EXHIBIT 1(a)
FLORIDA POWER & LIGHT COMPANY
FORM OF PROPOSAL
Submission Deadline:
1 p.m.
$135,000,000
First Mortgage Bonds
7.05% Series
Due December 1, 2026
Proceeds to FPL: 98.021% Per Bond
plus accrued interest from
December 1, 1993
to the date of delivery
December 6, 1993
Ms. Dilek L. Samil, Treasurer
Florida Power & Light Company
700 Universe Boulevard
Juno Beach, Florida 33408
Florida Power & Light Company (FPL) has invited proposals for the
purchase of $135 million principal amount of its First Mortgage Bonds.
It is understood that FPL will either accept one proposal for the
purchase of $135 million principal amount of First Mortgage Bonds to be
due December 1, 2026 (the "First Mortgage Bonds") or will reject all
proposals.
Such proposals are to be communicated by telephone to FPL as per the
Request for Proposals letter dated November 9, 1993 ("Letter") no later
than the Pricing Time (as defined in the Letter). Upon acceptance by
FPL of a proposal, the designated firm shall immediately transmit by
facsimile a completed and executed Form of Proposal to FPL at (407) 694-
6299, attention: Peter D. Boylan, Assistant Treasurer. The redemption
provisions and other terms associated with such First Mortgage Bonds are
set forth in the Form of Prospectus Supplement (draft of
December 6, 1993) and in the Prospectus dated April 28, 1993 for the
First Mortgage Bonds.
The firms or corporations named in the attached Schedule A (Prospective
Purchasers) submit the following proposal:
1. The stated annual interest to be borne by the First Mortgage Bonds
expressed as a percentage of the principal amount thereof shall be as set
forth above; and each of the Prospective Purchasers, severally, hereby
offers to purchase the principal amount of First Mortgage Bonds set
forth opposite its name in Schedule A attached hereto from FPL at 98.021%
of the principal amount thereof, plus accrued interest from December 1,
1993 to the date of delivery, upon the terms and conditions set forth
in the attached Underwriting Agreement.
2. The Prospective Purchasers agree that (a) their offer included in
this proposal shall be irrevocable until one hour after the Pricing Time,
New York time unless such proposal is sooner rejected by FPL; (b) if
this proposal shall be accepted by FPL, they will forthwith furnish to
FPL all information which is required to complete the Prospectus Supplement;
and (c) if this proposal shall be accepted by FPL by execution and delivery
of the same, the accepted proposal and the attached Underwriting Agreement
shall together thereupon become effective without any separate execution of
such Underwriting Agreement and shall constitute the agreement between
FPL and the Prospective Purchasers, and all rights of FPL and the
Prospective Purchasers shall be determined solely in accordance with the
terms thereof, subject, however, to such modifications therein as may be
necessary and as may be mutually agreed upon by FPL and the Prospective
Purchasers.
3. Within one hour after the Pricing Time, New York time, FPL may
accept at its option the proposal which provides it with the lowest effective
interest cost or reject all proposals. The effective interest cost will
be determined as set forth in the Letter. This proposal shall be deemed
rejected by FPL if it shall not have been accepted by FPL one hour after the
Pricing Time, New York time, and FPL reserves the right in its sole
discretion to reject any and all proposals.
In case two or more proposals provide the identical effective
interest cost, FPL (unless it rejects all proposals) will give the
bidders of such identical bids an opportunity to improve their
proposals. If no improved proposals shall be made by such bidders
within the time specified by FPL, or if upon the submission of such
revised proposals, two or more of such proposals provide FPL with the
identical lowest effective interest cost, FPL may accept any one of such
identical proposals at its discretion. FPL reserves the right to reject
any and all proposals.
4. The validity and interpretation of this proposal shall be
governed by the laws of the State of New York.
5. Each of the Prospective Purchasers acknowledges receipt of a
copy of the Letter, the Form of Prospectus Supplement (draft of
December 6, 1993), the Prospectus dated April 28, 1993 and the
Underwriting Agreement.
6. The undersigned state that, if this proposal is accepted, the
expected initial offering price to the public of the First Mortgage Bonds
shall not exceed the purchase price to be paid to FPL pursuant to
paragraph 1 above (excluding accrued interest) plus 7/8% of the principal
amount of such First Mortgage Bonds.
7. The delivery of the First Mortgage Bonds and payment therefor will
be at 9:00 a.m. on a day not later than 10 business days subsequent to
the Pricing Date, at the offices of Reid & Priest, 28th Floor, 40 West
57th Street, New York, New York 10019.
Very truly yours,
For Themselves and as
Representative(s)
By: GOLDMAN, SACHS & CO.
Title: Goldman, Sachs & Co.
Address: 85 Broad Street
New York, New York 10004
This proposal for the purchase of $135 million principal amount of First
Mortgage Bonds is accepted as of the date set forth below:
Florida Power & Light Company
By: PETER D. BOYLAN
Assistant Treasurer
Date:December 6, 1993
This Form of Proposal must be completed, signed and submitted with the
attached Schedule A completed. A copy of the Prospective Purchaser's
Questionnaire must have been previously provided to FPL, c/o Reid &
Priest, by each Prospective Purchaser.
SCHEDULE A
Prospective Purchaser Principal Amount
GOLDMAN, SACHS & CO. $135,000,000
TOTAL $135,000,000
Exhibit A
December 6, 1993
Ms. Dilek Samil, Treasurer
Florida Power & Light Company
700 Universe Boulevard
Juno Beach, Florida 33408-0420
Dear Ms. Samil:
The following information is provided to FPL by and on behalf of the
undersigned:
(1) the Underwriting Discount shall be .400%
of the principal amount of the bonds; and
(2) the price to the public shall be 98.421%
of the principal amount of the bonds.
FPL is authorized to use this information in the preparation of the
Prospectus Supplement in connection with the offer and sale of
$135,000,000 of First Mortgage Bonds, 7.05% Series due December 1, 2026.
Very truly yours,
GOLDMAN, SACHS & CO.
By: Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
FLORIDA POWER & LIGHT COMPANY
$135 Million Principal Amount of First Mortgage Bonds
7.05% Series due December 1, 2026
Underwriting Agreement
December 6, 1993
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, and The Florida
National Bank of Jacksonville (now resigned), as heretofore supplemented
and as it will be further supplemented by a supplemental indenture
relating to the Bonds ("Supplemental Indenture") in substantially the
form heretofore delivered to the Representatives. Such Mortgage and
Deed of Trust as it has been and will be so supplemented is hereinafter
called the "Mortgage".
FPL has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3, including a
prospectus ("registration statement No. 33-61390"), for the registration
of $1,220,300,000 aggregate principal amount of its First Mortgage Bonds
("First Mortgage Bonds") under the Securities Act of 1933, as amended
(the "Securities Act"), which registration statement has been declared
effective by the Commission. References herein to the term
"Registration Statement" as of any given date shall mean registration
statement No. 33-61390, 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. 33-61390, as supplemented by a 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. 33-61390 was declared effective and
of the filing of FPL's most recent Annual Report on Form 10-K. 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, Putnam & Roberts, 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 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 the Statement of Eligibility
and Qualification on Form T-1, or amendments thereto, of the
Trustee under the Mortgage.
(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, who have audited
the audited financial statements, are independent public
accountants as required by the Securities Act and the Exchange Act
and the rules and regulations of the Commission thereunder.
(c) Except as reflected in or contemplated by the Registration
Statement and the Prospectus, since the respective most recent
dates as of which information is given in the Registration
Statement and Prospectus, there has not been any material adverse
change in the business, properties or financial condition of FPL
nor has any material transaction been entered into by FPL other
than changes and transactions contemplated by the Registration
Statement and Prospectus, and transactions in the ordinary course
of business. FPL has no material contingent obligation which is
not disclosed in the Registration Statement and Prospectus.
(d) The consummation of the transactions herein contemplated
and the fulfillment of the terms hereof on the part of FPL to be
fulfilled have been duly authorized by all necessary corporate
action of FPL in accordance with the provisions of its Restated
Articles of Incorporation, as amended, (the "Charter"), by-laws and
applicable law, and the Bonds when issued and delivered as provided
herein will constitute legal, valid and binding obligations of FPL
in accordance with their terms, except as limited by bankruptcy,
insolvency or other laws affecting mortgagees' and other creditors'
rights generally and equitable limitations on the enforceability of
specific remedies.
(e) The consummation of the transactions herein contemplated
and the fulfillment of the terms hereof and the compliance by FPL
with all the terms and provisions of the Mortgage will not result
in a breach of any of the terms or provisions of, or constitute a
default under, FPL's Charter, by-laws or any indenture, mortgage,
deed of trust or other agreement or instrument to which FPL is now
a party, or violate any law or any order, rule, decree or
regulation applicable to FPL of any Federal or state court,
regulatory board or body or administrative agency having
jurisdiction over FPL or any of its property, except where such
breach, default or violation would not have a material adverse
effect on the business, properties or financial condition of FPL.
(f) All the property to be subjected to the lien of the
Mortgage will be adequately described therein.
SECTION 2. Purchase and Sale. On the basis of the 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 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 Underwriter.
Delivery of the Bonds and payment therefor by
certified or official bank check or checks, payable to the order of FPL
in New York Clearing House or similar next day funds, 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 Bankers Trust Company, 4 Albany Street, New York, New York,
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 Rules of Fair Practice) and
satisfactory to the Representatives to purchase such Bonds on the terms
herein set forth. 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:
(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 Section 6, 7 or 9 hereof, FPL 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 $5,000, 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) FPL 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, FPL will 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 shall 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 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 Hector & Davis, counsel to FPL, a favorable
opinion (with a copy thereof for each of the Underwriters), which
opinion will not pass upon compliance with provisions of the blue
sky laws of any jurisdiction, in form and substance satisfactory to
Counsel for the Underwriters, to the effect that:
(i) FPL is a validly organized and existing corporation and is
in good standing under the laws of the State of Florida, and is
doing business in that State, and has valid franchises, licenses
and permits adequate for the conduct of its business;
(ii) FPL is a corporation duly authorized by its Charter to
conduct the business which it is now conducting as set forth in
the Prospectus; FPL is subject, as to retail rates and services,
issuance of securities, accounting and certain other matters, to
the jurisdiction of the Florida Public Service Commission; and
FPL is subject, as to wholesale rates, accounting and certain
other matters to the jurisdiction of the Federal Energy
Regulatory Commission;
(iii) the Mortgage has been duly and validly authorized by all
necessary corporate action, has been duly and validly executed
and delivered, and is a valid and binding instrument enforceable
in accordance with its terms, except as limited by bankruptcy,
insolvency or other laws affecting mortgagees' and other
creditors' rights generally and equitable limitations on the
enforceability of specific remedies;
(iv) the Bonds are valid and binding obligations of FPL in
accordance with their terms, except as limited by bankruptcy,
insolvency or other laws affecting mortgagees' and other
creditors' rights generally and equitable limitations on the
enforceability of specific remedies, and are entitled to the
benefit of the security afforded by the Mortgage;
(v) the Registration Statement, at the Effective Date, and the
Prospectus, at the 424 Date (except as to the financial
statements and other financial or statistical data contained or
incorporated by reference therein, upon which such opinion need
not pass), 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), at the Effective Date,
contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus, at the 424 Date, and at the Closing Date (except as
aforesaid) included or includes, any untrue statement of a
material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, provided that such counsel may state that their
belief is based upon their participation in the preparation of
the Registration Statement and the Prospectus and any
supplements and amendments thereto and review and discussion of
the contents thereof, but is without independent check or
verification except as specified;
(viii) the Bonds are being issued and sold pursuant to the
authority contained in an order of the Florida Public Service
Commission, which authority is adequate to permit the issuance
and sale of the Bonds. To the best of the knowledge of said
counsel, said authorization is still in full force and effect,
and no further approval, authorization, consent or order of any
public board or body (other than in connection or in compliance
with the provisions of the blue sky laws of any jurisdiction) is
legally required for the authorization of the issuance and sale
of the Bonds;
(ix) the Bonds conform, as to legal matters, with the
statements concerning them made under the headings "New Bonds"
and "Certain Terms of the Offered Bonds" in the Prospectus;
(x) the Mortgage is duly qualified under the 1939 Act;
(xi) this agreement has been duly and validly authorized,
executed and delivered by FPL;
(xii) as to the Mortgaged and Pledged Property, as defined in
the Mortgage, FPL has satisfactory title to any easements and
personal properties, and good and marketable or insurable title
in fee simple to any other real properties (except as FPL's
interest is stated to be otherwise), subject only to Excepted
Encumbrances, as defined in the Mortgage, to any lien, if any,
existing or placed thereon at the time of acquisition thereof by
FPL, to minor defects and encumbrances customarily found in the
case of properties of like size and character and which, in the
opinion of said counsel, would not impair the use thereof by FPL
(all of which title exceptions, encumbrances, liens and defects
are hereinafter referred to as "Exceptions"), and to the lien of
the Mortgage; the Mortgage constitutes a valid, direct, and
first mortgage lien upon the Mortgaged and Pledged Property now
owned by FPL, subject, however, to the Exceptions and as set
forth in the last sentence of this paragraph; and the
description of properties in the Mortgage is adequate to
constitute the Mortgage a lien on Mortgaged and Pledged Property
hereafter acquired by FPL, subject, however, to the Exceptions
and except as limited by bankruptcy, insolvency or other laws
affecting mortgagees' and other creditors' rights generally and
equitable limitations on the enforceability of specific
remedies. The Supplemental Indenture is in proper form for
recording in all places required; and upon such recording, the
Supplemental Indenture will constitute adequate record notice to
perfect the lien of the Mortgage as to all Mortgaged and Pledged
Property acquired by FPL subsequent to the recording of the
Ninety-third 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 Reid & Priest and as to matters
relating to Mortgaged and Pledged Property located in the State
of Georgia, on an opinion of Smith, Gambrell & Russell.
(d) At the Closing Date, the Representatives shall have
received from Reid & Priest, 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 Hector & Davis.
(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
Hector & Davis, 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 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 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 make no representation as to the sufficiency of such
procedures for the several Underwriters' purposes), nothing has
come to their attention which caused them to believe that (a) the
unaudited condensed consolidated financial statements of FPL
incorporated by reference in the Prospectus (1) do not comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and the
published rules and regulations thereunder and (2) except as
disclosed in the Prospectus are not in conformity with generally
accepted accounting principles applied on a basis substantially
consistent with that of the audited consolidated financial
statements of FPL incorporated by reference in the Prospectus, (b)
at the date of the latest available interim balance sheet read by
them and at a specified date not more than five days prior to the
Closing Date there was any change in the common stock, additional
paid-in capital, preferred stock or long-term debt of FPL and its
subsidiaries, or decrease in their net assets, in each case as
compared with amounts shown in the most recent consolidated balance
sheet incorporated by reference in the Prospectus, except in all
instances for changes or decreases which the Prospectus discloses
have occurred or may occur, or as occasioned by the declaration,
provision for, or payment of dividends, or which are described in
such letter, or (c) for the period from the date of the most recent
consolidated balance sheet incorporated by reference in the
Prospectus to the latest available interim balance sheet read by
them and for the period from the date of the latest available
interim balance sheet read by them to a specified date not more
than five days prior to the Closing Date, there were any decreases,
as compared with the corresponding period in the preceding year, in
total consolidated operating revenues or in net income or net
income available to FPL Group, Inc., except in all instances for
decreases which the Prospectus discloses have occurred or may
occur, or which are described in such letter; and (iv) they have
carried out certain procedures and made certain findings, as
specified in such letter, with respect to certain amounts included
in the Prospectus and Exhibit 12 to the Registration Statement and
such other items as the Representatives may reasonably request.
(g) Since the respective most recent dates as of which
information is given in the Registration Statement and Prospectus
and up to the Closing Date, there shall have been no material
adverse change in the business, properties or financial condition
of FPL, except as reflected in or contemplated by the Registration
Statement and Prospectus, and since such dates and up to the
Closing Date, there shall have been no material transaction entered
into by FPL other than transactions disclosed by the Registration
Statement and the Prospectus and transactions in the ordinary
course of business; and at the Closing Date, the Representatives
shall have received a certificate to such effect, signed by FPL.
(h) All legal proceedings to be taken in connection with the
issuance and sale of the Bonds shall have been satisfactory in form
and substance to Counsel for the Underwriters.
In case any of the conditions specified above in this Section 6
shall not have been fulfilled, this agreement may be terminated by the
Representatives, upon mailing or delivering written notice thereof to
FPL. Any such termination shall be without liability of any party to
any other party except as otherwise provided in subsections (c) and (e)
of Section 5 hereof
and except that in the event of such termination by the Representatives,
FPL shall reimburse the Underwriters for out-of-pocket expenses
reasonably incurred by them in connection with the transactions
contemplated by this agreement, not in excess, however, of an aggregate
of $5,000.
SECTION 7. Conditions of FPL's Obligations. The 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.
(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 they or
any of them may become subject under the Securities Act or any
other statute or common law, and to reimburse each such Underwriter
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
of the Registration Statement), including all Incorporated
Documents, or in the Registration Statement or the Prospectus, or
in the Registration Statement or Prospectus, as they may be 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 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 Exhibits 26(a) and 26(b) to the
Registration Statement which shall constitute the Statements of
Eligibility and Qualification on Form T-1 of the Trustee under the
Mortgage 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 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 to FPL in writing by or on behalf
of such Underwriter, through the Representatives or otherwise, for
use in connection with the preparation of the Registration
Statement or the Prospectus or any amendment or supplement to
either thereof. The indemnity agreement of the respective
Underwriters contained in this paragraph shall remain operative and
in full force and effect, regardless of any investigation made by
or on behalf of FPL or any of its officers or directors or any such
other Underwriter or any such controlling person, and shall survive
the delivery of the Bonds. FPL agrees promptly to notify the
Representatives of the commencement of any litigation or
proceedings against FPL (or any controlling person thereof) or any
of its officers or directors in connection with the issuance and
sale of the Bonds.
(c) FPL and the several Underwriters each agree that, upon the
receipt of notice of the commencement of any action against it, its
officers and directors, or any person controlling it as aforesaid,
in respect of which indemnity may be sought on account of any
indemnity agreement contained herein, it will promptly give written
notice of the commencement thereof to the party or parties against
whom indemnity shall be sought thereunder, but the omission so to
notify such indemnifying party or parties of any such action shall
not relieve such indemnifying party or parties from any liability
which it or they may have to the indemnified party otherwise than
on account of such indemnity agreement. In case such notice of any
such action shall be so given, such indemnifying party shall be
entitled to participate at its own expense in the defense or, if it
so elects, to assume (in conjunction with any other indemnifying
parties) the defense of such action, in which event such defense
shall be conducted by counsel chosen by such indemnifying party or
parties and satisfactory to the indemnified party or parties who
shall be defendant or defendants in such action, and such defendant
or defendants shall bear the fees and expenses of any additional
counsel retained by them; but if the indemnifying party shall elect
not to assume the defense of such action, such indemnifying party
will reimburse such indemnified party or parties for the reasonable
fees and expenses of any counsel retained by them; provided,
however, if the defendants in any such action include both the
indemnified party and the indemnifying party and counsel for the
indemnifying party shall have reasonably concluded that there may
be a conflict of interest involved in the representation by such
counsel of both the indemnifying party and the indemnified party,
the indemnified party or parties shall have the right to select
separate counsel, satisfactory to the indemnifying party, to
participate in the defense of such action on behalf of such
indemnified party or parties (it being understood, however, that
the indemnifying party shall not be liable for the expenses of more
than one separate counsel representing the indemnified parties who
are parties to such action).
SECTION 9. Termination. This agreement may be terminated by the
Representatives by delivering written notice thereof to FPL, at any time
prior to the Closing Date if (a) after the date hereof and at or prior
to the Closing Date there shall have occurred any general suspension of
trading in securities on the New York Stock Exchange, Inc. or there
shall have been established by the New York Stock Exchange, Inc. or by
the Commission or by any federal or state agency or by the decision of
any court any limitation on prices for such trading or any restrictions
on the distribution of securities, or a general banking moratorium
declared by New York or federal authorities, or (b) there shall have
occurred any new outbreak of hostilities including, but not limited to,
an escalation of hostilities which existed prior to the date of this
agreement or other national
or international calamity or crisis, the effect of any such event
specified in (a) or (b) above on the financial markets of the United
States shall be such as to make it impracticable for the Underwriters to
enforce contracts for the sale of the Bonds. This agreement may also be
terminated at any time prior to the Closing Date if in the judgment of
the Representatives the subject matter of any amendment or supplement to
the Registration Statement or Prospectus prepared and furnished by FPL
reflects a material adverse change in the business, properties or
financial condition of FPL which renders it either inadvisable to
proceed with such offering, if any, or inadvisable to proceed with the
delivery of the Bonds to be purchased hereunder. Any termination of
this agreement pursuant to this Section 9 shall be without liability of
any party to any other party except as otherwise provided in subsections
(c) and (e) of Section 5 hereof.
SECTION 10. Miscellaneous. The validity and interpretation of this
agreement shall be governed by the law of the State of New York. This
agreement shall inure to the benefit of FPL, the several Underwriters
and, with respect to the provisions of Section 8 hereof, each
controlling person referred to in said Section 8, and their respective
successors. Nothing in this agreement is intended or shall be construed
to give to any other person, firm or corporation any legal or equitable
right, remedy or claim under or in respect of this agreement or any
provision herein contained. The term "successors" as used in this
agreement shall not include any purchaser, as such purchaser, of any
Bonds from any of the several Underwriters.
SECTION 11. Notices. All communications hereunder shall be in
writing or by telegram and, if to the Underwriters, shall be mailed or
delivered to the Representatives at the address set forth in the
Proposal hereto, or if to FPL, shall be mailed or delivered to it at 700
Universe Boulevard, Juno Beach, Florida 33408, attention: Treasurer.