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EXHIBIT 1(a)
FLORIDA POWER CORPORATION
First Mortgage Bonds
UNDERWRITING AGREEMENT
___________, ____
To the Representative named in Schedule I hereto
of the Underwriters named in Schedule II hereto
Dear Sirs:
The undersigned Florida Power Corporation (the "Company") hereby
confirms its agreement with each of the several Underwriters hereinafter named
as follows:
1. Underwriters and Representative. The term "Underwriters" as
used herein shall be deemed to mean the firm or corporation or the several firms
or corporations named in Schedule II hereto and any underwriter substituted as
provided in paragraph 6, and the term "Underwriter" shall be deemed to mean one
of such Underwriters. If the firm or firms listed in Schedule I hereto (the
"Representative") are the same as the firm or firms listed in Schedule II
hereto, then the terms "Underwriters" and "Representative," as used herein,
shall each be deemed to refer to such firm or firms. The Representative
represents that it has been authorized by the Underwriters to execute this
Agreement on their behalf and to act for them in the manner herein provided. All
obligations of the Underwriters hereunder are several and not joint. If more
than one firm is named in Schedule I hereto, any action under or in respect of
this Agreement may be taken by such firms jointly as the Representative or by
one of the firms acting on behalf of the Representative, and such action will be
binding upon all the Underwriters.
2. Description of Securities. The Company proposes to issue and
sell its First Mortgage Bonds of the designation, with the terms and in the
amount specified in Schedule I hereto (the "Securities"), under its Indenture,
dated as of January 1, 1944, with First Chicago Trust Company of New York, as
successor Trustee, as supplemented and as it will be further supplemented by a
supplemental indenture relating to the Securities (the "Supplemental
Indenture"), in substantially the form heretofore delivered to the
Representative, said Indenture as supplemented and to be supplemented by the
Supplemental Indenture being hereinafter referred to as the "Mortgage."
3. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
(a) The Company has filed with the Securities and
Exchange Commission (the "Commission") a Registration Statement on Form
S-3 (No. 333-______) (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), for the
registration of up to an aggregate of $_____________ principal amount
of the Company's First
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Mortgage Bonds and Debt Securities (collectively, the "Registered
Securities") in unallocated amounts, as each is defined in the
Registration Statement. The Registration Statement has been declared
effective by the Commission, and the Mortgage has been qualified under
the Trust Indenture Act of 1939, as amended (the "1939 Act"). As of the
date hereof, the Company has sold an aggregate of $______________
principal amount of Registered Securities. The term "Registration
Statement" shall be deemed to include all amendments to the date hereof
and all documents incorporated by reference therein (the "Incorporated
Documents"). The prospectus included in the Registration Statement, as
it is to be supplemented by a prospectus supplement, dated on or about
the date hereof, substantially in the form delivered to the
Representative prior to the execution hereof, relating to the
Securities (the "Prospectus Supplement") and all prior amendments or
supplements thereto (other than amendments or supplements relating to
securities of the Company other than the Securities), including the
Incorporated Documents, is hereinafter referred to as the "Prospectus."
Any reference herein to the terms "amend," "amendment" or "supplement"
with respect to the Registration Statement or the Prospectus shall be
deemed to refer to and include the filing of any document under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
deemed to be incorporated therein after the date hereof and prior to
the termination of the offering of the Securities by the Underwriters;
and any references herein to the terms "Registration Statement" or
"Prospectus" at a date after the filing of the Prospectus Supplement
shall be deemed to refer to the Registration Statement or the
Prospectus, as the case may be, as each may be amended or supplemented
prior to such date.
(b) Prior to the termination of the offering of the
Securities, the Company will not file any amendment to the Registration
Statement or supplement to the Prospectus which shall not have
previously been furnished to the Representative or of which the
Representative shall not previously have been advised or to which the
Representative shall reasonably object in writing and which has not
been approved by the Underwriter(s) or their counsel acting on behalf
of the Underwriters.
(c) The Registration Statement, at the time and date it
was declared effective by the Commission, complied, and the
Registration Statement, the Prospectus and the Mortgage, at the date
the Prospectus is filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act ("Rule 424")
and at the Closing Date, will comply, in all material respects, with
the applicable provisions of the Securities Act and the 1939 Act and
the applicable rules and regulations of the Commission thereunder; the
Registration Statement, at the time and date it was declared effective
by the Commission, did 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; and the
Prospectus, at the date it is filed with, or transmitted for filing to,
the Commission pursuant to Rule 424 and at the Closing Date, will not
contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the foregoing representations and warranties in
this subparagraph (c) shall not apply to statements or omissions made
in reliance upon and in conformity with information furnished herein or
in writing to the Company by the Representative or by or on behalf of
any Underwriter through the Representative expressly for use in the
Prospectus or to any statements in or omissions from the Statement of
Eligibility (Form T-1) of the Trustee. The Incorporated Documents, when
they were filed with the Commission, complied in all material respects
with the applicable requirements of the Exchange Act and the rules and
regulations of the Commission thereunder, and any documents so filed
and incorporated by reference subsequent to the date hereof and prior
to the termination of the
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offering of the Securities by the Underwriters will, when they are
filed with the Commission, comply in all material respects with the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder; and, when read together with the Registration
Statement and the Prospectus, none of such documents included or
includes or will include any untrue statement of a material fact or
omitted or omits or will omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(d) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Florida; has corporate power and authority to own, lease and operate
its properties and to conduct its business as contemplated under this
Agreement and the other agreements to which it is a party; and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify would not
have a material adverse effect on the business, properties or financial
condition of the Company and its subsidiaries considered as a whole.
(e) The historical financial statements incorporated by
reference in the Registration Statement present fairly the financial
condition and operations of the Company 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 that the quarterly financial statements incorporated
by reference from any Quarterly Reports on Form 10-Q contain condensed
footnotes prepared in accordance with applicable Exchange Act rules and
regulations; and any accounting firms that have audited any of the
financial statements are independent public or independent certified
public accountants as required by the Securities Act or the Exchange
Act and the rules and regulations of the Commission thereunder.
(f) Except as reflected in, or contemplated by, the
Registration Statement and the Prospectus, since the respective dates
as of which information is given in the Registration Statement and
Prospectus, and prior to the Closing Date, there has not been any
material adverse change in the business, properties or financial
condition of the Company and its subsidiaries considered as a whole;
and since such dates and prior to the Closing Date, there has not been
any material transaction entered into by the Company other than
transactions contemplated by the Registration Statement and Prospectus
or transactions arising in the ordinary course of business. The Company
has no material contingent obligation that is not disclosed in the
Registration Statement and Prospectus.
(g) The Company has full power and authority to execute,
deliver and perform its obligations under this Agreement. 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 the Company to be fulfilled have been duly authorized by all
necessary corporate action of the Company in accordance with the
provisions of its articles of incorporation, as amended (the
"Charter"), by-laws and applicable law; and the Securities, when issued
and delivered as provided herein, will constitute legal, valid and
binding obligations of the Company in accordance with their terms
subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or similar laws affecting mortgagees'
and other creditors' rights generally and (ii) general principles of
equity (regardless of whether such enforceability is
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considered in a proceeding at law or in equity and except for the
effect on enforceability of federal or state law limiting, delaying or
prohibiting the making of payments outside the United States; provided,
however, that certain remedies, waivers and other provisions of the
Securities may not be enforceable, but such unenforceability will not
render the Securities invalid as a whole or affect the judicial
enforcement of (i) the obligation of the Company to repay the
principal, together with the interest thereon as provided in the
Securities or (ii) the right of the Trustee to exercise its right to
foreclose under the Mortgage.
(h) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will not result in
a breach of any of the terms or provisions of, or constitute a default
under, the Charter, the Company's by-laws, applicable law or any
indenture, mortgage, deed of trust or other agreement or instrument to
which the Company or any of its subsidiaries is now a party or any
judgment, order, writ or decree of any government or governmental
authority or agency or court having jurisdiction over the Company or
any of its subsidiaries or any of their assets, properties or
operations.
(i) The summaries of the terms of the Securities
contained in the Registration Statement and Prospectus fairly describe
the provisions thereof required to be described by the registration
statement form.
(j) The Company does not have any significant
subsidiaries as defined in Rule 1-02 of Regulation S-X promulgated
under the Securities Act.
(k) The Mortgage (A) has been duly authorized, executed
and delivered by the Company, and, assuming due authorization,
execution and delivery of the Supplemental Indenture by the Trustee,
constitutes a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject
to (i) applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or similar laws affecting creditors' rights
generally and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding at law or in equity
and except for the effect on enforceability of federal or state law
limiting, delaying or prohibiting the making of payments outside the
United States); and (B) conforms in all material respects to the
description thereof in the Prospectus.
(l) Neither the Company nor any of its subsidiaries is an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended (the "1940 Act").
(m) Except as described in or contemplated by the
Prospectus, there are no pending actions, suits or proceedings against
or affecting the Company or any of its subsidiaries or properties that
are likely in the aggregate to result in any material adverse change in
the business, properties or financial condition of the Company and its
subsidiaries considered as a whole, or that are likely in the aggregate
to materially and adversely affect the Mortgage, the Securities or the
consummation of this Agreement or the transactions contemplated herein
or therein.
(n) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder in connection
with the offering, issuance or sale of the Securities hereunder or the
consummation of the transactions herein contemplated or for the due
execution, delivery or performance of the Indenture by the
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Company, except such as have already been made or obtained or as may be
required under the Securities Act or state securities laws and except
for the qualification of the Indenture under the 1939 Act.
4. Purchase and Sale. On the basis of the representations,
warranties and covenants herein contained, but subject to the terms and
conditions herein set forth, the Company agrees to sell to each of the
Underwriters, severally and not jointly, and each such Underwriter agrees,
severally and not jointly, to purchase from the Company, the respective
principal amount of Securities set forth opposite the name of such Underwriter
in Schedule II hereto at the purchase price set forth in Schedule I hereto.
5. Reoffering by Underwriters. The Underwriters agree to make
promptly a bona fide public offering of the Securities to the public for sale as
set forth in the Prospectus, subject, however, to the terms and conditions of
this Agreement.
6. Time and Place of Closing; Default of Underwriters.
(a) Payment for the Securities shall be made at the
place, time and date specified in Schedule I hereto against delivery of
the Securities at the office of First Chicago Trust Company of New
York, [address], or such other place, time and date as the
Representative and the Company may agree. The hour and date of such
delivery and payment are herein called the "Closing Date." Payment for
the Securities shall be by wire transfer of immediately available funds
against delivery to The Depository Trust Company or to ______________,
as custodian for The Depository Trust Company, in fully registered
global form registered in the name of CEDE & Co., for the respective
accounts specified by the Representative not later than the close of
business on the business day prior to the Closing Date or such other
date and time not later than the Closing Date as agreed by The
Depository Trust Company or First Chicago Trust Company of New York.
For the purpose of expediting the checking of the certificates by the
Representative, the Company agrees to make the Securities available to
the Representative not later than 10:00 A.M., on the last full business
day prior to the Closing Date at said office of First Chicago Trust
Company of New York.
(b) If one or more of the Underwriters shall, for any
reason permitted hereunder, cancel its obligation to purchase hereunder
and to take up and pay for the principal amount of the Securities to be
purchased by such one or more Underwriters, the Company shall
immediately notify the Representative, and the remaining Underwriters
shall have the right, within 24 hours of receipt of such notice, either
to take up and pay for (in such proportion as may be agreed upon among
them) or to substitute another Underwriter or Underwriters,
satisfactory to the Company, to take up and pay for the principal
amount of the Securities that such one or more Underwriters did not
purchase. If one or more Underwriters shall, for any reason other than
a reason permitted hereunder, fail to take up and pay for the principal
amount of the Securities to be purchased by such one or more
Underwriters, the Company shall immediately notify the Representative,
and the remaining Underwriters shall be obligated to take up and pay
for (in addition to the respective principal amount of the Securities
set forth opposite their respective names in Schedule II hereto) the
principal amount of the Securities that such defaulting Underwriter or
Underwriters failed to take up and pay for, up to a principal amount
thereof equal to, in the case of each such remaining Underwriter, 10%
of the principal amount of the Securities set forth opposite the name
of such remaining Underwriter in said Schedule II, and such remaining
Underwriters shall have the right, within 24 hours of receipt of such
notice, either to take up and pay for (in such proportion as may be
agreed upon among them), or to substitute another
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Underwriter or Underwriters, satisfactory to the Company, to take up
and pay for the remaining principal amount of the Securities that the
defaulting Underwriter or Underwriters agreed but failed to purchase.
If any unpurchased Securities still remain, then the Company or the
Representative shall be entitled to an additional period of 24 hours
within which to procure another party or parties, members of the
National Association of Securities Dealers, Inc. (or if not members of
such Association, who are not eligible for membership in said
Association and who agree (i) to make no sales within the United
States, its territories or its possessions or to persons who are
citizens thereof or residents therein and (ii) in making sales to
comply with said Association's Rules of Fair Practice) and satisfactory
to the Company, to purchase or agree to purchase such unpurchased
Securities on the terms herein set forth. In any such case, either the
Representative or the Company shall have the right to postpone the
Closing Date for a period not to exceed three full business days from
the date agreed upon in accordance with this paragraph 6, in order that
the necessary changes in the Registration Statement and Prospectus and
any other documents and arrangements may be effected. If (i) neither
the non-defaulting Underwriters nor the Company has arranged for the
purchase of such unpurchased Securities by another party or parties as
above provided and (ii) the Company and the non-defaulting Underwriters
have not mutually agreed to offer and sell the Securities other than
the unpurchased Securities, then this Agreement shall terminate without
any liability on the part of the Company or any Underwriter (other than
an Underwriter that shall have failed or refused, in accordance with
the terms hereof, to purchase and pay for the principal amount of the
Securities that such Underwriter has agreed to purchase as provided in
paragraph 4 hereof), except as otherwise provided in paragraph 7 and
paragraph 8 hereof.
7. Covenants of the Company. The Company covenants with each
Underwriter that:
(a) As soon as reasonably possible after the execution
and delivery of this Agreement, the Company will file the Prospectus
with the Commission pursuant to Rule 424 setting forth, among other
things, the necessary information with respect to the terms of offering
of the Securities. The Company will promptly deliver to the
Representative and to counsel for the Underwriters, to the extent not
previously delivered, one fully executed copy or one conformed copy,
certified by an officer of the Company, of the Registration Statement,
as originally filed, and of all amendments thereto, heretofore or
hereafter made (other than those relating solely to securities other
than the Securities), including any post-effective amendment (in each
case including all exhibits filed therewith and all documents
incorporated therein not previously furnished to the Representative),
including signed copies of each consent and certificate included
therein or filed as an exhibit thereto, and will deliver to the
Representative for distribution to the Underwriters as many conformed
copies of the foregoing (excluding the exhibits, but including all
documents incorporated therein) as the Representative may reasonably
request. The Company will also send to the Underwriters as soon as
practicable after the date of this Agreement and thereafter from time
to time as many copies of the Prospectus as the Representative may
reasonably request for the purposes required by the Securities Act.
(b) During such period (not exceeding nine months) after
the commencement of the offering of the Securities as the Underwriters
may be required by law to deliver a Prospectus, if any event relating
to or affecting the Company, or of which the Company shall be advised
in writing by the Representative shall occur, which in the opinion of
the Company or the Representative 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
to a purchaser, or if it is necessary to amend the Prospectus to comply
with the Securities Act, the
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Company will forthwith at its expense prepare and furnish to the
Underwriters and dealers named by the Representative a reasonable
number of copies of a supplement or supplements or an amendment or
amendments to the Prospectus that will supplement or amend the
Prospectus so that as supplemented or amended it will comply with the
Securities Act and will not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading. In case any
Underwriter is required to deliver a Prospectus after the expiration of
nine months after the commencement of the offering of the Securities,
the Company, upon the request of the Representative, will furnish to
the Representative, at the expense of such Underwriter, a reasonable
quantity of a supplemented or amended prospectus, or supplements or
amendments to the Prospectus, complying with Section 10(a) of the
Securities Act.
(c) The Company will make generally available to its
security holders, as soon as reasonably practicable, but in any event
not later than 16 months after the end of the fiscal quarter in which
the filing of the Prospectus pursuant to Rule 424 occurs, an earning
statement (in form complying with the provisions of Section 11(a) of
the Securities Act, which need not be certified by independent public
accountants) covering a period of twelve months beginning not later
than the first day of the Company's fiscal quarter next following the
filing of the Prospectus pursuant to Rule 424.
(d) The Company will use its best efforts promptly to do
and perform all things to be done and performed by it hereunder prior
to the Closing Date and to satisfy all conditions precedent to the
delivery by it of the Securities.
(e) Prior to the Closing Date, the Company will cause the
Supplemental Indenture to be recorded in all recording offices in the
State of Florida in which the property intended to be subject to the
lien of the Mortgage is located and to be filed in the Office of the
Secretary of State of the State of Florida.
(f) The Company will advise the Representative promptly
of the filing of the Prospectus pursuant to Rule 424 and of any
amendment or supplement to the Prospectus or Registration Statement or
of official notice of institution of proceedings for, or the entry of,
a stop order suspending the effectiveness of the Registration Statement
and, if such a stop order should be entered, use its best efforts to
obtain the prompt removal thereof.
(g) The Company will use its best efforts to qualify the
Securities for offer and sale under the Blue Sky or legal investment
laws of such jurisdictions as the Representative may designate, and
will file and make in each year such statements or reports as are or
may be reasonably required by the laws of such jurisdictions; provided,
however, that the Company shall not be required to qualify as a foreign
corporation or dealer in securities, or to file any general consents to
service of process, under the laws of any jurisdiction.
8. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement and the printing of
this Agreement, (ii) the delivery of the Securities to the Underwriters, (iii)
the fees and disbursements of the Company's counsel and accountants, (iv) the
expenses in connection with the qualification of the Securities under securities
laws in accordance with the provisions of paragraph 7(g), including filing fees
and the fees and disbursements of counsel for the Underwriters in connection
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therewith, and in connection with the preparation of the Blue Sky Survey and any
Legality Memorandum, such fees and disbursements not to exceed $7,500, (v) the
printing and delivery to the Underwriters of copies of the Registration
Statement and all amendments thereto, of the preliminary prospectuses, and of
the Prospectus and any amendments or supplements thereto, (vi) the printing and
delivery to the Underwriters of copies of the Blue Sky Survey and any Legality
Memorandum, and (vii) the preparation, execution, filing and recording by the
Company of the Supplemental Indenture (such filing and recordation to be
promptly made after execution and delivery of the Supplemental Indenture to the
Trustee under the Mortgage in the counties in which the mortgaged property of
the Company is located); and the Company will pay all taxes, if any (but not
including any transfer taxes), on the issue of the Securities and the filing and
recordation of the Supplemental Indenture. The fees and disbursements of
Underwriters' counsel shall be paid by the Underwriters (subject, however, to
the provisions of this paragraph 8 requiring payment by the Company of fees and
expenses not to exceed $7,500); provided, however, that if this Agreement is
terminated in accordance with the provisions of paragraph 9, 10 or 12, the
Company shall reimburse the Representative for the account of the Underwriters
for the fees and disbursements of Underwriters' counsel. The Company shall not
be required to pay any amount for any expenses of the Representative or of any
other of the Underwriters except as provided in paragraph 7 and in this
paragraph 8. The Company shall not in any event be liable to any of the
Underwriters for damages on account of the loss of anticipated profit.
9. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase and pay for the Securities shall be
subject to the accuracy of the representations and warranties on the part of the
Company as of the date hereof and the Closing Date, to the performance by the
Company of its obligations to be performed hereunder prior to the Closing Date,
and to the following further conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date and no
proceedings for that purpose shall be pending before, or, to the
Company's knowledge, threatened by, the Commission on the Closing Date;
and the Representative shall have received, prior to payment for the
Securities, a certificate dated the Closing Date and signed by the
Chairman, President or a Vice President of the Company to the effect
that no such stop order is in effect and that no proceedings for such
purpose are pending before or, to the knowledge of the Company,
threatened by the Commission.
(b) At the time of execution of this Agreement, or such
later date as shall have been consented to by the Representative, there
shall have been issued, and on the Closing Date there shall be in full
force and effect, an order of the Florida Public Service Commission
authorizing the issuance and sale of the Securities, which shall not
contain any provision unacceptable to the Representative by reason of
its being materially adverse to the Company (it being understood that
no such order in effect on the date of this Agreement and heretofore
furnished to the Representative or counsel for the Underwriters
contains any such unacceptable provision).
(c) At the Closing Date, the Representative shall receive
favorable opinions from: (1) Hunton & Xxxxxxxx, counsel to the Company,
which opinion shall be satisfactory in form and substance to counsel
for the Underwriters, and (2) Pillsbury Winthrop LLP, counsel for the
Underwriters, in each of which opinions (except as to subdivision (vi)
(as to documents incorporated by reference, at the time they were filed
with the Commission) as to which Pillsbury Winthrop LLP need express no
opinion) said counsel may rely as to all matters of Florida law upon
the opinion of R. Xxxxxxxxx Xxxxx, Associate General Counsel of the
Company, to the effect that:
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(i) The Mortgage has been duly and validly
authorized by all necessary corporate action (with this
opinion required in the Hunton & Xxxxxxxx opinion only as to
the original Indenture dated as of January 1, 1944 and the
Supplemental Indentures subsequent to, but not including, the
Thirty-Eighth Supplemental Indenture), has been duly and
validly executed and delivered by the Company (with this
opinion required in the Hunton & Xxxxxxxx opinion only as to
the original Indenture dated as of January 1, 1944 and the
Supplemental Indentures subsequent to, but not including, the
Thirty-Eighth Supplemental Indenture), and is a valid and
binding mortgage of the Company enforceable in accordance with
its terms, except as limited by bankruptcy, insolvency or
other laws affecting mortgagees' and other creditors' rights
and general equitable principles and any implied covenant of
good faith and fair dealing (with this opinion required in the
Hunton & Xxxxxxxx opinion only as to the original Indenture
dated as of January 1, 1944 and the Supplemental Indentures
subsequent to, but not including, the Thirty-Eighth
Supplemental Indenture); provided, however, that certain
remedies, waivers and other provisions of the Mortgage may not
be enforceable, but such unenforceability will not render the
Mortgage invalid as a whole or affect the judicial enforcement
of (i) the obligation of the Company to repay the principal,
together with the interest thereon as provided in the
Securities or (ii) the right of the Trustee to exercise its
right to foreclose under the Mortgage;
(ii) The Mortgage has been duly qualified under
the 1939 Act;
(iii) Assuming authentication of the Securities by
the Trustee in accordance with the Mortgage and delivery of
the Securities to and payment for the Securities by the
Underwriters, as provided in this Agreement, the Securities
have been duly and validly authorized, executed and delivered
and are legal, valid and binding obligations of the Company
enforceable in accordance with their terms, except as limited
by bankruptcy, insolvency or other laws affecting mortgagees'
and other creditors' rights and general equitable principles,
are entitled to the benefits of the security afforded by the
Mortgage, and are secured equally and ratably with all other
bonds outstanding under the Mortgage except insofar as any
sinking or other fund may afford additional security for the
bonds of any particular series;
(iv) The statements made in the Prospectus under
the caption "Description of First Mortgage Bonds" and in the
Prospectus Supplement under the caption "Description of the
Offered Securities," insofar as they purport to constitute
summaries of the documents referred to therein, are correct in
all material respects;
(v) This Agreement has been duly and validly
authorized, executed and delivered by the Company;
(vi) The Registration Statement, at the time and
date it was declared effective by the Commission, and the
Prospectus, at the time it was filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 (except as to
the financial statements and other financial and statistical
data constituting a part thereof or incorporated by reference
therein, upon which such opinions need not pass), complied as
to form in all material respects with the requirements of the
Securities Act and the 1939 Act and the applicable
instructions, rules and regulations of the Commission
thereunder;
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the documents or portions thereof filed with the Commission
pursuant to the Exchange Act and deemed to be incorporated by
reference in the Registration Statement and the Prospectus
pursuant to Item 12 of Form S-3 (except as to financial
statements and other financial and statistical data
constituting a part thereof or incorporated by reference
therein, upon which such opinions need not pass), at the time
they were filed with the Commission, complied as to form in
all material respects with the requirements of the Exchange
Act and the applicable instructions, rules and regulations of
the Commission thereunder; the Registration Statement has
become effective under the Securities Act and, to the best of
the knowledge of said counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued
and not withdrawn, and no proceedings for a stop order with
respect thereto are threatened or pending under Section 8 of
the Securities Act;
(vii) Nothing has come to the attention of said
counsel that would lead them to believe that the Registration
Statement, at the time and date it was declared effective by
the Commission, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus, at the time it was filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424 or at the Closing Date, 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 therein, in the light of the circumstances under
which they were made, not misleading (except as to financial
statements and other financial and statistical data
constituting a part of the Registration Statement or the
Prospectus or incorporated by reference therein, upon which
such opinions need not pass);
(d) At the Closing Date, the Representative shall receive
from R. Xxxxxxxxx Xxxxx, Associate General Counsel of the Company, a
favorable opinion in form and substance satisfactory to counsel for the
Underwriters, to the same effect with respect to the matters enumerated
in subdivisions (i) through (v) and subdivision (vii) of subparagraph
(c) of this paragraph 9 as the opinions required by said subparagraph
(c), and to the further effect that:
(i) The Company is a validly organized and
existing corporation under the laws of the State of Florida;
(ii) The Company is duly authorized by its
Charter to conduct the business that it is now conducting as
set forth in the Prospectus;
(iii) the Company is an electrical utility engaged
in the business of generating, transmitting, distributing and
selling electric power to the general public in the State of
Florida;
(iv) The Company has valid and subsisting
franchises, licenses and permits adequate for the conduct of
its business;
(v) The Company has good and marketable title,
with minor exceptions, restrictions and reservations in
conveyances, and defects that are of the nature ordinarily
found in properties of similar character and magnitude and
that, in his opinion, will not in any substantial way impair
the security afforded by the Mortgage, to all the properties
described in the granting clauses of the Mortgage and upon
which the Mortgage purports
-10-
11
to create a lien. The description in the Mortgage of the
above-mentioned properties is legally sufficient to constitute
the Mortgage a lien upon said properties (other than those
expressly excepted and reserved therefrom). Said properties
constitute substantially all the permanent physical properties
and franchises (other than those expressly excepted and
reserved therefrom) of the Company and are held by the Company
free and clear of all liens and encumbrances except the lien
of the Mortgage and excepted encumbrances, as defined in the
Mortgage. The properties of the Company are subject to liens
for current taxes, which it is the practice of the Company to
pay regularly as and when due. The Company has easements for
rights-of-way adequate for the operations and maintenance of
its transmission and distribution lines that are not
constructed upon public highways. The Company has followed
the practice generally of purchasing rights-of-way and
easements and certain small parcels of fee property
appurtenant thereto and for use in conjunction therewith, and
certain other properties of small or inconsequential value,
without an examination of title and, as to the title to lands
affected by rights-of-way and easements, of not examining the
title of the lessor or grantor whenever the lands affected by
such rights-of-way and easements are not of such substantial
value as in the opinion of the Company to justify the expense
attendant upon examination of titles in connection therewith.
In the opinion of said counsel, such practice of the Company
is consistent with good practice and with the method followed
by other companies engaged in the same business and is
reasonably adequate to assure the Company of good and
marketable title to all such property acquired by it. It is
the opinion of said counsel, that any such conditions or
defects as may be covered by the above recited exceptions are
not substantial and would not interfere with the Company's
business operations. The Company has the right of eminent
domain in the State of Florida under which it may, if
necessary, perfect or obtain title to privately owned land or
acquire easements or rights-of-way required for use or used by
the Company in its public utility operations;
(vi) The Company's Indenture dated as of January
1, 1944 and the First through the Thirty-Eighth Supplemental
Indentures thereto have been recorded and filed in such manner
and in such places as may be required by law in order fully to
preserve and protect the security of the bondholders and all
rights of the Trustee thereunder; and the Supplemental
Indenture relating to the Securities is in proper form for
filing for record both as a real estate mortgage and as a
security interest in all counties in the State of Florida in
which any of the property (except as any therein or in the
Mortgage are expressly excepted) described therein or in the
Mortgage as subject to the lien of the Mortgage is located
and, upon such recording, the Supplemental Indenture will
constitute adequate record notice to perfect the lien of the
Mortgage, and preserve and protect the security of the
bondholders and all rights of the Trustee, as to all mortgaged
and pledged property acquired by the Company subsequent to the
recording of the Thirty-Eighth Supplemental Indenture and
prior to the recording of the Supplemental Indenture;
(vii) The Mortgage constitutes a valid direct and
first mortgage lien of record upon all the franchises and
properties now owned by the Company (other than those
expressly excepted therefrom) situated in the State of
Florida, as described or referred to
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12
in the granting clauses of the Mortgage, subject to the
exceptions as to bankruptcy, insolvency and other laws stated
in subdivision (i) of subparagraph (c) above;
(viii) The issuance and sale of the Securities have
been duly authorized by all necessary corporate action on the
part of the Company;
(ix) An order has been entered by the Florida
Public Service Commission authorizing the issuance and sale of
the Securities, and to the best of the knowledge of said
counsel, said order is still in force and effect; and no
further filing with, approval, authorization, consent or other
order of any public board or body (except such as have been
obtained under the Securities Act and as may be required under
the state securities or Blue Sky laws of any jurisdiction) is
legally required for the consummation of the transactions
contemplated in this Agreement;
(x) Except as described in or contemplated by
the Prospectus, there are no pending actions, suits or
proceedings against the Company or any of its subsidiaries or
properties that are likely, in the aggregate, to result in any
material adverse change in the business, properties or
financial condition of the Company and its subsidiaries
considered as a whole or that are likely, in the aggregate, to
materially and adversely affect the Mortgage, the Securities
or the consummation of this Agreement, or the transactions
contemplated herein or therein; and
(xi) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will not
result in a breach of any of the terms or provisions of, or
constitute a default under, the Charter, the Company's
by-laws, applicable law or any indenture, mortgage, deed of
trust or other agreement or instrument to which the Company is
now a party or any judgment, order, writ or decree of any
government or governmental authority or agency or court having
jurisdiction over the Company or any of its subsidiaries or
any of their assets, properties or operations.
In said opinion such counsel may rely as to all matters of New York law
on the opinion of Hunton & Xxxxxxxx.
(f) At the Closing Date, the Representative shall have
received from each of KPMG LLP and Deloitte & Touche LLP a letter,
dated the Closing Date, confirming that they are independent certified
public accountants within the meaning of the Securities Act and the
Exchange Act, and of the applicable published rules and regulations
thereunder, and stating in effect: (i) with respect to the letter from
KPMG LLP, that in their opinion, the audited financial statements
incorporated by reference in the Registration Statement comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act or the Exchange Act, as applicable,
and of the published rules and regulations thereunder; (ii) with
respect to the letter from Deloitte & Touche LLP, that based on the
performance of the procedures specified by the American Institute of
Certified Public Accountants for review of interim financial
information as described in Statement on Auditing Standards ("SAS") No.
71, Interim Financial Information, on the unaudited financial
statements incorporated by
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13
reference in the Registration Statement, inquiries of officials of the
Company responsible for financial and accounting matters and reading
the minutes of meetings of the Board of Directors, of the Executive
Committee of the Board of Directors and of the shareholders, nothing
came to their attention that caused them to believe that (A) the
unaudited financial statements incorporated by reference in the
Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the Securities
Act or the Exchange Act, as applicable, and the published rules and
regulations thereunder or any material modifications should be made for
them to be in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the most
recent audited financial statements incorporated by reference in the
Registration Statement; or (B) at the date of the latest available
interim balance sheet read by them and at a subsequent date not more
than three business days prior to the date of the letter, there was any
change in the capital stock or long-term debt of the Company, or at the
date of the latest available interim balance sheet read by them, there
was any decrease in net assets as compared with the amount shown on the
most recent balance sheet incorporated by reference in the Registration
Statement, except for changes or decreases that the Registration
Statement discloses have occurred or may occur, for declarations of
dividends or for changes or decreases that are described in the letter;
and (iii) from both KPMG LLP and Deloitte & Touche LLP, covering such
other matters as the Representative shall reasonably request.
(g) At the Closing Date, the Representative shall receive
a certificate of the Chairman, President or a Vice President of the
Company, dated the Closing Date, to the effect that the representations
and warranties of the Company in this Agreement are true and correct as
of the Closing Date.
(h) All legal proceedings taken in connection with the
sale and delivery of the Securities shall have been satisfactory in
form and substance to counsel for the Underwriters, and the Company, as
of the Closing Date, shall be in compliance with any governing order of
the Florida Public Service Commission, except where the failure to
comply with such order would not be material to the offering or
validity of the Securities.
In case any of the conditions specified above in this paragraph 9 shall
not have been fulfilled or waived by 2:00 P.M. on the Closing Date, this
Agreement may be terminated by the Representative by mailing or delivering
written notice thereof to the Company. Any such termination shall be without
liability of any party to any other party except as otherwise provided in
paragraphs 7 and 8.
10. Conditions of the Company's Obligations. The obligations of
the Company to deliver the Securities shall be subject to the following
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date, and no
proceedings for that purpose shall be pending before or threatened by
the Commission on the Closing Date.
(b) Prior to 12:00 Noon, New York time, on the day
following the date of this Agreement, or such later date as shall have
been consented to by the Company, there shall have been issued and on
the Closing Date there shall be in full force and effect an order of
the Florida Public Service Commission authorizing the issuance and sale
by the Company of the Securities, which shall not contain any provision
unacceptable to the Company by reason of its being materially adverse
to the Company (it being understood that the order in effect as of the
date of this Agreement contains any such unacceptable provision).
In case any of the conditions specified in this paragraph 10 shall not
have been fulfilled at the Closing Date, this Agreement may be terminated by the
Company by mailing or delivering written notice
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14
thereof to the Representative. Any such termination shall be without liability
of any party to any other party except as otherwise provided in paragraphs 7 and
8.
11. Indemnification.
(a) The Company agrees to indemnify and hold harmless
each Underwriter, each officer and director of each Underwriter and
each person who controls any Underwriter within the meaning of Section
15 of the Securities Act 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 under any other statute or common
law and to reimburse each such Underwriter, each such officer and
director, and each such controlling person for any legal or other
expenses (including to the extent hereinafter provided, reasonable
counsel fees) incurred by them, when and as incurred, in connection
with investigating any such losses, claims, damages or liabilities or
in connection with defending any actions, insofar as such losses,
claims, damages, liabilities, expenses or actions arise out of or are
based upon any untrue statement, or alleged untrue statement, of a
material fact contained in the Registration Statement, any preliminary
prospectus 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 paragraph 11
shall not apply to any such losses, claims, damages, liabilities,
expenses or actions arising out of or based upon any such untrue
statement or alleged untrue statement, or any such omission or alleged
omission, if such statement or omission was made in reliance upon and
in conformity with information furnished herein or in writing to the
Company by any Underwriter through the Representative expressly for use
in the Registration Statement, any preliminary prospectus or the
Prospectus, or any amendment or supplement to any thereof, or arising
out of, or based upon, statements in or omissions from that part of the
Registration Statement that shall constitute the Statement of
Eligibility under the 1939 Act (Form T-1) of the Trustee, and provided,
further, that the indemnity agreement contained in this paragraph 11
shall not inure to the benefit of any Underwriter (or of any person
controlling such Underwriter) on account of any such losses, claims,
damages, liabilities, expenses or actions arising from the sale of the
Securities to any person if a copy of the Prospectus (excluding
documents incorporated by reference therein) shall not have been given
or sent to such person by or on behalf of such Underwriter with or
prior to the written confirmation of the sale involved, unless such
Prospectus failed to correct the omission or misstatement. The
indemnity agreement of the Company contained in this paragraph 11 and
the representations and warranties of the Company contained in
paragraph 3 hereof shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any
Underwriter, and such officer or director or any such controlling
person and shall survive the delivery of the Securities. The
Underwriters agree to notify promptly the Company, and each other
Underwriter, of the commencement of any litigation or proceedings
against them or any of them, or any such officer or director or any
such controlling person, in connection with the sale of the Securities.
(b) Each Underwriter severally, and not jointly, agrees
to indemnify and hold harmless the Company, its officers and directors,
and each person who controls the Company within the meaning of Section
15 of the Securities Act, against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may
become subject under the Securities Act or under 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
-14-
15
fees) incurred by them, when and as incurred, in connection with
investigating any such losses, claims, damages, or liabilities, or in
connection with defending any actions, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, any preliminary
prospectus or the 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 herein or in writing to the
Company by such Underwriter or through the Representative on behalf of
such Underwriter expressly for use in the Registration Statement, any
preliminary prospectus or the Prospectus or any amendment or supplement
to any thereof. The indemnity agreement of all the respective
Underwriters contained in this paragraph 11 shall remain operative and
in full force and effect regardless of any investigation made by or on
behalf of the Company or any other Underwriter, or any such officer or
director or any such controlling person, and shall survive the delivery
of the Securities. The Company agrees promptly to notify the
Representative of the commencement of any litigation or proceedings
against the Company or any of its officers or directors, or any such
controlling person, in connection with the sale of the Securities.
(c) The Company and each of the Underwriters agree that,
upon the receipt of notice of the commencement of any action against
it, its officers or directors, or any person controlling it as
aforesaid, in respect of which indemnity may be sought on account of
any indemnity agreement contained herein, it will promptly give written
notice of the commencement thereof to the party or parties against whom
indemnity shall be sought hereunder. The Company and each of the
Underwriters agree that the notification required by the preceding
sentence shall be a material term of this Agreement. The omission so to
notify such indemnifying party or parties of any such action shall
relieve such indemnifying party or parties from any liability that it
or they may have to the indemnified party on account of any indemnity
agreement contained herein if such indemnifying party was materially
prejudiced by such omission, but shall not relieve such indemnifying
party or parties from any liability that it or they may have to the
indemnified party otherwise than on account of such indemnity
agreement. In case such notice of any such action shall be so given,
such indemnifying party shall be entitled to participate at its own
expense in the defense or, if it so elects, to assume (in conjunction
with any other indemnifying parties) the defense of such action, in
which event such defense shall be conducted by counsel chosen by such
indemnifying party (or parties) and satisfactory to the indemnified
party or parties who shall be defendant or defendants in such action,
and such defendant or defendants shall bear the fees and expenses of
any additional counsel retained by them; but if the indemnifying party
shall elect not to assume the defense of such action, such indemnifying
parties will reimburse such indemnified party or parties for the
reasonable fees and expenses of any counsel retained by them, as such
expenses are incurred; provided, however, if the defendants (including
any impleaded parties) in any such action include both the indemnified
party and the indemnifying party, and counsel for the indemnified party
shall have concluded, in its reasonable judgment, that there may be a
conflict of interest involved in the representation by such counsel of
both the indemnifying party and the indemnified party, the indemnified
party or parties shall have the right to select separate counsel,
satisfactory to the indemnifying party, to participate in the defense
of such action on behalf of such indemnified party or parties (it being
understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel representing the
indemnified parties who are parties to such action). Each of the
Company and the several Underwriters agrees that without the other
party's prior written consent, which consent shall not be unreasonably
withheld, it will not settle, compromise or consent to the entry of any
judgment in any claim in respect of which indemnification may be sought
-15-
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under the indemnification provisions of this Agreement, unless such
settlement, compromise or consent (i) includes an unconditional release
of such other party from all liability arising out of such claim 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 party.
(d) If the indemnification provided for in subparagraphs
(a) or (b) above is for any reason unavailable to or insufficient to
hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company,
on the one hand, and the Underwriters, on the other hand, from the
offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
the Company, on the one hand, and of the Underwriters, on the other
hand, in connection with the statements or omissions that resulted in
such losses, liabilities, claims, damages or expenses, as well as any
other relevant equitable considerations. The relative benefits received
by the Company, on the one hand, and the Underwriters, on the other
hand, in connection with the offering of the Securities pursuant to
this Agreement shall be deemed to be in the same respective proportions
as the total net proceeds from the offering of the Securities pursuant
to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, bear to the
aggregate initial public offering price of the Securities as set forth
on such cover. The relative fault of the Company, on the one hand, and
the Underwriters, on the other hand, shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this paragraph (d) were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to above in this subparagraph (d). No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes
of this subparagraph (d), each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director of the Company,
each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this
subparagraph (d) are several in proportion to the number of Securities
set forth opposite their respective names in Schedule II hereto and not
joint.
(e) For purposes of this paragraph 11, it is understood and
agreed that the only information provided by the Underwriters expressly
for use in the Registration Statement and Prospectus was as follows:
_________________________________________.
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12. Termination Date of this Agreement. This Agreement may be
terminated by the Representative at any time prior to the Closing Date by
delivering written notice thereof to the Company, if on or after the date of
this Agreement but prior to such time (a) there shall have occurred any general
suspension of trading in securities on the New York Stock Exchange, or there
shall have been established by the New York Stock Exchange or by the Commission
or by any federal or state agency or by the decision of any court any limitation
on prices for such trading or any restrictions on the distribution of
securities, or (b) there shall have occurred any new outbreak of hostilities,
including, but not limited to, an escalation of hostilities that existed prior
to the date of this Agreement or any national or international calamity or
crisis, the effect of which outbreak, escalation, calamity or crisis on the
financial markets of the United States shall be such as to make it
impracticable, in the reasonable judgment of the Representative, for the
Underwriters to enforce contracts for the sale of the Securities, or (c) the
Company shall have sustained a substantial loss by fire, flood, accident or
other calamity that renders it impracticable, in the reasonable judgment of the
Representative, to consummate the sale of the Securities and the delivery of the
Securities by the several Underwriters at the initial public offering price, or
(d) there shall have been any downgrading or any notice of any intended or
potential downgrading in the rating accorded the Company's securities by any
"nationally recognized statistical rating organization" as that term is defined
by the Commission for the purposes of Securities Act Rule 436(g)(2), or any such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of the Securities, or
any of the Company's other outstanding debt, the effect of which in the
reasonable judgment of the Representative, makes it impracticable or inadvisable
to consummate the sale of the Securities and the delivery of the Securities by
the several Underwriters at the initial public offering price. This Agreement
may also be terminated at any time prior to the Closing Date if in the
reasonable judgment of the Representative the subject matter of any amendment or
supplement to the Registration Statement or Prospectus (other than an amendment
or supplement relating solely to the activity of any Underwriter or
Underwriters) filed after the execution of this Agreement shall have materially
impaired the marketability of the Securities. Any termination hereof pursuant to
this paragraph 12 shall be without liability of any party to any other party
except as otherwise provided in paragraphs 7 and 8.
13. Miscellaneous. The validity and interpretation of this
Agreement shall be governed by the laws of the State of New York. Unless
otherwise specified, time of day refers to New York City time. This Agreement
shall inure to the benefit of, and be binding upon, the Company, the several
Underwriters, and with respect to the provisions of paragraph 11, the officers
and directors and each controlling person referred to in paragraph 11, and their
respective successors. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. The term "successors" as used in this Agreement
shall not include any purchaser, as such purchaser, of any of the Securities
from any of the several Underwriters.
14. Notices. All communications hereunder shall be in writing or
by telefax and, if to the Underwriters, shall be mailed, transmitted by any
standard form of telecommunication or delivered to the Representative at the
address set forth in Schedule I hereto and if to the Company, shall be mailed or
delivered to it at 000 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000,
attention of _______________________.
15. Counterparts. This Agreement may be simultaneously executed in
counterparts, each of which when so executed shall be deemed to be an original.
Such counterparts shall together constitute one and the same instrument.
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16. Defined Terms. Unless otherwise defined herein, capitalized
terms used in this Underwriting Agreement shall have the meanings assigned to
them in the Registration Statement.
[The remainder of this page has been intentionally left blank.]
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company the enclosed duplicate hereof
whereupon it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
FLORIDA POWER CORPORATION
By:
----------------------------------
Authorized Representative
Accepted as of the date first
above written, as Underwriter
named in, and as the Representative
of the other Underwriters named in, Schedule II.
__________________________ [NAME OF REPRESENTATIVE]
By:
----------------------------------------
Authorized Representative
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SCHEDULE I
Underwriting Agreement dated ___________, ____
Registration Statement No. ________
Representative and Addresses:
-------------------------------
-------------------------------
-------------------------------
Attention:
---------------------
with a copy of any notice pursuant to Section 11(a) to:
-------------------------------
-------------------------------
-------------------------------
Attention: Legal Department
Designation: First Mortgage Bonds, ___% Series due ______, ____
Principal Amount: $___________
Supplemental Indenture: ___________________, dated as of _________, ____
Date of Maturity: ___________, ____
Interest Rate: ____% per annum, payable ____________ __ and __________ __ of
each year, commencing ____________, ____.
Record Dates: _____________________ and _____________________, commencing
______________________________.
Purchase Price: _____% of the principal amount thereof, plus accrued interest
from _______________ to the date of payment and delivery.
Public Offering Price: ____% of the principal amount thereof, plus accrued interest
from ________________ to the date of payment and delivery.
Redemption Terms:
Closing Date and Location:
--------------------------------
Hunton & Xxxxxxxx
One Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
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SCHEDULE II
Underwriters Principal Amount
TOTAL..............................................
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