EXHIBIT 1(A)
FLORIDA POWER & LIGHT COMPANY
First Mortgage Bonds
Underwriting Agreement
[Date]
Agreement between Florida Power & Light Company, a Florida
corporation ("FPL"), and the several Underwriters, or the
Underwriter, as the case may be, named in Schedule A to the Form
of Proposal (the "Proposal") to which this underwriting agreement
is attached (the underwriting agreement, together with the
Proposal, are referred to jointly herein as "this agreement" or
the "Underwriting Agreement") relating to the issuance and sale
by FPL of its First Mortgage Bonds of the series designation,
with the terms and in the principal amount as set forth in this
agreement (the "Bonds").
The term "Underwriters" as used herein shall be deemed to
mean the firm or corporation or the several firms or corporations
named in Schedule A to the Proposal and any underwriter
substituted as provided in Section 4 hereof and the term
"Underwriter" shall be deemed to mean one of such Underwriters.
The term "Representatives," as used herein, shall be deemed to
mean the representative or representatives, if any, named in the
questionnaire heretofore submitted to FPL by each of the
Underwriters, who by signing the Proposal represent that it or
they have been authorized by each Underwriter to sign such
Proposal and enter into this agreement on behalf of such
Underwriter and to act for it in the manner herein provided. All
obligations of the Underwriters hereunder are several and not
joint. If more than one firm is named in Schedule A to the
Proposal, any action under or in respect of this agreement may be
taken by such firms jointly as the Representatives or by one of
the firms acting on behalf of the Representatives and such action
will be binding upon all the Underwriters.
The Bonds will be a series of First Mortgage Bonds ("First
Mortgage Bonds") issued by FPL under its Mortgage and Deed of
Trust, dated as of January 1, 1944, to Bankers Trust Company, as
Trustee (the "Mortgage Trustee"), and The Florida National Bank
of Jacksonville (now resigned), as heretofore supplemented and as
it will be further supplemented by a supplemental indenture
relating to the Bonds ("Supplemental Indenture") in substantially
the form heretofore delivered to the Representatives. Such
Mortgage and Deed of Trust as it has been and will be so
supplemented is hereinafter called the "Mortgage".
FPL has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3,
including a prospectus ("registration statement No. 333-53053"),
for the registration of $210,000,000 aggregate principal amount
of its First Mortgage Bonds under the Securities Act of 1933, as
amended (the "Securities Act"), which registration statement has
been declared effective by the Commission. FPL also filed with
the Commission a registration statement on Form S-3, including a
prospectus ("registration statement No. ") for the
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registration of $ of its First Mortgage Bonds, which
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registration statement has been declared effective by the
Commission. All but $ principal amount of First Mortgage
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Bonds registered with the Commission under the Securities Act
pursuant to registration statement No. 333-53053, as amended,
have been previously issued. References herein to the term
"Registration Statement" as of any given date shall mean
registration statement No. and registration statement
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No. 333-53053, each as amended or supplemented to such date,
including all documents incorporated by reference therein as of
such date pursuant to Item 12 of Form S-3 ("Incorporated
Documents"). References herein to the term "Prospectus" as of
any given date shall mean the prospectus forming a part of
registration statement No. , as supplemented by a
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prospectus supplement relating to the Bonds proposed to be filed
pursuant to Rule 424 of the general rules and regulations under
the Securities Act ("Rule 424"), and as further amended or
supplemented as of such date (other than amendments or
supplements relating to First Mortgage Bonds other than the Bonds
or, when referring to the Prospectus relating to a particular
offering of the Bonds, Bonds other than the Bonds being offered
on such date), including all Incorporated Documents. References
herein to the term "Effective Date" shall be deemed to refer to
the later of the time and date that registration statement No.
was declared effective and of the filing of FPL's most
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recent Annual Report on Form 10-K if such filing is made prior to
the Closing Date (as hereafter defined). Prior to the
termination of the offering of the Bonds, FPL will not file any
amendment to the Registration Statement or any amendment or
supplement to the Prospectus without prior notice to the
Representatives and to Winthrop, Stimson, Xxxxxx & Xxxxxxx, who
are acting as counsel on behalf of the several Underwriters
("Counsel for the Underwriters"), or any such amendment or
supplement to which the Representatives shall reasonably object
in writing, or which shall be unsatisfactory to Counsel for the
Underwriters.
SECTION 1. Representations and Warranties of FPL. FPL
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represents and warrants to the several Underwriters that:
(a) The Registration Statement at the Effective Date
fully complied, and the Prospectus both on the date it is filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424 (such date, the "424 Date") and at the Closing Date (as
hereinafter defined), and the Registration Statement and the
Mortgage at the Closing Date, will fully comply, in all material
respects with the applicable provisions of the Securities Act and
the Trust Indenture Act of 1939, as amended (the "1939 Act"), as
applicable and, in each case, the applicable instructions, rules
and regulations of the Commission with respect thereto; at the
Effective Date, the Registration Statement did not, and at the
Closing Date, the Registration Statement will not, contain an
untrue statement of a material fact, or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus, at the 424
Date and at the Closing Date, will not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein, in
the light of the circumstances under which they were made, not
misleading; and the Incorporated Documents, when filed with the
Commission, fully complied or will fully comply in all material
respects with the applicable provisions of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the
applicable instructions, rules and regulations of the Commission
thereunder; provided, that the foregoing representations and
warranties in this subsection (a) shall not apply to statements
or omissions made in reliance upon and in conformity with
information furnished in writing to FPL by or on behalf of any
Underwriter for use in connection with the preparation of the
Registration Statement or the Prospectus, or to any statements in
or omissions from any Statement of Eligibility and Qualification
on Form T-1, or amendments thereto, of the Mortgage Trustee.
(b) The financial statements included as part of or
incorporated by reference in the Prospectus present fairly the
financial condition and operations of FPL at the respective dates
or for the respective periods to which they apply; such financial
statements have been prepared in each case in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved except as otherwise indicated in
the Registration Statement; and Deloitte & Touche LLP, who have
audited the audited financial statements, are independent public
accountants as required by the Securities Act and the Exchange
Act and the rules and regulations of the Commission thereunder.
(c) Except as reflected in or contemplated by the
Registration Statement and the Prospectus, since the respective
most recent dates as of which information is given in the
Registration Statement and Prospectus, there has not been any
material adverse change in the business, properties or financial
condition of FPL nor has any material transaction been entered
into by FPL other than changes and transactions contemplated by
the Registration Statement and Prospectus, and transactions in
the ordinary course of business. FPL has no material contingent
obligation which is not disclosed in the Registration Statement
and Prospectus.
(d) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof on the part
of FPL to be fulfilled have been duly authorized by all necessary
corporate action of FPL in accordance with the provisions of its
Restated Articles of Incorporation, as amended, (the "Charter"),
by-laws and applicable law, and the Bonds when issued and
delivered as provided herein will constitute legal, valid and
binding obligations of FPL in accordance with their terms, except
as limited or affected by bankruptcy, insolvency, reorganization,
receivership, moratorium or other laws affecting mortgagees' and
other creditors' rights generally and general principles of
equity.
(e) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof and the
compliance by FPL with all the terms and provisions of the
Mortgage will not result in a breach of any of the terms or
provisions of, or constitute a default under, FPL's Charter, by-
laws or any indenture, mortgage, deed of trust or other agreement
or instrument to which FPL is now a party, or violate any law or
any order, rule, decree or regulation applicable to FPL of any
Federal or state court, regulatory board or body or
administrative agency having jurisdiction over FPL or any of its
property, except where such breach, default or violation would
not have a material adverse effect on the business, properties or
financial condition of FPL.
(f) All the property to be subjected to the lien of
the Mortgage will be adequately described therein.
SECTION 2. Purchase and Sale. On the basis of the
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representations and warranties herein contained, and subject to
the terms and conditions in this agreement set forth, FPL agrees
to sell to the respective Underwriters named in Schedule A to the
Proposal, severally and not jointly, and the respective
Underwriters agree, severally and not jointly, to purchase from
FPL, the respective principal amounts of Bonds set forth opposite
their respective names in Schedule A to the Proposal at the
purchase price set forth in the Proposal.
SECTION 3. Public Offering. The Underwriters propose to
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make a bona fide public offering of the Bonds as set forth in the
Prospectus, such public offering to be made as soon after the
execution of this agreement as practicable, subject, however, to
the terms and conditions of this agreement.
SECTION 4. Time and Place of Closing, Default of
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Underwriter. Delivery of the Bonds and payment therefor by
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certified or official bank check or checks, payable to the order
of FPL in New York Clearing House or similar next day funds or by
wire transfer in federal funds (or in such other manner as may be
set forth in the Proposal), shall be made at the time, date and
place set forth in the Proposal, or at such other time, date or
place as shall be agreed upon in writing by FPL and the
Representatives. The hour and date of such delivery and payment
are herein called the "Closing Date".
The Bonds shall be delivered to the Representatives for the
respective accounts of the Underwriters in fully registered form
in such authorized denominations and registered in such names as
the Representatives may reasonably request in writing not later
than 12:30 p.m., New York City time, on the third business day
prior to the Closing Date, or to the extent not so requested,
registered in the names of the respective Underwriters in such
authorized denominations as FPL shall determine. For the purpose
of expediting the checking of the Bonds by the Representatives on
behalf of the Underwriters, FPL agrees to make such Bonds
available to the Representatives for such purpose at the office
of Xxxxxx Xxxx & Priest LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 not later than 2:00 p.m., New York City time, on the
business day preceding the Closing Date, or at such other time
and place as may be agreed upon by FPL and the Representatives.
If any Underwriter shall fail to purchase and pay for the
principal amount of the Bonds which such Underwriter has agreed
to purchase and pay for hereunder (otherwise than by reason of
any failure on the part of FPL to comply with any of the
provisions contained herein), the non-defaulting Underwriters
shall be obligated to take up and pay for (in addition to the
respective principal amount of the Bonds set forth opposite their
respective names in Schedule A to the Proposal) the principal
amount of the Bonds which such defaulting Underwriter or
Underwriters failed to take up and pay for, up to a principal
amount thereof equal to, in the case of each such remaining
Underwriter, ten percent (10%) of the principal amount of the
Bonds set forth opposite the name of such remaining Underwriter
in said Schedule A to the Proposal, and such remaining
Underwriters shall have the right, within 24 hours of receipt of
such notice, either to take up and pay for (in such proportion as
may be agreed upon among them), or to substitute another
Underwriter or Underwriters, satisfactory to FPL, to take up and
pay for, the remaining principal amount of the Bonds which the
defaulting Underwriter or Underwriters agreed but failed to
purchase. If any unpurchased Bonds still remain, then FPL shall
be entitled to a further period of 24 hours within which to
procure another party or other parties, members of the National
Association of Securities Dealers, Inc. (or, if not members of
such Association, who are not eligible for membership in said
Association and who agree (i) to make no sales within the United
States, its territories or its possessions or to persons who are
citizens thereof or residents therein and (ii) in making sales to
comply with said Association's Conduct Rules) and satisfactory to
the Representatives to purchase such Bonds on the terms set forth
in this agreement. In the event that, within the respective
prescribed periods, the non-defaulting Underwriters notify FPL
that they have arranged for the purchase of such Bonds, or FPL
notifies the non-defaulting Underwriters that it has arranged for
the purchase of such Bonds, the non-defaulting Underwriters or
FPL shall have the right to postpone the Closing Date for a
period of not more than three full business days beyond the
expiration of the respective prescribed periods in order to
effect whatever changes may thus be made necessary in the
Registration Statement or the Prospectus or in any other
documents or arrangements. In the event that neither the non-
defaulting Underwriters nor FPL has arranged for the purchase of
such Bonds by another party or parties as above provided, then
this agreement shall terminate without any liability on the part
of FPL or any Underwriter (other than an Underwriter which shall
have failed or refused, otherwise than for some reason sufficient
to justify, in accordance with the terms hereof, the cancellation
or termination of its obligations hereunder, to purchase and pay
for the Bonds which such Underwriter has agreed to purchase as
provided in Section 2 hereof), except as otherwise provided in
subsections (c) and (e) of Section 5 hereof.
SECTION 5. Covenants of FPL. FPL agrees that:
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(a) It will promptly transmit copies of the
Prospectus to the Commission for filing pursuant to Rule 424.
(b) It will deliver to the Representatives and to
Counsel for the Underwriters one signed copy of the Registration
Statement or, if a signed copy is not available, one conformed
copy of the Registration Statement certified by an officer of FPL
to be in the form as originally filed, including all Incorporated
Documents and all exhibits except those incorporated by
reference, which relate to the Bonds, including a signed or
conformed copy of each consent and certificate included therein
or filed as an exhibit thereto. FPL will deliver to the
Underwriters through the Representatives as soon as practicable
after the date of this agreement as many copies of the Prospectus
as the Representatives may reasonably request for the purposes
contemplated by the Securities Act. FPL will promptly advise the
Representatives of the issuance of any stop order under the
Securities Act with respect to the Registration Statement or the
institution of any proceedings therefor of which FPL shall have
received notice prior to the termination of the offering of the
Bonds hereunder. FPL will use its best efforts to prevent the
issuance of any such stop order and to secure the prompt removal
thereof, if issued.
(c) It will pay all expenses in connection with (i)
the preparation and filing by it of the Registration Statement
and Prospectus, (ii) the issuance and delivery of the Bonds as
provided in Section 4 hereof, (iii) the preparation, execution,
filing and recording of the Supplemental Indenture, and (iv) the
printing and delivery to the Representatives for the account of
the Underwriters, in reasonable quantities, of copies of the
Registration Statement and the Prospectus and the Supplemental
Indenture and will pay all taxes, if any (but not including any
transfer taxes), on the issuance of the Bonds and the recordation
of the Supplemental Indenture. FPL shall not, however, be
required to pay any amount for any expenses of the
Representatives or any of the Underwriters, except as provided in
Sections 6 and 7 hereof and except that if this agreement shall
be terminated in accordance with the provisions of Xxxxxxx 0, 0
xx 0 xxxxxx, XXX will pay the fees and disbursements of Counsel
for the Underwriters, whose fees and disbursements the
Underwriters agree to pay in any other event. FPL shall not in
any event be liable to any of the several Underwriters for
damages on account of loss of anticipated profits.
(d) During a period of nine months after the date of
this agreement, if any event relating to or affecting FPL or of
which FPL shall be advised in writing by the Representatives
shall occur which, in FPL's opinion, should be set forth in a
supplement to or an amendment of the Prospectus in order to make
the Prospectus not misleading in light of the circumstances when
it is delivered to a purchaser, FPL will forthwith at its expense
prepare and furnish to the Representatives a reasonable number of
copies of a supplement or supplements or an amendment or
amendments to the Prospectus which will supplement or amend the
Prospectus so that as supplemented or amended it will not include
any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein,
in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading; provided that should
such event relate solely to activities of any of the
Underwriters, then the Underwriters shall assume the expense of
preparing and furnishing copies of any such amendment or
supplement. In case any Underwriter is required to deliver a
Prospectus after the expiration of nine months after the date of
this agreement, FPL upon the request of the Representatives will
furnish to the Representatives, at the expense of such
Underwriter, a reasonable quantity of a supplemented or amended
Prospectus or supplements or amendments to the Prospectus
complying with Section 10 of the Securities Act.
(e) It will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the Bonds
for offer and sale under the blue sky laws of such jurisdictions
as the Representatives may designate and will pay filing fees in
the aggregate not exceeding $7,500, provided that FPL shall not
be required to qualify as a foreign corporation or dealer in
securities, or to file any consents to service of process under
the laws of any jurisdiction, or to meet other requirements
deemed by FPL to be unduly burdensome.
(f) It will make generally available to its security
holders, as soon as practicable, an earnings statement (which
need not be audited, unless required so to be under Section 11(a)
of the Securities Act) in reasonable detail covering the 12
months beginning not later than the first day of the quarter next
succeeding the month in which occurred the effective date of the
Registration Statement as defined in Rule 158 under the
Securities Act.
(g) On or before the Closing Date, it will, if
applicable, cause (i) at least one counterpart of the
Supplemental Indenture to be duly recorded in the States of
Florida or Georgia and (ii) all intangible and documentary stamp
taxes due in connection with the issuance of the Bonds and the
recording of the Supplemental Indenture to be paid. Within 30
days following the Closing Date, FPL will, if applicable, cause
the Supplemental Indenture to be duly recorded in all other
counties in which property of FPL is located.
SECTION 6. Conditions of Underwriters' Obligations. The
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several obligations of the Underwriters to purchase and pay for
the Bonds shall be subject to the accuracy of, and compliance
with, the representations and warranties of FPL contained herein
on the Closing Date, to the performance by FPL of its obligations
to be performed hereunder on or prior to the Closing Date and to
the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date; no
order of the Commission directed to the adequacy of any document
incorporated by reference shall have been issued; no proceedings
for either such purpose shall be pending before, or threatened
by, the Commission on such date; and the Representatives shall
have received, prior to payment for the Bonds, a certificate of
FPL dated the Closing Date to the effect that, to the best of its
knowledge, no such order is in effect and no proceedings for such
purpose are pending before, or to the knowledge of FPL threatened
by, the Commission.
(b) On the Closing Date, there shall be in full force
and effect an authorization of the Florida Public Service
Commission with respect to the issuance and sale of the Bonds on
the terms herein stated or contemplated, and containing no
provision unacceptable to the Representatives by reason of the
fact that it is materially adverse to FPL, it being understood
that no authorization provided to Counsel for the Underwriters
and in effect at the date of this agreement contains any such
unacceptable provision.
(c) At the Closing Date, the Representatives shall
have received from Steel Xxxxxx & Xxxxx LLP, counsel to FPL, a
favorable opinion (with a copy thereof for each of the
Underwriters), which opinion will not pass upon compliance with
provisions of the blue sky laws of any jurisdiction, in form and
substance satisfactory to Counsel for the Underwriters, to the
effect that:
(i) FPL is a validly organized and existing
corporation and is in good standing under the laws of the State
of Florida, and is doing business in that State, and has valid
franchises, licenses and permits adequate for the conduct of its
business;
(ii) FPL is a corporation duly authorized by its
Charter to conduct the business which it is now conducting as set
forth in the Prospectus; FPL is subject, as to retail rates and
services, issuance of securities, accounting and certain other
matters, to the jurisdiction of the Florida Public Service
Commission; and FPL is subject, as to wholesale rates, accounting
and certain other matters, to the jurisdiction of the Federal
Energy Regulatory Commission;
(iii) the Mortgage has been duly and validly
authorized by all necessary corporate action, has been duly and
validly executed and delivered, and is a valid and binding
instrument enforceable in accordance with its terms, except as
limited 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 Bonds are valid and binding obligations of
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 are entitled to the benefit of the security
afforded by the Mortgage;
(v) the Registration Statement, at the Effective
Date, and the Prospectus, at the 424 Date (except as to the
financial statements and other financial or statistical data
contained or incorporated by reference therein, upon which such
opinion need not pass and except for those parts of the
Registration Statement that constitute the Statement of
Eligibility and Qualification on Form T-1, upon which such
opinion need not pass), complied as to form in all material
respects with the applicable requirements of the Securities Act
and the applicable instructions, rules and regulations of the
Commission thereunder and the Incorporated Documents (except as
to the financial statements and other financial or statistical
data contained or incorporated by reference therein, upon which
such opinion need not pass), at the time they were filed with the
Commission, complied as to form in all material respects with the
applicable requirements of the Exchange Act and the applicable
instructions, rules and regulations of the Commission thereunder.
The Registration Statement has become, and is, at the Closing
Date, effective under the Securities Act, and to the best of the
knowledge of said counsel, no proceedings for a stop order with
respect thereto are pending or threatened under Section 8 of the
Securities Act;
(vi) the consummation of the transactions herein
contemplated and the fulfillment of the terms hereof and the
compliance by FPL with all the terms and provisions of the
Mortgage will not result in a breach of any of the terms or
provisions of, or constitute a default under, the Charter or by-
laws of FPL or any indenture, mortgage, deed of trust or other
agreement or instrument the terms of which are known to such
counsel to which FPL is now a party, except where such breach or
default would not have a material adverse effect on the business,
properties or financial condition of FPL;
(vii) nothing has come to the attention of said
counsel that would lead them to believe that the Registration
Statement (except as to financial statements and other financial
or statistical data contained or incorporated by reference
therein, upon which such opinion need not pass and except for
those parts of the Registration Statement that constitute the
Statement of Eligibility and Qualification on Form T-1, upon
which such opinion need not pass), at the Effective Date,
contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus, at the 424 Date, and at the Closing Date (except as
aforesaid) included or includes, any untrue statement of a
material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
provided that such counsel may state that their belief is based
upon their participation in the preparation of the Registration
Statement and the Prospectus and any supplements and amendments
thereto and review and discussion of the contents thereof, but is
without independent check or verification except as specified;
(viii) the Bonds are being issued and sold pursuant
to the authority contained in orders of the Florida Public
Service Commission, which authority is adequate to permit the
issuance and sale of the Bonds. To the best of the knowledge of
said counsel, said authorization is still in full force and
effect, and no further approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the provisions of the blue sky laws of any
jurisdiction) is legally required for the authorization of the
issuance and sale of the Bonds;
(ix) the Bonds conform, as to legal matters, with the
statements concerning them made under the headings "Description
of Bonds" and "Certain Terms of the Offered Bonds" in the
Prospectus;
(x) the Mortgage is duly qualified under the 1939
Act;
(xi) this agreement has been duly and validly
authorized, executed and delivered by FPL;
(xii) if Bonds are to be sold pursuant to this
agreement on the Closing Date, as to the Mortgaged and Pledged
Property, as defined in the Mortgage, FPL has satisfactory title
to any easements and personal properties, and good and marketable
or insurable title in fee simple to any other real properties
(except as FPL's interest is stated to be otherwise), subject
only to Excepted Encumbrances, as defined in the Mortgage, to any
lien, if any, existing or placed thereon at the time of
acquisition thereof by FPL, to minor defects and encumbrances
customarily found in the case of properties of like size and
character and which, in the opinion of said counsel, would not
impair the use thereof by FPL (all of which title exceptions,
encumbrances, liens and defects are hereinafter referred to as
"Exceptions"), and to the lien of the Mortgage; the Mortgage
constitutes a valid, direct, and first mortgage lien upon the
Mortgaged and Pledged Property now owned by FPL, subject,
however, to the Exceptions and as set forth in the last sentence
of this paragraph; and the description of properties in the
Mortgage is adequate to constitute the Mortgage a lien on
Mortgaged and Pledged Property hereafter acquired by FPL,
subject, however, to the Exceptions and except as limited or
affected by bankruptcy, insolvency, reorganization, receivership,
moratorium or other laws affecting mortgagees' and other
creditors' rights generally and general principles of equity.
The Supplemental Indenture is in proper form for recording in all
places required; and upon such recording, the Supplemental
Indenture will constitute adequate record notice to perfect the
lien of the Mortgage as to all Mortgaged and Pledged Property
acquired by FPL subsequent to the recording of the
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Supplemental Indenture and prior to the recording of the
Supplemental Indenture;
(xiii) except as stated or referred to in the
Prospectus, there are no material pending legal proceedings to
which FPL is a party or of which property of FPL is the subject
which if determined adversely would have a material adverse
effect on FPL, and, to the best of the knowledge of said counsel,
no such proceeding is known to be contemplated by governmental
authorities; and
(xiv) the information contained in the Prospectus,
which is stated therein to have been made in reliance upon the
authority of said counsel or is specifically attributed to them,
has been reviewed by them and is correct.
In said opinion such counsel may rely as to all matters
of New York law on an opinion of 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.
(d) At the Closing Date, the Representatives shall
have received from Xxxxxx Xxxx & Priest LLP, counsel to FPL, a
favorable opinion (with a copy thereof for each of the
Underwriters), which opinion will not pass upon compliance with
provisions of the blue sky laws of any jurisdiction, in form and
substance satisfactory to Counsel for the Underwriters, to the
same effect with respect to matters enumerated in paragraphs
(iii) through (xi) in subsection (c) of this Section 6. In said
opinion such Counsel may rely as to all matters of Florida law on
the opinion of Steel Xxxxxx & Xxxxx LLP.
(e) At the Closing Date, the Representatives shall
have received from Counsel for the Underwriters a favorable
opinion (with a copy thereof for each of the Underwriters) to the
same effect with respect to the matters enumerated in (iii) - (v)
and (vii) - (xi) of subsection (c) of this Section 6 as the
opinion required by said subsection (c). In said opinion such
counsel may rely as to all matters of Florida law on the opinion
of Steel Xxxxxx & Xxxxx LLP, and will not pass upon the
incorporation of FPL, titles to property, franchises or the lien
of the Mortgage.
(f) At the Closing Date, the Representatives shall
have received from Deloitte & Touche LLP a letter (with copies
thereof for each of the Underwriters) to the effect that (i) they
are independent public accountants with respect to FPL within the
meaning of the Securities Act and the Exchange Act and the
applicable published rules and regulations thereunder; (ii) in
their opinion, the consolidated financial statements audited by
them and incorporated by reference in the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and the
published rules and regulations thereunder; (iii) on the basis of
a reading of the unaudited condensed consolidated financial
statements of FPL incorporated by reference in the Prospectus,
the latest available interim unaudited consolidated financial
statements of FPL since the close of FPL's most recent audited
fiscal year, the minutes and consents of the Board of Directors,
the Finance Committee of the Board of Directors, the Stock
Issuance Committee of the Board of Directors, and the Shareholder
of FPL since the end of the most recent audited fiscal year, and
inquiries of officials of FPL who have responsibility for
financial and accounting matters (it being understood that the
foregoing procedures do not constitute an audit made in
accordance with generally accepted auditing standards and they
would not necessarily reveal matters of significance with respect
to the comments made in such letter, and accordingly that
Deloitte & Touche LLP make no representation as to the
sufficiency of such procedures for the several Underwriters'
purposes), nothing has come to their attention which caused them
to believe that (a) the unaudited condensed consolidated
financial statements of FPL incorporated by reference in the
Prospectus (1) do not comply as to form in all material respects
with the applicable accounting requirements of the Securities Act
and the Exchange Act and the published rules and regulations
thereunder and (2) except as disclosed in the Prospectus are not
in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited consolidated financial statements of FPL incorporated by
reference in the Prospectus, (b) at the date of the latest
available interim balance sheet read by them and at a specified
date not more than five days prior to the Closing Date there was
any change in the common stock or additional paid-in capital,
increase in the preferred stock or long-term debt of FPL and its
subsidiaries, or decrease in their net assets, in each case as
compared with amounts shown in the most recent consolidated
balance sheet incorporated by reference in the Prospectus, except
in all instances for changes, 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 available interim balance sheet read
by them to a specified date not more than five days prior to the
Closing Date, there were any decreases, as compared with the
corresponding period in the preceding year, in total consolidated
operating revenues or in net income or net income available to
FPL Group, Inc., except in all instances for decreases which the
Prospectus discloses have occurred or may occur, or which are
described in such letter; and (iv) they have carried out certain
procedures and made certain findings, as specified in such
letter, with respect to certain amounts included in the
Prospectus and Exhibit 12 to the Registration Statement and such
other items as the Representatives may reasonably request.
(g) Since the respective most recent dates as of
which information is given in the Registration Statement and
Prospectus and up to the Closing Date, there shall have been no
material adverse change in the business, properties or financial
condition of FPL, except as reflected in or contemplated by the
Registration Statement and Prospectus, and since such dates and
up to the Closing Date, there shall have been no material
transaction entered into by FPL other than transactions disclosed
by the Registration Statement and the Prospectus and transactions
in the ordinary course of business; and at the Closing Date, the
Representatives shall have received a certificate to such effect,
signed by FPL.
(h) All legal proceedings to be taken in connection
with the issuance and sale of the Bonds shall have been
satisfactory in form and substance to Counsel for the
Underwriters.
In case any of the conditions specified above in this
Section 6 shall not have been fulfilled, this agreement may be
terminated by the Representatives, upon mailing or delivering
written notice thereof to FPL. Any such termination shall be
without liability of any party to any other party except as
otherwise provided in subsections (c) and (e) of Section 5 hereof
and except that in the event of such termination by the
Representatives, FPL shall reimburse the Underwriters for out-of-
pocket expenses reasonably incurred by them in connection with
the transactions contemplated by this agreement, not in excess,
however, of an aggregate of $5,000.
SECTION 7. Conditions of FPL's Obligations. The
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obligation of FPL to deliver the Bonds shall be subject to the
following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, and no order directed to the adequacy of
any document incorporated by reference, shall be in effect at the
Closing Date, and no proceedings for either such purpose shall be
pending before, or threatened by, the Commission on such date.
(b) On the Closing Date there shall be in full force
and effect an authorization of the Florida Public Service
Commission with respect to the issuance and sale of the Bonds on
the terms herein stated or contemplated, and containing no
provision unacceptable to FPL by reason of the fact that it is
materially adverse to FPL, it being understood that no
authorization in effect at the date of this agreement contains
any such unacceptable provision.
In case any of the conditions specified in this Section 7
shall not have been fulfilled, this agreement may be terminated
by FPL upon mailing or delivering written notice thereof to the
Representatives. Any such termination shall be without liability
of any party to any other party, except as otherwise provided in
subsections (c) and (e) of Section 5 hereof and except that in
the event of such termination by FPL, FPL shall reimburse the
Underwriters for out-of-pocket expenses reasonably incurred by
them in connection with the transactions contemplated by this
agreement, not in excess, however, of an aggregate of $5,000.
SECTION 8. Indemnification.
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(a) FPL agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within
the meaning of Section 15 of the Securities Act against any and
all losses, claims, damages or liabilities, joint or several, to
which it or any of them may become subject under the Securities
Act or any other statute or common law, and to reimburse each
such Underwriter and controlling person for any legal or other
expenses (including, to the extent hereinafter provided,
reasonable counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or liabilities or
in connection with defending any actions, insofar as such losses,
claims, damages, liabilities, expenses or actions arise out of or
are based upon any untrue statement or alleged untrue statement
of a material fact contained in any preliminary prospectus (if
used prior to the Effective Date), including all Incorporated
Documents, or in the Registration Statement or the Prospectus, or
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the indemnity
agreement contained in this paragraph shall not apply to any such
losses, claims, damages, liabilities, expenses or actions arising
out of, or based upon, any such untrue statement or alleged
untrue statement, or any such omission or alleged omission, if
such statement or omission was made in reliance upon and in
conformity with information furnished herein or to FPL in writing
by or on behalf of any Underwriter, through the Representatives
or otherwise, for use in connection with the preparation of the
Registration Statement or the Prospectus or any amendment or
supplement to either thereof, or arising out of, or based upon,
statements in or omissions from the Statement of Eligibility and
Qualification on Form T-1 of the Mortgage Trustee and provided,
further, that the indemnity agreement contained in this paragraph
in respect of any preliminary prospectus shall not inure to the
benefit of any Underwriter (or of any person controlling such
Underwriter) on account of any such losses, claims, damages,
liabilities, expenses or actions arising from the sale of the
Bonds to any person if such Underwriter shall have failed to send
or give to such person (i) with or prior to the written
confirmation of such sale, a copy of the Prospectus or the
Prospectus as amended or supplemented, if any amendments or
supplements thereto shall have been furnished at or prior to the
time of written confirmation of the sale involved, but exclusive
of any Incorporated Documents unless, with respect to the
delivery of any amendment or supplement, the alleged omission or
alleged untrue statement is not corrected in such amendment or
supplement at the time of confirmation, or (ii) with or prior to
the delivery of such Bonds to such person, a copy of any
amendment or supplement to the Prospectus which shall have been
furnished subsequent to such written confirmation and prior to
the delivery of such Bonds to such person, exclusive of any
Incorporated Documents unless, with respect to the delivery of
any amendment or supplement, the alleged omission or alleged
untrue statement was not corrected in such amendment or
supplement at the time of such delivery. The indemnity agreement
of FPL contained in this paragraph and the representations and
warranties of FPL contained in Section 1 hereof shall remain
operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or any such
controlling person, and shall survive the delivery of the Bonds.
The Underwriters agree promptly to notify FPL, and each other
Underwriter, of the commencement of any litigation or proceedings
against them or any of them or any such controlling person in
connection with the issuance and sale of the Bonds.
(b) Each Underwriter agrees to indemnify and hold
harmless FPL, its officers and directors, and each person who
controls any thereof within the meaning of Section 15 of the
Securities Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may
become subject under the Securities Act or other statute or
common law, and to reimburse each of them for any legal or other
expenses (including, to the extent hereinafter provided,
reasonable counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or liabilities, or
in connection with defending any actions, insofar as such losses,
claims, damages, liabilities, expenses or actions arise out of or
are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or
Prospectus or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading if such statement or
omission was made in reliance upon and in conformity with
information furnished herein or to FPL in writing by or on behalf
of such Underwriter, through the Representatives or otherwise,
for use in connection with the preparation of the Registration
Statement or the Prospectus or any amendment or supplement to
either thereof. The indemnity agreement of the respective
Underwriters contained in this paragraph shall remain operative
and in full force and effect, regardless of any investigation
made by or on behalf of FPL or any of its officers or directors
or any such other Underwriter or any such controlling person, and
shall survive the delivery of the Bonds. FPL agrees promptly to
notify the Representatives of the commencement of any litigation
or proceedings against FPL (or any controlling person thereof) or
any of its officers or directors in connection with the issuance
and sale of the Bonds.
(c) FPL and the several Underwriters each agree that,
upon the receipt of notice of the commencement of any action
against it, its officers and directors, or any person controlling
it as aforesaid, in respect of which indemnity may be sought on
account of any indemnity agreement contained herein, it will
promptly give written notice of the commencement thereof to the
party or parties against whom indemnity shall be sought
thereunder, but the omission so to notify such indemnifying party
or parties of any such action shall not relieve such indemnifying
party or parties from any liability which it or they may have to
the indemnified party otherwise than on account of such indemnity
agreement. In case such notice of any such action shall be so
given, such indemnifying party shall be entitled to participate
at its own expense in the defense or, if it so elects, to assume
(in conjunction with any other indemnifying parties) the defense
of such action, in which event such defense shall be conducted by
counsel chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall be
defendant or defendants in such action, and such defendant or
defendants shall bear the fees and expenses of any additional
counsel retained by them; but if the indemnifying party shall
elect not to assume the defense of such action, such indemnifying
party will reimburse such indemnified party or parties for the
reasonable fees and expenses of any counsel retained by them;
provided, however, if the defendants in any such action include
both the indemnified party and the indemnifying party and counsel
for the indemnifying party shall have reasonably concluded that
there may be a conflict of interest involved in the
representation by such counsel of both the indemnifying party and
the indemnified party, the indemnified party or parties shall
have the right to select separate counsel, satisfactory to the
indemnifying party, to participate in the defense of such action
on behalf of such indemnified party or parties (it being
understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel
representing the indemnified parties who are parties to such
action).
SECTION 9. Termination. This agreement may be
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terminated by the Representatives by delivering written notice
thereof to FPL, at any time prior to the Closing Date if (a)
after the date hereof and at or prior to the Closing Date there
shall have occurred any general suspension of trading in
securities on the New York Stock Exchange, Inc. or there shall
have been established by the New York Stock Exchange, Inc. or by
the Commission or by any federal or state agency or by the
decision of any court any limitation on prices for such trading
or any restrictions on the distribution of securities, or a
general banking moratorium declared by New York or federal
authorities, or (b) there shall have occurred any new outbreak of
hostilities including, but not limited to, an escalation of
hostilities which existed prior to the date of this agreement or
other national or international calamity or crisis, the effect of
any such event specified in (a) or (b) above on the financial
markets of the United States shall be such as to make it
impracticable for the Underwriters to enforce contracts for the
sale of the Bonds. This agreement may also be terminated at any
time prior to the Closing Date if in the judgment of the
Representatives the subject matter of any amendment or supplement
to the Registration Statement or Prospectus prepared and
furnished by FPL reflects a material adverse change in the
business, properties or financial condition of FPL which renders
it either inadvisable to proceed with such offering, if any, or
inadvisable to proceed with the delivery of the Bonds to be
purchased hereunder. Any termination of this agreement pursuant
to this Section 9 shall be without liability of any party to any
other party except as otherwise provided in subsections (c) and
(e) of Section 5 hereof.
SECTION 10. Miscellaneous. The validity and
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interpretation of this agreement shall be governed by the law of
the State of New York. This agreement shall inure to the benefit
of FPL, the several Underwriters and, with respect to the
provisions of Section 8 hereof, each controlling person referred
to in said Section 8, and their respective successors. Nothing
in this agreement is intended or shall be construed to give to
any other person, firm or corporation any legal or equitable
right, remedy or claim under or in respect of this agreement or
any provision herein contained. The term "successors" as used in
this agreement shall not include any purchaser, as such
purchaser, of any Bonds from any of the several Underwriters.
SECTION 11. Notices. All communications hereunder shall
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be in writing or by telegram and, if to the Underwriters, shall
be mailed or delivered to the Representatives at the address set
forth in the Proposal hereto, or if to FPL, shall be mailed or
delivered to it at 000 Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxx
00000, attention: Treasurer.
