliver order through DTC's Participant
Terminal System instructing DTC (i) to debit such Security to such Agent's
participant account and credit such Security to the participant accounts of the
Participants with respect to such Security and (ii) to debit the settlement
accounts of such Participants and credit the settlement account of such Agent
for an amount equal to the price of such Security.
J. Deutsche Bank Trust Company Americas will transfer to the account of FPL
maintained at Deutsche Bank Trust Company Americas of [New York, New York], in
immediately available funds in the amount transferred to Deutsche Bank Trust
Company Americas in accordance with Settlement Procedure "H" upon receipt of
such funds.
X. Xxxx Agent will confirm the purchase of such Security to the purchaser
either by transmitting to the Participants with respect to such Security a
confirmation order or orders through DTC's institutional delivery system or by
mailing a written confirmation to such purchaser. Such Agent will deliver to the
purchaser a copy of the most recent Prospectus applicable to the Security with
or prior to any written offer of Securities and the confirmation and payment by
the purchaser for the Security.
L. Transfers of funds in accordance with SDFS deliver orders described in
Settlement Procedures "H" and "I" will be settled in accordance with SDFS
operating procedures in effect on the Settlement Date.
M. Deutsche Bank Trust Company Americas will send a copy of the Global
Security by first-class mail to FPL together with a statement setting forth the
principal amount of Securities outstanding as of the related Settlement Date
after giving effect to such transaction and all other offers to purchase
Securities of which FPL has advised Deutsche Bank Trust Company Americas but
which have not yet been settled.
SETTLEMENT PROCEDURES TIMETABLE
-------------------------------
For offers accepted by FPL, Settlement procedures "A" through "L" set forth
above shall be completed to the extent possible at or before the respective
times set forth below:
-------------------------------------------------------------------------------
Settlement Procedure Time (New York)
-------------------------------------------------------------------------------
A (1-11) 11 a.m. on the sale date
-------------------------------------------------------------------------------
B 12 Noon on the sale date
-------------------------------------------------------------------------------
C 2 p.m. on the sale date
-------------------------------------------------------------------------------
D-F 9 a.m. on the Settlement Date
-------------------------------------------------------------------------------
G 10 a.m. on the Settlement Date
-------------------------------------------------------------------------------
H-I 2 p.m. on the Settlement Date
-------------------------------------------------------------------------------
J-K 4:45 p.m. on the Settlement Date
-------------------------------------------------------------------------------
L 3:30 p.m. on the Settlement Date
-------------------------------------------------------------------------------
A-8
If a sale is to be settled more than one business day after the sale date,
Settlement Procedures "A", "B" and "C" shall be completed as soon as practicable
but no later than 11 a.m., 12 Noon and 2:00 p.m., as the case may be, on the
first business day after the sale date. In connection with a sale which is to be
settled more than one business day after the sale date, if the initial interest
rate for a Variable Rate Note is not known at the time that Settlement Procedure
"A" is completed, Settlement Procedures "B" and "C" shall be completed as soon
as such rates have been determined, but no later than 12 Noon and 2:00 p.m., as
the case may be, on the second business day before the Settlement Date.
Settlement Procedures "L" and "J" are subject to extension in accordance with
any extension of Fedwire closing deadlines and in other events specified in the
SDFS operating procedures in effect on the Settlement Date.
If Settlement of a Security is rescheduled or canceled, FPL will instruct
Deutsche Bank Trust Company Americas to deliver to DTC a cancellation message to
such effect by no later than 12 Noon on the business day immediately preceding
the scheduled Settlement Date and Deutsche Bank Trust Company Americas will
enter such order by 2:00 p.m. through DTC's Participation Terminal System.
PRICING SUPPLEMENT
------------------
If FPL accepts an offer to purchase a Security, FPL will prepare a Pricing
Supplement reflecting the terms of such Security and will arrange to have ten
copies of the Pricing Supplement filed with the Commission not later than the
close of business on the second Business Day following such acceptance of an
offer to purchase such Security and will supply at least ten copies of the
Pricing Supplement to the Agent. The Agent will cause the Prospectus and Pricing
Supplement to be delivered to the purchaser of the Security in accordance with
the procedures set forth in "Delivery of Prospectus" below.
FAILURE TO SETTLE
-----------------
If Deutsche Bank Trust Company Americas or the Agent fails to enter an SDFS
deliver order with respect to a Security pursuant to Settlement Procedure "H" or
"I", Deutsche Bank Trust Company Americas may deliver to DTC, through DTC's
Participant Terminal System, as soon as practicable, a withdrawal message
instructing DTC to debit such Security to Deutsche Bank Trust Company Americas'
participant account, provided that Deutsche Bank Trust Company Americas'
participant account contains a principal amount of the Global Security
representing such Security that is at least equal to the principal amount to be
debited. If a withdrawal message is processed with respect to all the Securities
represented by a Global Security, Deutsche Bank Trust Company Americas will mark
such Global Security "canceled", make appropriate entries in Deutsche Bank Trust
Company Americas' records and send such canceled Global Security to FPL. The
CUSIP number assigned to such Global Security shall, in accordance with CUSIP
Service Bureau procedures, be canceled and not immediately reassigned. If a
withdrawal message is processed with respect to one or more, but not all, of the
Securities represented by a Global Security, Deutsche Bank Trust Company
Americas will exchange such Global Security for another Global Security, which
shall represent the Securities previously represented by the surrendered Global
Security with respect to which a withdrawal message has not been processed and
shall bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Security is not timely paid to the
Participants with respect to such Security by the beneficial purchaser thereof
(or a person, including an indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, the Agent for such Security may
enter SDFS deliver orders through DTC's Participant Terminal System reversing
the orders entered pursuant to Settlement Procedures "I" and "H", respectively.
The Agent will notify ______________ of FPL by telephone, confirmed in writing,
of such failure. Thereafter, Deutsche Bank Trust Company Americas will deliver
the withdrawal message and take the related actions described in the preceding
paragraph.
Notwithstanding the foregoing, upon any failure to settle with respect to a
Security, DTC may take any actions in accordance with its SDFS operating
procedures then in effect. In the event of a failure to settle with respect to
one or more, but not all, of the Securities to have been represented by a Global
Security, the Mortgage Trustee will provide, in accordance with Settlement
Procedure "D", for the authentication and issuance of a Global Security
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representing the other Securities to have been represented by such Global
Security and will make appropriate entries in its records.
PROCEDURE FOR RATE CHANGES
--------------------------
When a decision has been reached to change interest rates on or other
variable terms with respect to any Securities being sold by FPL, FPL will
promptly advise the Agents and the Agents will forthwith suspend solicitation of
offers to purchase such Securities. The Agents will telephone FPL with
recommendations as to the changed interest rates or other variable terms. At
such time as FPL has advised each of the Agents of the new interest rates on or
other variable terms with respect to the Securities, the Agents may resume
solicitation of offers to purchase such Securities. Until such time only
"indications of interest" may be recorded.
SUSPENSION OF SOLICITATION; AMENDMENT OR SUPPLEMENT
---------------------------------------------------
If, during any period in which, in the opinion of Counsel for the Agents, a
prospectus relating to the Securities is required to be delivered under the
Securities Act, any event occurs as a result of which the Prospectus would
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Securities Act, FPL will notify the
Agents promptly to suspend solicitation of purchases of the Securities and each
Agent shall suspend its solicitations of purchases of Securities; and if FPL
shall decide to amend or supplement the Registration Statement or the
Prospectus, it will promptly advise the Agents by telephone (with confirmation
in writing) and will promptly prepare and file with the Commission an amendment
or supplement which will correct such statement or omission or an amendment
which will effect such compliance. Upon the Agents' receipt of such amendment or
supplement and advice from FPL that solicitations may be resumed, the Agents
will resume solicitations of purchases of the Securities.
In addition, FPL may instruct the Agents to suspend solicitation of offers
to purchase at any time. Upon receipt of such instructions the Agents will
forthwith suspend solicitation of offers to purchase from FPL until such time as
FPL has advised them that solicitation of offers to purchase may be resumed. If
FPL decides to amend or supplement the Registration Statement or the Prospectus
relating to the Securities (other than to change interest rates, maturity dates
and/or redemption terms), it will promptly advise the Agents and Deutsche Bank
Trust Company Americas and will furnish the Agents and Deutsche Bank Trust
Company Americas copies of the proposed amendment or supplement.
In the event that at the time the Agents, at the direction of FPL, suspend
solicitation of offers to purchase from FPL there shall be any orders
outstanding which have been accepted but which have not been settled, FPL will
promptly advise the Agents and Deutsche Bank Trust Company Americas whether such
orders may be settled and whether copies of the Prospectus as theretofore
amended and/or supplemented as in effect at the time of the suspension may be
delivered in connection with the settlement of such orders. FPL will have the
sole responsibility for such decision and for any arrangement which may be made
in the event that FPL determines that such orders may not be settled or that
copies of such Prospectus may not be so delivered.
DELIVERY OF PROSPECTUS
----------------------
Each Agent will provide a copy of the relevant Prospectus, appropriately
amended or supplemented, which must accompany or precede each written offer of a
Security by such Agent, each written confirmation of a sale sent to a purchaser
or his agent by such Agent and payment for each Security by a purchaser.
AUTHENTICITY OF SIGNATURES
--------------------------
FPL will cause Deutsche Bank Trust Company Americas to furnish the Agents
from time to time with the specimen signatures of each of Deutsche Bank Trust
Company Americas' officers, employees and agents who have been authorized by
Deutsche Bank Trust Company Americas to authenticate Securities, but the Agents
will have no obligation or liability to FPL or Deutsche Bank Trust Company
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Americas in respect of the authenticity of the signature of any officer,
employee or agent of FPL or Deutsche Bank Trust Company Americas on any
Security.
ADVERTISING COSTS
-----------------
FPL will determine with the Agents the amount and nature of advertising
that may be appropriate in offering the Securities. Advertising expenses in
connection with solicitation of offers to purchase Securities from FPL will be
paid by FPL.
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EXHIBIT B
FPL agrees to pay each Agent a commission in the range of the following
percentages of the aggregate principal amount of Securities sold to purchasers
solicited by such Agent or, in the event the Securities are being sold at a
discount, the issue price thereof. The actual commission to be paid by FPL to
each Agent will be set forth in separate agreements between FPL and each of the
Agents.
Commission Rate Range
(as a percentage of aggregate principal amount of
Securities sold or the issue price, as the case may be)
-------------------------------------------------------
Term
9 months to less than 12 months
12 months to less than 18 months
18 months to less than 24 months
2 years to less than 3 years
3 years to less than 4 years
4 years to less than 5 years
5 years to less than 6 years
6 years to less than 7 years
7 years to less than 8 years
8 years to less than 9 years
9 years to less than 10 years
10 years to less than 15 years
15 years to less than 20 years
20 years to 30 years
EXHIBIT C
TERMS AGREEMENT
____________, 20__
Florida Power & Light Company
000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Treasurer
The undersigned agrees to purchase $________ principal amount of the Securities
of Florida Power & Light Company pursuant to the terms and conditions set forth
in the Distribution Agreement dated ________, ___ (the "Distribution Agreement")
and in the Schedule attached hereto.
[Indicate whether the officer's certificate, legal opinions and/or the
accountant's letter described in Sections 8(c), 8(d) and 8(e), respectively,
will or will not be required.]
[Additional terms]
This agreement shall be governed by and construed in accordance with the laws of
New York.
By
---------------------------------
Accepted: , 20
Florida Power & Light Company
By
----------------------------------
SCHEDULE 1 TO EXHIBIT C
Registration Statement:
No. 333-__________
Mortgage:
Mortgage and Deed of Trust dated as of January 1, 1944, between FPL and Deutsche
Bank Trust Company Americas (formerly known as Bankers Trust Company), as
Trustee, and The Florida National Bank of Jacksonville (now resigned), as
supplemented.
Aggregate Principal Amount:
Price to Public:
Purchase Price by _________________:
___% of the principal amount of the purchased Securities [, plus accrued
interest from _______________ to ______________.]
Purchase Date and Time:
Settlement Date:
Method of and Specified Funds for
Payment of Purchase Price:
Closing Location:
Redemption Provisions:
Maturity:
If fixed rate securities
Interest Rate: ( %)
Interest Payment Date(s):
If variable rate securities
Base Rate:
Initial Interest Rate:
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Interest Determination Dates:
Interest Reset Dates
Interest Reset Period:
Interest Payment Dates:
Index Maturity:
Interest Payment Period:
Maximum Interest Rate:
Minimum Interest Rate:
Calculation Date:
Spread or Alternate Rate Event Spread:
Spread Multiplier:
Syndicate Provisions:
(Set forth any provisions relating to underwriters' default and step-up of
amounts to be purchased by underwriters acting with _________ or _________, as
the case may be).
Additional terms:
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