EXHIBIT 1(b)
$45,750,000
DADE COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
(Florida)
Exempt Facilities Revenue Refunding Bonds
(Florida Power & Light Company Projects)
Series 1993
UNDERWRITING AGREEMENT
Underwriting Agreement, dated December 20, 1993, between the Dade County
Industrial Development Authority (the "Issuer"), and Goldman, Sachs &
Co., Artemis Capital Group, Inc., First Equity Corporation of Florida
and Howard Gary & Company, severally and not jointly (the
"Underwriters").
1. Description of Bonds. The Issuer proposes to issue and sell
$45,750,000 aggregate principal amount of its Exempt Facilities Revenue
Refunding Bonds (Florida Power & Light Company Projects), Series 1993,
with the terms specified in Schedule I hereto (the "Bonds"), pursuant to
a Trust Indenture, to be dated as of December 1, 1993 (the
"Indenture"), by and between the Issuer and First Union National Bank of
Florida, as trustee (the "Trustee"), and pursuant to a resolution
adopted by the Issuer on December 20, 1993 (the "Resolution"). The
Bonds will be payable, except to the extent payable from bond proceeds
and other moneys pledged therefor, solely from, and secured by a pledge
of, the revenues to be derived by the Issuer under a Loan Agreement, to
be dated as of December 1, 1993 (the "Loan Agreement"), by and between
the Issuer and Florida Power & Light Company (the "Company").
2. Purchase, Sale and Closing. On the basis of the representations
and warranties contained herein and in the Letter of Representation,
hereinafter defined, and subject to the terms and conditions set forth
herein and in the Official Statement, hereinafter defined, each
Underwriter will severally purchase from the Issuer, and the Issuer will
sell to such Underwriter, the principal amount of the Bonds set forth
opposite the name of such Underwriter in Schedule II hereto. The price
for the Bonds will be 100% of the principal amount thereof and shall be
payable in immediately available funds. The closing will be held at the
office of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A.,
1221 Brickell Avenue, Miami, Florida, 33131, at 9:00 A.M. New York time
on December 21, 1993, or such other date, time or place as may be agreed
upon by the parties hereto. The hour and date of such closing are
herein called the "Closing Date". The Bonds will be delivered in New
York, New York in definitive registered form and registered in such
names as the Underwriters may reasonably request, except with respect to
the Bonds which bear interest at a weekly interest rate which will be
registered in the name of a nominee of The Depository Trust Company, and
will be made available to the Underwriters for inspection and packaging
upon delivery at The Depository Trust Company, New York, New York, or at
such other place as may be agreed upon by the Issuer, the Company and
the Underwriters. As compensation for the services of the Underwriters
as contemplated herein, the Company agrees to pay each Underwriter the
respective fee set forth opposite the name of such Underwriter on
Schedule I hereto.
3. Representations of the Issuer. The Issuer represents to the
several Underwriters that:
(a) The Issuer has approved the delivery of an Official
Statement, dated December 20, 1993, for use in connection with the
sale and distribution of the Bonds. The Issuer has ratified and
confirmed the use prior to the date hereof of a Preliminary Official
Statement, dated December 15, 1993, in connection with the offering
of the Bonds. Appendix A to such Official Statement and such
Preliminary Official Statement describes certain matters relating to
the Company and is sometimes herein separately referred to as
"Appendix A." Such Official Statement and such Preliminary Official
Statement, as amended and supplemented, including in each case
Appendix A and all documents incorporated by reference therein,
Appendix B, Appendix C, and Appendix D are herein referred to as the
"Official Statement" and the "Preliminary Official Statement",
respectively, and all references herein to matters described,
contained or set forth in the Official Statement or the Preliminary
Official Statement shall, unless specifically stated otherwise,
include Appendix A and all documents incorporated by reference
therein, Appendix B, Appendix C and Appendix D. For the purposes of
this Agreement, all documents filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") after the date of the Official
Statement and incorporated by reference in the Official Statement
shall be deemed to be a supplement to the
Official Statement. The information with respect to the Issuer
contained in the Official Statement under the heading "Disclosure
Required by Florida Blue Sky Regulations" does not contain an untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
Issuer assumes no responsibilities for the accuracy, sufficiency or
fairness of any statements in the Preliminary Official Statement or
the Official Statement or any supplements thereto other than
statements and information therein relating to the Issuer under the
captions "Introductory Statement" and "Disclosure Required by
Florida Blue Sky Regulations" relating to the Issuer.
(b) The Issuer will not at any time authorize an amendment or
supplement (including an amendment or supplement resulting from the
filing of a document incorporated by reference) to the Official
Statement without prior notice to the Company, the Underwriters, and
Winthrop, Stimson, Putnam & Roberts, counsel for the Underwriters,
and Kubicki, Draper, Gallagher & McGrane, P.A., co-counsel for the
Underwriters or any such amendment or supplement to which the
Company or the Underwriters shall reasonably object in writing, or
which shall be unsatisfactory to Winthrop, Stimson, Putnam & Roberts
or Kubicki, Draper, Gallagher & McGrane, P.A. At the date hereof,
the information with respect to the Issuer in the Official Statement
and the Preliminary Official Statement is true and correct.
(c) The Issuer is a public body corporate and politic and a
public instrumentality created and validly existing under the
Constitution and laws of the State of Florida with full legal right,
power and authority under the laws of the State of Florida,
including particularly Parts II and III of Chapter 159, Florida
Statutes, as amended, to consummate the transactions involving the
Issuer contemplated herein and in the Official Statement and to
fulfill the terms hereof on the part of the Issuer to be fulfilled.
(d) The consummation of the transactions contemplated herein
and in the Official Statement and the fulfillment of the terms
hereof on the part of the Issuer to be fulfilled have been duly
authorized by all necessary action of the Issuer in accordance with
the laws of the State of Florida.
(e) The execution and delivery by the Issuer of the Loan
Agreement and the Indenture, the pledge and assignment by the Issuer
to the Trustee of certain of its rights under the Loan Agreement,
the consummation by the Issuer on its part of the transactions
contemplated herein and in the Official Statement and the
fulfillment of the terms hereof by the Issuer and the compliance by
the Issuer with all the terms and provisions of the Indenture and
the Loan Agreement will not conflict with, or constitute a breach of
or default under, any constitutional provision, statute or
ordinance, any indenture, mortgage, deed of trust, resolution or
other agreement or instrument to which the Issuer is now a party or
by which it is now bound, or, to the knowledge of the Issuer, any
order, rule or regulation applicable to the Issuer of any court or
governmental agency or body having jurisdiction over the Issuer or
any of its activities or properties.
(f) Except as disclosed in or contemplated by the Official
Statement, as it may be amended or supplemented, there is no action,
suit, proceeding, inquiry or investigation, at law or in equity, or
before or by any court, public board or body to which the Issuer is
a party, pending or, to the knowledge of the Issuer, threatened
against the Issuer, (i) to restrain or enjoin the issuance or sale
of the Bonds or the performance by the Issuer of the Loan Agreement
or the Indenture including without limitation assignment to the
Trustee of the Issuer's right to receive Loan Repayments and certain
other rights under the Loan Agreement as security for the Bonds, or
(ii) wherein an unfavorable decision, ruling or finding would (A)
have a material adverse effect on the transactions contemplated
herein or in the Official Statement or (B) adversely affect or put
in question the validity or enforceability of the Bonds, the
Indenture, the Loan Agreement, this Agreement, the Letter of
Representation, dated the date hereof, in the form attached hereto
as Exhibit F (the "Letter of Representation") from the Company to
the Issuer and the Underwriters or any other agreement, instrument
or document to which the Issuer is a party or by which it is bound
relating to the consummation of the transactions contemplated herein
or in the Official Statement.
4. Underwriters' Representation. The Underwriters intends to make
a public offering of the Bonds for sale upon the terms and conditions
set forth in the Official Statement.
5. Covenants of the Issuer. The Issuer agrees that:
(a) It has delivered herewith or will cause to be delivered
to the Underwriters as soon as practicable, a copy
of the Official Statement and will deliver or cause to be delivered
to the Underwriters promptly, which in no event will be later than
seven business days after the date hereof, as many copies of the
Official Statement as the Underwriters may reasonably request. Upon
the issuance thereof, the Issuer will deliver to the Underwriters
copies of all amendments and supplements to the Official Statement
(other than documents incorporated by reference therein).
(b) It will cooperate with the Company and the Underwriters
in connection with the preparation of the Official Statement and any
amendment or supplement thereto which the Company may be required to
furnish the Underwriters pursuant to the Letter of Representation.
(c) 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 Underwriters may designate, provided that the Issuer shall not
be required to qualify as a 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 the Issuer to be unduly
burdensome.
(d) It will not take or omit to take any action the taking or
omission of which would cause the proceeds from the sale of the
Bonds to be applied in a manner contrary to that provided for in the
Indenture and the Loan Agreement, as each may be amended from time
to time.
(e) At the request of the Underwriters or the Company, it
will take such action as is necessary and within its power and at
the sole expense of the Company to assure or maintain the status of
the interest on the Bonds as excluded from gross income for purposes
of the Internal Revenue Code of 1954, as amended (the "1954 Code"),
and the regulations thereunder.
The foregoing covenants are conditioned upon the Company's
compliance with Section 2 of the Letter of Representation.
6. Conditions of Underwriters's Obligation. The obligation 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
the Issuer and the Company contained herein and in the Letter of
Representation, respectively, to the performance by the Issuer and the
Company of their obligations to be performed hereunder and under the
Letter of Representation, respectively, at and prior to the Closing Date
and to the following conditions:
(a) At the Closing Date, the Indenture, the Loan Agreement
and the Letter of Representation shall be in full force and effect,
and if executed subsequent to the execution hereof and prior to the
Closing Date, shall not have been amended, modified or supplemented
except as may have been agreed to in writing by the Underwriters;
provided, however, that the acceptance of delivery of the Bonds by
the Underwriters on the Closing Date shall be deemed to constitute
such approval; and the Underwriters shall have received an executed
counterpart or certified copy of the Indenture and the Loan
Agreement.
(b) At the Closing Date, the Bonds shall have been duly
authorized, executed and authenticated in accordance with the
provisions of the Indenture.
(c) At the Closing Date, no order, decree or injunction of
any court of competent jurisdiction shall have been issued, or
proceedings therefor shall have been commenced, nor shall any order,
ruling, regulation or official statement by any governmental
official, body or board, have been issued, nor shall any legislation
have been enacted, with the purpose or effect of prohibiting or
limiting the issuance, offering or sale of the Bonds as contemplated
herein or in the Official Statement or the performance of the
Indenture or the Loan Agreement, in accordance with their respective
terms.
(d) At the Closing Date, there shall be in full force and
effect an authorization of the Florida Public Service Commission
with respect to the participation of the Company in the transactions
contemplated herein and in the Official Statement, and containing no
provision unacceptable to the Underwriters by reason of the fact
that it is materially adverse to the Company, it being understood
that no authorization in effect at the time of the execution hereof
by the Underwriters contains any such unacceptable provision.
(e) At the Closing Date, the Underwriters shall have received
opinions, dated the Closing Date, of the County
Attorney for Dade County, Greenberg, Traurig, Hoffman, Lipoff, Rosen
& Quentel, P.A., and McCrary & Mosley as Co-Bond Counsel, Steel
Hector & Davis and Reid & Priest, counsel to the Company, and
Winthrop, Stimson, Putnam & Roberts, and Kubicki, Draper, Gallagher
& McGrane, P.A., as co-counsel for the Underwriters, substantially
in the forms thereof attached hereto as Exhibits A, B-1, B-2, C, D,
and E, respectively, but with such changes as the Underwriters shall
approve.
(f) At the Closing Date, the Underwriters shall have received
from Deloitte & Touche, to the extent permitted by Statement of
Auditing Standards No. 72, a letter to the effect that (i) they are
independent public accountants with respect to the Company within
the meaning of the Securities Act of 1933, as amended (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 Appendix A to the Official Statement 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 the Company incorporated by reference in Appendix A to the
Official Statement, the latest available interim unaudited
consolidated financial statements of the Company since the close of
the Company's most recent audited fiscal year, if different from the
unaudited condensed consolidated financial statements of the Company
incorporated by reference in Appendix A to the Official Statement,
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 the Company since the end
of the most recent audited fiscal year, and inquiries of officials
of the Company 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 Underwriters' purposes),
nothing has come to their attention which caused them to believe
that (a) the unaudited condensed consolidated financial statements
of the Company incorporated by reference in Appendix A to the
Official Statement (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 Appendix A to
the Official Statement, as amended or supplemented, are not in
conformity with generally accepted accounting principles applied on
a basis substantially consistent with that of the audited
consolidated financial statements of the Company incorporated by
reference in Appendix A to the Official Statement, (b) at the date
of the latest available interim balance sheet read by them, if
different from the consolidated balance sheet incorporated by
reference in Appendix A to the Official Statement, 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 the Company, or
decrease in its net assets, in each case as compared with amounts
shown in the most recent consolidated balance sheet incorporated by
reference in Appendix A to the Official Statement, except in all
instances for changes or decreases which Appendix A to the Official
Statement, as amended or supplemented, 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 Appendix A to the Official
Statement to the latest available interim balance sheet read by them
and for the period from 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 Appendix A
to the Official Statement, as amended or supplemented, 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 Appendix A to the Official Statement and such
other items as the Underwriters may reasonably request.
(g) At the Closing Date, the Underwriters shall have received
from the Issuer a certificate of its Chairman or a Vice Chairman,
dated the Closing Date, stating in effect that each of the
representations and warranties of the Issuer set forth herein is
true, accurate and complete in all material respects at and as of
the Closing Date and that each of the obligations of the Issuer
hereunder to be performed by it at or prior to the Closing Date has
been performed.
(h) At the Closing Date, the Underwriters shall have received
a certified copy of the Resolution of the Issuer authorizing the
issuance and sale of the Bonds.
(i) Since the date of the Official Statement, as it may be
amended or supplemented (including amendments
or supplements resulting from the filing of documents incorporated
by reference), and up to the Closing Date, there shall have been no
material adverse change in the business, properties or financial
condition of the Company, except as reflected in or contemplated by
the Official Statement, as it may be so amended or supplemented,
and, since such date and up to the Closing Date, there shall have
been no material transaction entered into by the Company other than
transactions reflected in or contemplated by the Official Statement,
as it may be so amended or supplemented, and transactions in the
ordinary course of business.
(j) At the Closing Date, the Underwriters shall have received
from the Company a certificate, dated the Closing Date, signed by
the President or any Vice President or the Treasurer or the
Assistant Treasurer of the Company to the effect of paragraph (i)
above and stating in effect that the representations and warranties
of the Company set forth in the Letter of Representation are true,
accurate and complete in all material respects at and as of the
Closing Date and that each of the obligations of the Company under
the Letter of Representation to be performed at or prior to the
Closing Date has been performed.
(k) At the Closing Date, the Company shall have delivered to
Goldman, Sachs & Co. on behalf of the Underwriters a wire or check
payable in immediately available funds in an amount equal to and
representing such Underwriters' fee specified in Schedule I hereto.
In case any of the conditions specified above in this Section
6 shall not have been fulfilled, this Agreement may be terminated by
the Underwriters upon mailing or delivering written notice thereof
to the Issuer and the Company. Any such termination shall be
without liability of any party to any other party except as
otherwise provided in Section 3 of the Letter of Representation.
7. Termination. (a) This Agreement may be terminated by the
Underwriters by delivering written notice thereof to the Issuer and the
Company, at or prior to the Closing Date, if:
(i) 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 Securities and Exchange 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, the effect of which
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;
(ii) 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 which 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;
(iii) after the date hereof and at or prior to the Closing
Date, legislation shall be enacted by the Congress or adopted by
either House thereof or a decision shall be rendered by a
federal court, including the Tax Court of the United States, or
a ruling, regulation or order by or on behalf of the Treasury
Department of the United States, the Internal Revenue Service or
other governmental agency shall be issued or proposed with
respect to the imposition of federal income taxation upon
receipts, revenues or other income of the same kind and
character expected to be derived by the Issuer, including,
without limitation, Loan Repayments and other amounts under the
Loan Agreement, or upon interest received on bonds of the same
kind and character as the Bonds, with the result in any such
case that it is impracticable, in the reasonable judgment of the
Underwriters, for the Underwriters to enforce contracts for the
sale of the Bonds; or
(iv) the subject matter of any amendment or supplement to
the Official Statement prepared and furnished by the Issuer or
the Company renders it, in the judgment of the Underwriters,
either inadvisable to proceed with the offering or inadvisable
to proceed with the delivery of the Bonds to be purchased
hereunder.
(b) This Agreement shall terminate upon the termination of
the Letter of Representation as provided in Section 4 thereof.
(c) Any termination of this Agreement pursuant to this Section
7 shall be without liability of any party to any other party except
as otherwise provided in Section 3 of the Letter of Representation.
8. Default. If any Underwriter shall fail or refuse to purchase
Bonds which it agreed to purchase hereunder and the aggregate principal
amount of Bonds which such defaulting Underwriter agreed but failed or
refused to purchase is not more than 30% of the aggregate principal
amount of the Bonds, the other Underwriters shall be obligated to
purchase severally, in the proportions which the aggregate principal
amounts of Bonds set forth opposite their names in Schedule II hereto
bears to the aggregate principal amount of Bonds so set forth opposite
the names of all such non-defaulting Underwriters, all Bonds which such
defaulting Underwriter agreed but failed or refused to purchase. If any
Underwriter or Underwriters shall fail or refuse to purchase Bonds and
the aggregate principal amount of Bonds with respect to which such
default occurs is more than 30% of the aggregate principal amount of the
Bonds and arrangements satisfactory to the Issuer and the Company for
the purchase of such Bonds are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of
the non-defaulting Underwriter or Underwriters or the Issuer or of the
Company except as otherwise provided in Section 3 of the Letter of
Representation. In any such case which does not result in such a
termination, either the Underwriters or the Company shall have the right
to postpone the Closing Date, but in no event for longer than seven days
in each case, in order that the required changes, if any, in the
Official Statement or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
9. Truth-In-Bonding Statement. The Issuer is proposing to issue
$45,750,000 principal amount of the Bonds for the purpose of retiring an
equal principal amount of bonds previously issued by Dade County,
Florida. The Bonds are expected to be repaid over a period of
27.5 years. At a forecasted interest rate of 7.5%, total interest paid
over the life of the debt or obligation will be $94,359,375.
The source of repayment for this proposal is the payments by the
Company under the Loan Agreement. Authorizing this debt or obligation
will result in $0 moneys not being available to finance the other
services of the Issuer each year for 27.5 years.
10. Miscellaneous. The validity and interpretation of this
Agreement shall be governed by the law of the State of Florida. This
Agreement shall inure to the benefit of the Issuer, the Underwriters and
the Company, 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 or through the Underwriters. This
Agreement may be executed by any one or more of the parties hereto in
any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and
the same instrument.
The representations and warranties of the Issuer contained in
Section 3 hereof shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any
Underwriters, and shall survive the delivery of the Bonds.
11. Notices and other Actions. All notices, demands and formal
actions hereunder will be in writing mailed, telegraphed or delivered
to:
The Issuer: Dade County Industrial Development Authority
World Trade Center Building
80 S.W. 8th Street, Suite 2440
Miami, Florida 33130
Attention: Executive Director
The Company: Florida Power & Light Company
700 Universe Boulevard
Juno Beach, Florida 33408-8801
Attention: Treasurer
The Underwriters: Goldman, Sachs & Co.
Artemis Capital Group, Inc.
First Equity Corporation of Florida
Howard Gary & Company
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
In Witness Whereof, the parties hereto, in consideration of the mutual
covenants set forth herein and intending to be legally bound, have
caused this Agreement to be executed and delivered as of the date first
written above.
DADE COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
By: R. J. BARRETO
Chairman of the Dade County
Industrial Development Authority
Attest: Approved by the County
Attorney as to Form
and Legal Sufficiency:
JAMES D. WAGNER, JR. By: DIANNE S. GAINES
Secretary Ex-Officio Assistant County Attorney for
Dade County, Florida
GOLDMAN, SACHS & CO. FIRST EQUITY CORPORATION
OF FLORIDA
By:GOLDMAN, SACHS & CO. By: DEBORAH GLUCKSTEIN ETKIN
Vice President
ARTEMIS CAPITAL GROUP, INC. HOWARD GARY & COMPANY
By:SANDRA M. ANDERSON By: HECTOR J. MONTES
Vice President Managing Director
Approved:
FLORIDA POWER & LIGHT COMPANY
By: DILEK SAMIL
Treasurer
SCHEDULE I
Underwriting Agreement dated December 20, 1993.
Issuer: The Dade County Industrial Development Authority
Bonds:
Designation: Exempt Facilities Revenue Refunding Bonds (Florida
Power & Light Company Projects), Series 1993.
Principal Amount: $45,750,000
Date of Maturity: June 1, 2021
Initial Interest Rate:
Purchase Price: 100% of the principal amount thereof.
Public Offering Price: 100% of the principal amount thereof.
Redemption Provisions: The Bonds will be subject to redemption by the Issuer,
in whole or in part, at the direction of Florida
Power & Light Company, as set forth in the Official
Statement.
Underwriters' Fees: Goldman, Sachs & Co. $80,062.50
Artemis Capital Group, Inc. $11,437.50
First Equity Corporation of Florida $11,437.50
Howard Gary & Company $11,437.50
SCHEDULE II
Underwriter Principal Amount
Goldman, Sachs & Co. $32,025,000
Artemis Capital Group, Inc. 4,575,000
First Equity Corporation of Florida 4,575,000
Howard Gary & Company 4,575,000
Total $45,750,000
/TABLE
EXHIBIT A
(Letterhead of County Attorney for Dade County)
December 21, 1993
Dade County Industrial Development Authority Goldman, Sachs & Co.
Miami, Florida New York, New York
Greenberg, Traurig, Hoffman, Artemis Capital Group, Inc.
Lipoff, Rosen & Quentel, P.A. Boca Raton, Florida
Miami, Florida
First Equity Corporation
McCrary & Mosley of Florida
Miami, Florida Miami, Florida
Howard Gary & Company
Miami, Florida
(the "Underwriters" named in
the Underwriting Agreement
dated December 20, 1993
(the "Agreement") relating to
the Bonds referred to below)
Ladies and Gentlemen:
I am the County Attorney for Dade County, Florida, and as such have
acted as general counsel for the Dade County Industrial Development
Authority (the "Issuer") in connection with the issuance and sale of
$45,750,000 aggregate principal amount of the Issuer's Exempt Facilities
Revenue Refunding Bonds (Florida Power & Light Company Projects), Series
1993 (the "Bonds"). The Bonds are being issued pursuant to a resolution
adopted by the Issuer on December 20, 1993, (the "Resolution") to refund
the outstanding Dade County, Florida (the "County") (i) $33,850,000
Pollution Control Revenue Bonds (Florida Power & Light Company Project),
Series 1972, (ii) $7,200,000 Pollution Control Revenue Refunding Bonds
(Florida Power & Light Company Project), Series 1986, and
(iii) $4,700,000 Industrial Development Revenue Refunding Bonds (Florida
Power & Light Company Metrorail Project), Series 1986 issued to finance
or refinance the acquisition, construction and installation of pollution
control facilities located at the Turkey Point, Manatee, Sanford and
Cutler Plants of the Company, and facilities for the provision of
electrical power for the operation by the County of Metrorail, a County-
owned mass commuting facility, all as more particularly described in the
Trust Indenture, dated as of December 1, 1993 (the "Indenture"), between
the Issuer and First Union National Bank of Florida, Miami, Florida, as
trustee (the "Trustee"). The issuance of the Bonds and the Projects
were approved by the Issuer in the Resolution.
Based upon such review as I deemed necessary, I am of the opinion
that:
(1) The Issuer is a public body corporate and politic and a public
instrumentality created and validly existing under the Constitution
and laws of the State of Florida, duly vested with all of the powers
conferred upon industrial development authorities by Parts II and III
of Chapter 159, Florida Statutes, as amended, with full power and
authority (i) to issue and sell the Bonds; (ii) to loan the proceeds
of the Bonds to Florida Power & Light Company (the "Company") under
the Loan Agreement, dated as of December 1, 1993, (the "Loan
Agreement"), by and between the Issuer and Company; (iii) to execute
and perform its obligations under the Loan Agreement, the Agreement, the
Trust Indenture, dated as of December 1, 1993, (the "Indenture"), by
and between the Issuer and First Union National Bank of Florida, as
trustee, and the Bonds; and (iv) to accept the Letter of Representation,
dated December 20, 1993, from the Company to the Issuer and the
Underwriters (the "Letter of Representation").
(2) The Resolution is a valid resolution of the Issuer, duly adopted
by the Issuer at a meeting duly noticed, called and held in accordance
with the Constitution and laws of the State of Florida.
(3) The acceptance of the Letter of Representation by the Issuer
has been duly authorized, and said Letter of
Representation has been validly accepted by the Issuer.
(4) The Issuer has duly approved the use and distribution of the
Official Statement, dated December 20, 1993 (the "Official Statement")
at the meeting wherein the Resolution was adopted and has duly authorized
such changes, insertions and omissions as may be approved by its
Chairman or its Vice Chairman as evidenced by the execution and delivery
of the Indenture.
(5) Neither the making or the performance by the Issuer of the Loan
Agreement, the Indenture or the Agreement, nor the acceptance by the
Issuer of the Letter of Representation, violates or conflicts with any
constitutional provision, statute, indenture, mortgage, deed of trust,
lease, resolution or other agreement or instrument to which the Issuer
is a party or by which it is bound, or, to my knowledge, any order, rule
or regulation applicable to the Issuer of any court or governmental
agency or body having jurisdiction over the Issuer or any of its
activities or properties.
(6) Except as disclosed in or contemplated by the Official Statement,
I have not been made aware of any action, suit, proceeding or
investigation at law or in equity or before or by any court, public
board or body, to which the Issuer is a party which is pending or,
threatened against or affecting the Issuer wherein an unfavorable
decision, finding or ruling would adversely affect (i) the
transactions contemplated by the Indenture, the Loan Agreement, the
Official Statement or by the Agreement, (ii) the validity or
enforceability of the Bonds, the Indenture or the Loan Agreement, or
(iii) the exclusion from gross income for federal income tax purposes of
interest on the Bonds.
(7) No approval, consent or authorization of any Florida governmental
or public agency or authority not already obtained is required by the
Issuer in connection with the consummation by the Issuer of the
transactions contemplated by the Official Statement or by the Agreement or
the performance of its obligations under the Loan Agreement, the
Indenture and the Agreement.
Very truly yours,
EXHIBIT B-1
(Letterhead of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A.)
or
(Letterhead of McCrary & Mosley)
December 21, 1993
To: Dade County Industrial Development Authority
Miami, Florida
Goldman, Sachs & Co.
New York, New York
Artemis Capital Group, Inc.
Boca Raton, Florida
First Equity Corporation of Florida
Miami, Florida
Howard Gary & Company
Miami, Florida
Ladies and Gentlemen:
We have acted as Co-Bond Counsel in connection with the issuance by
the Dade County Industrial Development Authority (the "Issuer") of its
$45,750,000 Dade County Industrial Development Authority Exempt
Facilities Revenue Refunding Bonds (Florida Power & Light Company
Projects), Series 1993, dated as of December 1, 1993 (the "Series 1993
Bonds"). The Series 1993 Bonds are being issued pursuant to Parts II
and III of Chapter 159, Florida Statutes, as amended (the "Act"), for
the purpose of making a loan to Florida Power & Light Company (the
"Company") to refund the outstanding Dade County, Florida (the "County")
(i) $33,850,000 Pollution Control Revenue Bonds (Florida Power & Light
Company Project), Series 1972, (ii) $7,200,000 Pollution Control Revenue
Refunding Bonds (Florida Power & Light Company Project), Series 1986,
and (iii) $4,700,000 Industrial Development Revenue Refunding Bonds
(Florida Power & Light Company Metrorail Project), Series 1986 issued to
finance or refinance the acquisition, construction and installation of
pollution control facilities located at the Turkey Point, Manatee,
Sanford and Cutler Plants of the Company, and facilities for the
provision of electrical power for the operation by the County of
Metrorail, a County-owned mass commuting facility, all as more
particularly described in the Trust Indenture, dated as of December 1,
1993 (the "Indenture"), between the Issuer and First Union National Bank
of Florida, Miami, Florida, as trustee (the "Trustee").
In rendering this opinion, we have examined the transcript of
proceedings (the "Transcript") relating to the issuance of the Series
1993 Bonds. The Transcript documents include an executed counterpart of
the Indenture and an executed counterpart of the Loan Agreement, dated
as of December 1, 1993 (the "Agreement"), between the Issuer and the
Company. We also have examined an executed Series 1993 Bond. We also
have relied upon the opinion of Steel Hector & Davis, as counsel for the
Company, as to all matters concerning the due authorization, execution
and delivery by, and the binding effect upon and enforceability against,
the Company of the Agreement. We have further assumed the due
authorization, execution and delivery by, and the binding effect upon
and enforceability against, the Trustee of the Indenture.
Based on this examination, we are of the opinion that, under existing
law:
1. The Series 1993 Bonds, the Indenture and the Agreement are valid,
legal, binding and enforceable in accordance with their respective
terms, subject to bankruptcy laws and other laws affecting creditors'
rights and to the exercise of judicial discretion.
2. The Series 1993 Bonds constitute limited obligations of the Issuer,
and the principal of and interest and any premium on the Series 1993
Bonds (collectively, "debt service") are payable solely from the
revenues and other moneys pledged and
assigned by the Indenture to secure that payment. Those revenues and
other moneys include the Loan Repayments required to be made by the
Company under the Agreement. The Series 1993 Bonds and the payment of
debt service thereon are not secured by an obligation or pledge of any
moneys raised by taxation, and the Series 1993 Bonds do not represent or
constitute a debt or pledge of the faith and credit of the Issuer, the
State of Florida or any political subdivision thereof.
3. Under existing statutes, regulations, rulings and court decisions,
subject to the assumption stated below, interest on the Series 1993
Bonds is excluded from gross income for federal income tax purposes
except for interest on any Series 1993 Bond for any period during which
such Series 1993 Bond is held by a person who is a "substantial user" of
the facilities refinanced with the Series 1993 Bonds or a "related
person" within the meaning of Section 103(b)(13) of the Internal Revenue
Code of 1954, as amended (the "1954 Code"). Interest on the Series 1993
Bonds is not an item of tax preference for purposes of the federal
alternative minimum tax imposed on individuals and corporations;
however, interest on the Series 1993 Bonds is taken into account in
determining adjusted current earnings for purposes of computing the
alternative minimum tax imposed on corporations. We express no opinion
regarding other federal tax consequences resulting from the ownership,
receipt or accrual of interest on, or disposition of the Series 1993
Bonds. In rendering the opinion in this paragraph 3 above, we have
assumed continuing compliance by the Issuer and the Company with the
requirements of the 1954 Code and the Internal Revenue Code of 1986, as
amended (the "Code") that must be met after the issuance of the Series
1993 Bonds in order that interest on the Series 1993 Bonds not be
included in gross income for federal income tax purposes and have relied
upon the accuracy of the representations and certifications of the
Issuer and the Company contained in the Transcript, which we have not
independently verified. The failure by the Issuer or the Company to
meet such requirements may cause interest on the Series 1993 Bonds to be
included in gross income for federal income tax purposes retroactive to
the date of issuance of the Series 1993 Bonds. The Issuer and the
Company have covenanted to comply with the requirements of the 1954 Code
and the Code in order to maintain the exclusion of interest on the
Series 1993 Bonds from gross income for federal income tax purposes.
4. The Series 1993 Bonds and the interest thereon are exempt from
taxation under the laws of the State of Florida, except as to estate
taxes and taxes imposed by Chapter 220, Florida Statutes, on interest,
income or profits on debt obligations owned by corporations as defined
therein.
Respectfully submitted,
EXHIBIT B-2
(Letterhead of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A.)
or
(Letterhead of McCrary & Mosley)
December 21, 1993
To: Dade County Industrial Development Authority
Miami, Florida
Goldman, Sachs & Co.
New York, New York
Artemis Capital Group, inc.
Boca Raton, Florida
First Equity Corporation of Florida
Miami, Florida
Howard Gary & Company
Miami, Florida
Ladies and Gentlemen:
This supplemental opinion is rendered at your request in connection
with the issuance by the Dade County Industrial Development Authority
(the "Issuer") of its $45,750,000 Dade County Industrial Development
Authority Exempt Facilities Revenue Refunding Bonds (Florida Power &
Light Company Projects), Series 1993, dated as of December 1, 1993 (the
"Series 1993 Bonds"). In connection with the issuance of the Series
1993 Bonds, we have delivered to each of you our approving legal opinion
as Co-Bond Counsel (the "Approving Opinion"). In rendering this
opinion, we have examined and relied upon the matters contained,
referred to and identified, and to the same extent stated, in the
Approving Opinion. We also have examined (i) the Official Statement,
dated December 20, 1993, relating to the Series 1993 Bonds (the
"Official Statement") and (ii) the Securities Act of 1933, as amended
(the "1933 Act"), the Trust Indenture Act of 1939, as amended (the "1939
Act"), and the rules, regulations and interpretations under those acts.
All terms used in this supplemental opinion and not defined herein shall
have the same meaning as assigned in the Approving Opinion.
Based on such examination, we are of the opinion that, under existing
law:
(1) The Issuer is a public body corporate and politic and a public
instrumentality duly created pursuant to the laws of the State of
Florida including, in particular, the Act, with full authority to
execute and deliver the Indenture, the Agreement and to issue and sell
the Series 1993 Bonds pursuant to the Act.
(2) In connection with the offering and sale of the Series 1993 Bonds
to the public, neither the Series 1993 Bonds nor any securities
evidenced thereby are required to be registered under the 1933 Act and
neither the Indenture nor any other instrument is required to be
qualified under the 1939 Act.
(3) The statements in the Official Statement relating to the Series
1993 Bonds, the Indenture and the Agreement under the captions "The
Series 1993 Bonds" (except for certain information and statements
provided by The Depository Trust Company under "The Series 1993 Bonds --
Book Entry System", as to which, with your permission, we express no
opinion), "The Agreement" and "The Indenture", insofar as they describe
the provisions of the Series 1993 Bonds, the Agreement and the
Indenture, fairly and accurately summarize the material provisions of
those documents. The statements pertaining to the Series 1993 Bonds in
the Official Statement under the caption "Tax Exemption" fairly and
accurately present the information purported to be shown.
This letter is furnished by us solely for your benefit in connection
with the original issuance and delivery of the Series 1993 Bonds and may
not, without our express written consent, be relied upon by any other
person.
Respectfully submitted,
EXHIBIT C
(Letterhead of Steel Hector & Davis)
December 21, 1993
Goldman, Sachs & Co.
New York, New York
Artemis Capital Group, Inc.
Boca Raton, Florida
First Equity Corporation of Florida
Miami, Florida
Howard Gary & Company
Miami, Florida
(the "Underwriters" named in
the Underwriting Agreement dated
December 20, 1993 (the "Agreement") relating
to the Bonds referred to below)
Ladies and Gentlemen:
We have acted as counsel for Florida Power & Light Company (the
"Company") in connection with the issuance and sale by the Dade County
Industrial Development Authority (the "Issuer") of $45,750,000 aggregate
principal amount of the Issuer's Exempt Facilities Revenue Refunding
Bonds (Florida Power & Light Company Projects), Series 1993 (the
"Bonds"), issued under the Trust Indenture, dated as of December 1, 1993
(the "Indenture"), by and between the Issuer and First Union National
Bank of Florida, as trustee (the "Trustee"), and in connection with the
sale of the Bonds to the Underwriters in accordance with the Agreement.
We have participated in the preparation of or reviewed (1) the
Indenture and the Loan Agreement, dated as of December 1, 1993 (the
"Loan Agreement"), by and between the Company and the Issuer; (2) the
Letter of Representation, dated December 20, 1993 (the "Letter of
Representation"), from the Company to the Issuer and the Underwriters;
(3) the Official Statement, dated December 20, 1993, including Appendix
A and all documents incorporated by reference therein (the "Official
Statement") and (4) such corporate records, certificates and other
documents and such questions of law as we have considered necessary or
appropriate for purposes of this opinion. We have also participated in
the preparation of the Company's application to the Florida Public
Service Commission for the authorization of the issuance and sale, among
other things, of debt securities during 1993.
Upon the basis of the foregoing, we advise you that:
I. The Company 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. The Company is a corporation duly authorized by its Restated
Articles of Incorporation, as amended (the "Charter"), to conduct the
business which it is now conducting as set forth in the Official
Statement; the Company 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 the Company
is subject, as to wholesale rates, accounting and certain other matters,
to the jurisdiction of the Federal Energy Regulatory Commission.
III. Except as stated or referred to in the Official Statement,
as amended or supplemented (including amendments or supplements
resulting from the filing of documents incorporated therein by
reference), there are no material pending legal
proceedings to which the Company is a party or of which property of the
Company is the subject which, if determined adversely would have a
material adverse effect on the Company, and, to the best of our
knowledge, no such proceeding is known by us to be contemplated by
governmental authorities. We know of no litigation or proceedings,
pending or threatened, challenging the validity of the Loan Agreement or
the Letter of Representation or seeking to enjoin the performance of the
Company's obligations thereunder.
IV. The Loan Agreement 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 agreement of the Company
enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency or other laws affecting creditors' rights
generally and general equity principles, and subject to any principles
of public policy limiting the right to enforce the indemnification
provisions contained in Section 7.3 therein.
V. The consummation by the Company of the transactions contemplated
in the Letter of Representation, and the fulfillment by the Company of
the terms of the Loan Agreement and the Letter of Representation, will
not result in a breach of any of the terms or provisions of, or
constitute a default under the Charter or by-laws or any indenture,
mortgage, deed of trust or other agreement or instrument, the terms of
which are known to us, to which the Company 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 the Company.
VI. Other than with respect to the opinions expressed regarding
the Official Statement under paragraphs VIII and XII, we have not
ourselves checked the accuracy or completeness of, or otherwise
verified, the information furnished with respect to matters in the
Official Statement. We have generally reviewed and discussed such
information with certain officers and employees of the Company, certain
of its legal counsel, its independent public accountants, Co-Bond
Counsel, and your representatives. Additionally, as counsel to the
Company, we have responsibility for certain of its legal matters. On
the basis of such consideration, review and discussion, but without
independent check or verification except as stated, nothing has come to
our attention that would lead us to believe that the Official Statement,
as amended or supplemented (including amendments or supplements
resulting from the filing of documents incorporated therein by
reference) (except the information regarding the exclusion from gross
income for federal income tax purposes of interest on the Bonds and the
financial statements and other financial or statistical data included or
incorporated by reference therein, as to which we express no opinion),
at its date contained or at the date hereof contains, any untrue
statement of a material fact or at its date omitted, or, at the date
hereof 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.
VII. The Loan Agreement is being executed and delivered pursuant
to the authority contained in orders of the Florida Public Service
Commission, which authority is adequate to permit such action. To the
best of our knowledge, said authorization is still in full force and
effect, and no further approval, authorization, consent or order of any
public board or body is legally required for the performance of the
Company's obligations under the Loan Agreement.
VIII. The statements summarizing the provisions of the Bonds, the
Loan Agreement, and the Indenture contained in the Official Statement
under the captions "The Series 1993 Bonds", "The Agreement", and "The
Indenture" accurately and fairly present the material aspects of the
information purported to be shown.
IX. At the time they were filed with the Securities and Exchange
Commission, the documents incorporated by reference in Appendix A to the
Official Statement, as amended or supplemented (except as to the
financial statements and other financial or statistical data included or
incorporated by reference therein as to which we express no opinion),
complied as to form in all material respects with the applicable
requirements of the Securities Exchange Act of 1934, as amended, and the
applicable instructions, rules and regulations of the Securities and
Exchange Commission thereunder.
X. The offer and sale of the Bonds do not require registration of
the Bonds under the Securities Act of 1933, as amended, and, in
connection therewith, the Indenture is not required to be qualified
under the Trust Indenture Act of 1939, as amended; provided that, in
giving this opinion, we have, with your consent, relied on the opinions
of even date herewith rendered to you by Greenberg, Traurig, Hoffman,
Lipoff, Rosen & Quentel, P.A., and McCrary & Mosley as Co-Bond Counsel,
that the interest on the Bonds is excluded from gross income for federal
income tax purposes and we have made no independent factual
investigation with respect to such exclusion.
XI. The Letter of Representation has been duly and validly
authorized, executed and delivered by the Company and
constitutes a valid and binding agreement of the Company, subject to any
principles of public policy limiting the right to enforce the
indemnification provisions contained in Section 5 therein.
XII. The information contained in the Official Statement, which
is stated therein to have been made in reliance upon our authority, or
is specifically attributed to us, has been reviewed by us and is
correct.
We are members of the Florida Bar and do not hold ourselves out as
experts on the laws of New York and accordingly, this opinion is limited
to the laws of Florida (other than the blue sky laws thereof) and the
federal laws of the United States. As to all matters of New York law,
we have relied, with your consent, upon the opinion of even date
herewith rendered to you by Reid & Priest, New York, New York. As to
all matters of Florida law, Reid & Priest and Winthrop, Stimson, Putnam
& Roberts are hereby authorized to rely upon this opinion as though it
were rendered to each of them.
Very truly yours,
(Letterhead of Steel Hector & Davis)
December 21, 1993
Dade County Industrial Development Authority
Miami, Florida
Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A.
Miami, Florida
McCrary & Mosley
Miami, Florida
Ladies and Gentlemen:
Attached hereto is an executed copy of our opinion of even date
herewith, to the underwriters of $45,750,000 aggregate principal amount
of Dade County Industrial Development Authority Exempt Facilities
Revenue Refunding Bonds (Florida Power & Light Company Projects),
Series 1993. You are hereby authorized to rely upon such opinion as
though it were addressed to you.
Very truly yours,
EXHIBIT D
(Letterhead of Reid & Priest)
New York, New York
December 21, 1993
Goldman, Sachs & Co.
New York, New York
Artemis Capital Group, Inc.
Boca Raton, Florida
First Equity Corporation of Florida
Miami, Florida
Howard Gary & Company
Miami, Florida
(the "Underwriters" named in
the Underwriting Agreement dated
December 20, 1993 (the "Agreement") relating
to the Bonds referred to below)
Ladies and Gentlemen:
With reference to the issuance by the Dade County Industrial
Development Authority (the "Issuer") and sale to the Underwriters named
in the Agreement of $45,750,000 aggregate principal amount of the
Issuer's Exempt Facilities Revenue Refunding Bonds (Florida Power &
Light Company Projects), Series 1993 (the "Bonds"), issued under the
Trust Indenture, dated as of December 1, 1993 (the "Indenture"), by and
between the Issuer and First Union National Bank of Florida, as trustee,
we advise you that, as counsel for Florida Power & Light Company (the
"Company"), we have reviewed (a) the Indenture and the Loan Agreement,
dated as of December 1, 1993 (the "Loan Agreement"), by and between the
Company and the Issuer; (b) the Letter of Representation, dated
December 20, 1993 (the "Letter of Representation"), from the Company to
the Issuer and the Underwriters; (c) the Official Statement, dated
December 20, 1993, including Appendix A and all documents incorporated
by reference therein (the "Official Statement"); (d) the Company's
Restated Articles of Incorporation and by-laws, each as amended to the
date hereof (respectively, the "Charter" and By-laws") and (e) the
application by the Company to the Florida Public Service Commission for
authorization of, among other things, the issuance and sale of debt
securities during 1993.
On the basis of the foregoing, we advise you as follows:
I. The Loan Agreement 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 agreement of the Company
enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency or other laws affecting creditors' rights
generally and general equity principles, and subject to any principles
of public policy limiting the right to enforce the indemnification
provision contained in Section 7.3 therein.
II. The statements summarizing the provisions of the Bonds, the
Loan Agreement, and the Indenture, contained in the Official Statement
under the captions "The Series 1993 Bonds", "The Agreement", and "The
Indenture" accurately and fairly present material aspects of the
information purported to be shown.
III. At the time they were filed with the Securities and Exchange
Commission, the documents incorporated by reference in Appendix A to the
Official Statement, as amended or supplemented (except as to the
financial statements and other financial or statistical data included or
incorporated by reference in such documents, as to which we express no
opinion), complied as to form in all material respects with the
applicable requirements of the Securities Exchange Act of 1934, as
amended, and the applicable, instructions, rules and regulations of the
Securities and Exchange Commission thereunder.
IV. The offer and sale of the Bonds do not require registration
of the Bonds under the Securities Act of 1933, as amended, and, in
connection therewith, the Indenture is not required to be qualified
under the Trust Indenture Act of 1939, as amended.
V. The Letter of Representation has been duly and validly
authorized, executed and delivered by the Company and constitutes a
valid and binding agreement of the Company, subject to any principles of
public policy limiting the right to enforce the indemnification
provisions contained in Section 6 therein.
VI. The consummation by the Company of the transactions
contemplated in the Letter of Representation, and the fulfillment by the
Company of the terms of the Loan Agreement and the Letter of
Representation, 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
the Company or any indenture, mortgage, deed of trust or other agreement
or instrument, the terms of which are known to us to which the Company
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 the Company.
Other than with respect to the opinion expressed regarding the
Official Statement under paragraph II, we have not ourselves checked the
accuracy or completeness of, or otherwise verified, the information
furnished with respect to matters in the Official Statement. We have
generally reviewed and discussed with certain officers and employees of
the Company, its counsel, its independent public accountants, Co-Bond
Counsel, and your representatives the information furnished, whether or
not subject to our check and verification. On the basis of such
consideration, review and discussion, but without independent check or
verification except as stated, nothing has come to our attention that
would lead us to believe that the Official Statement, as amended or
supplemented (except the information regarding the exclusion from gross
income for federal income tax purposes of interest on the Bonds or the
financial statements and other financial or statistical data included or
incorporated by reference therein, as to which we express no opinion),
at its date or at the date hereof, contained or contains 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.
We are members of the New York Bar and do not hold ourselves out as
experts on the laws of Florida. We do not pass upon matters relating to
the incorporation of the Company. We have relied, with your consent,
upon an opinion of even date herewith addressed to you by Steel Hector
& Davis, West Palm Beach, Florida, counsel for the Company, as to all
matters of Florida law addressed in such opinion. As to all matters of
New York law, Steel Hector & Davis is hereby authorized to rely upon
this opinion as though it were rendered to Steel Hector & Davis. With
respect to the opinion expressed in paragraph IV above, we have relied,
with your consent, upon the opinions of even date herewith rendered to
you by Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A. and
McCrary & Mosley, as Co-Bond Counsel, that the interest on the Bonds is
excluded from gross income for federal income tax purposes and we have
made no independent factual investigation with respect to such
exclusion.
Very truly yours,
(Letterhead of Reid & Priest)
December 21, 1993
Dade County Industrial Development Authority
World Trade Center Building
80 S.W. 8th Street, Suite 2440
Miami, Florida 33130
Ladies and Gentlemen:
Referring to the sale by the Dade County Industrial Development
Authority today of $45,750,000 aggregate principal amount of its Exempt
Facilities Revenue Refunding Bonds (Florida Power & Light Company
Projects) Series 1993, we hand you herewith signed copies of our opinion
of even date herewith to Goldman, Sachs & Co., Artemis Capital Group,
Inc, First Equity Corporation of Florida and Howard Gary & Company (the
"Underwriters") and authorize you to treat said opinion as having been
rendered to you as well as to the Underwriters.
Very truly yours,
EXHIBIT E
(Letterhead of Winthrop, Stimson, Putnam & Roberts)
or
(Letterhead of Kubicki, Draper, Gallagher & McGrane, P.A.)
December 21, 1993
Goldman, Sachs & Co.
New York, New York
Artemis Capital Group, Inc.
Boca Raton, Florida
First Equity Corporation of Florida
Miami, Florida
Howard Gary & Company
Miami, Florida
(the "Underwriters" named in the Underwriting
Agreement dated December 20, 1993 (the "Agreement")
relating to the Bonds referred to below)
Ladies and Gentlemen:
We have acted as counsel for you in connection with your purchase
from the Dade County Industrial Development Authority (the "Issuer") of
$45,750,000 aggregate principal amount of the Issuer's Exempt Facilities
Revenue Refunding Bonds (Florida Power & Light Company Projects), Series
1993 (the "Bonds"), issued under a Trust Indenture, dated as of
December 1, 1993 (the "Indenture"), by and between the Issuer and First
Union National Bank of Florida, as trustee (the "Trustee"), pursuant to
the Agreement, and in connection with the related (1) Loan Agreement,
dated as of December 1, 1993 (the "Loan Agreement"), by and between
Florida Power & Light Company (the "Company") and the Issuer; (2) Letter
of Representation, dated December 20, 1993 (the "Letter of
Representation"), from the Company to the Issuer and the Underwriters;
and (3) Official Statement, dated December 20, 1993, including Appendix
A and all documents incorporated by reference therein (the "Official
Statement").
We have, with your consent, relied upon the opinion of even date
herewith addressed to you by Steel Hector & Davis, counsel for the
Company, as to matters covered in such opinion relating to the laws of
the State of Florida. We have reviewed such opinion and believe it is
satisfactory and that you and we are justified in relying thereon. With
respect to the opinion expressed in paragraph (4) below, we have, with
your consent, relied on the opinion of even date herewith of Greenberg,
Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A. and McCrary & Mosley, as
Co-Bond Counsel, that interest on the Bonds is excluded from gross
income for federal income tax purposes and have made no independent
factual investigation with respect to such exclusion. We have also
examined such documents and satisfied ourselves as to such other matters
as we have deemed necessary in order to enable us to express the opinion
set forth below.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such latter documents.
We are of the opinion that:
(1) The Loan Agreement 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 agreement of the Company
enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency or other laws affecting the enforcement of
creditors' rights generally and general equity principles, and subject
to any principles of public policy limiting the right to enforce the
indemnification provision
contained in Section 7.3 therein.
(2) The Loan Agreement is being executed and delivered pursuant
to the authority contained in orders of the Florida Public Service
Commission, which authority is adequate to permit such action. To the
best of our knowledge, said authorization is still in full force and
effect, and no further approval, authorization, consent or order of any
public board or body is legally required for the performance of the
Company's obligations under the Loan Agreement.
(3) The statements summarizing the provisions of the Bonds, the
Loan Agreement, and the Indenture contained in the Official Statement
under the captions "The Series 1993 Bonds", "The Agreement", and "The
Indenture" accurately and fairly present material aspects of the
information purported to be shown.
(4) The offer and sale of the Bonds do not require registration
of the Bonds under the Securities Act of 1933, as amended, and, in
connection therewith, the Indenture is not required to be qualified
under the Trust Indenture Act of 1939, as amended.
(5) The Letter of Representation has been duly and validly
authorized, executed and delivered by the Company and constitutes a
valid and binding agreement of the Company, except that we express no
opinion as to the enforceability of the indemnification provisions of
Section 6 thereof.
While we have examined the Official Statement, we have necessarily
assumed the correctness and completeness of the statements made or
included therein, or constituting a part thereof, and take no
responsibility therefor, except insofar as such statements relate to us
and as set forth in paragraph (3) above. In the course of the
preparation of the Official Statement, we had conferences with certain
of the Company's officers and representatives, with counsel for the
Company, with Deloitte & Touche, the independent public accountants who
audited certain of the financial statements included in the Official
Statement, with Co-Bond Counsel and with your representative. We call
to your attention that there is no statutory or regulatory provision
authorizing the incorporation by reference of information in documents
such as the Official Statement. Our examination of the Official
Statement, and our discussions in the above-mentioned conferences, did
not disclose to us any information which gives us reason to believe that
the Official Statement, at its issue date and at the date hereof,
contained or contains 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. We express no opinion or belief as to the
financial statements and other financial or statistical data contained
in or incorporated by reference in the Official Statement or the
information regarding exclusion from gross income for federal income tax
purposes of interest on the Bonds or as to the incorporation of the
Company.
This opinion is rendered to you in connection with the above-
described transaction. This opinion may not be relied upon by you for
any other purpose, or relied upon or furnished to any other person, firm
or corporation without our prior written permission.
Very truly yours,
EXHIBIT F
FLORIDA POWER & LIGHT COMPANY
LETTER OF REPRESENTATION
December 20, 1993
Dade County Industrial Development Authority
Miami, Florida
Goldman, Sachs & Co.
New York, New York
Artemis Capital Group, Inc.
Boca Raton, Florida
First Equity Corporation of Florida
Miami, Florida
Howard Gary & Company
Miami, Florida
(the "Underwriters" named in the Underwriting
Agreement dated the date hereof (the "Agreement")
relating to the Bonds referred to below)
Ladies and Gentlemen:
In consideration of the issuance and sale by the Dade County
Industrial Development Authority (the "Issuer") of $45,750,000 aggregate
principal amount of its Exempt Facilities Revenue Refunding Bonds
(Florida Power & Light Company Projects), Series 1993 (the "Bonds") and
the purchase of the Bonds by the Underwriters pursuant to the Agreement,
Florida Power & Light Company (the "Company") represents, warrants and
covenants to and agrees with the Issuer and the Underwriters, and the
Issuer and the Underwriters by their acceptance hereof agree with the
Company as follows (all terms not specifically defined in this Letter of
Representation shall have the same meanings herein as in the Agreement):
1. Representations and Warranties of the Company. The Company
represents and warrants that:
(a) When the Official Statement shall be issued and at the Closing
Date, the Official Statement, as it may be amended or supplemented
(including amendments or supplements resulting from the filing of
documents incorporated by reference), will not contain an untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
that the foregoing representations and warranties in this subsection
(a) shall not apply to statements in or omissions from the Official
Statement under the captions "Tax Exemption", "Underwriting" and
"Disclosure Required By Florida Blue Sky Regulations" (except for
the second sentence of the first paragraph thereof) or in Appendices
B, C, and D or in the statements on the cover page with respect to
the initial public offering price, tax exemption or terms of
offering or in the statement on the third page with respect to
stabilization of the market price of the Bonds by the Underwriters.
(b) The documents incorporated by reference in Appendix A to the
Official Statement, as amended or supplemented, fully complied, at
the time they were filed with the Securities and Exchange Commission
(the "Commission"), 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.
(c) The financial statements contained or incorporated by
reference in Appendix A to the Official Statement present fairly the
financial condition and operations of the Company at the respective
dates or for the respective periods to which they apply; and 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
Official Statement.
(d) Since the respective most recent dates as of which information
is given in the Official Statement, as it may be amended or
supplemented (including amendments or supplements resulting from the
filing of documents incorporated by reference), there has not been
any material adverse change in the business, properties or financial
condition of the Company nor has any material transaction been
entered into by the Company, other than changes and transactions
reflected in or contemplated by the Official Statement, as it may be
amended or supplemented, and transactions in the ordinary course of
business. The Company does not have any material contingent
obligation which is not reflected in or contemplated by the Official
Statement, as it may be amended or supplemented.
(e) The consummation of the transactions contemplated herein and
in the Official Statement and the fulfillment of the terms of the
Loan Agreement and this Letter of Representation, on the part of the
Company to be fulfilled, have been duly authorized by all necessary
corporate action of the Company in accordance with the provisions of
its Restated Articles of Incorporation, as amended (the "Charter"),
by-laws (the "By-laws") and applicable law, and this Letter of
Representation constitutes, and the Loan Agreement when executed and
delivered by the Company will constitute, legal, valid and binding
obligations of the Company in accordance with their terms, except as
limited by bankruptcy, insolvency or other laws affecting creditors'
rights generally and general equity principles, and subject to any
principles of public policy limiting the right to enforce the
indemnification provisions contained in Section 5 herein and
Section 7.3 of the Loan Agreement.
(f) The consummation of the transactions contemplated herein and
in the Official Statement and the fulfillment of the terms of the
Loan Agreement and this Letter of Representation 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 the Company or any
indenture, mortgage, deed of trust or other agreement or instrument
to which the Company 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 the Company.
(g) The terms and conditions of the Agreement as they relate to
the Company and the Company's participation in the transactions
contemplated thereby are satisfactory to it.
(h) The Company has approved the use prior to the date hereof of
the Preliminary Official Statement, dated December 15, 1993, in
connection with the offering of the Bonds.
2. Covenants of the Company. The Company agrees that:
(a) At its expense, it will cause to be prepared and, upon the
approval of and authorization by the Issuer, furnished to the
Underwriters as many copies of the Official Statement (as amended or
supplemented from time to time, but excluding any documents
incorporated by reference therein) as the Underwriters may
reasonably request for the public offering of the Bonds. At its
expense, it will cause to be prepared and furnished to the
Underwriters one copy of each of the documents incorporated by
reference in the Official Statement, as it may be amended or
supplemented, and as many additional copies of such documents
incorporated by reference as shall be requested of the Underwriters
by prospective purchasers of the Bonds.
(b) During the period ending 25 days after the end of the
underwriting period as defined in Rule 15c2-12 of the Exchange Act,
if any event relating to or affecting the Company or of which the
Company shall be advised in writing by the Underwriters shall occur
which, in the Company's opinion, should be set forth in a supplement
to or in an amendment of the Official Statement in order to make the
Official Statement not misleading in the light of the circumstances
when it is delivered to a purchaser, the Company will either (i)
prepare and furnish to the Underwriters at the Company's expense a
reasonable number of copies of a supplement or supplements or an
amendment or amendments to the Official Statement or (ii) make an
appropriate filing pursuant to Section 13 or 14 of the Exchange Act,
which will, in either case, supplement or amend the Official
Statement so that as supplemented or amended it will not contain any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the
statements therein, in the light of the circumstances when the
Official Statement is delivered to a purchaser, not misleading;
provided, that should such event relate solely to activities of the
Underwriters, then the Underwriters shall assume the expense of
preparing and furnishing any such amendment or supplement.
(c) 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
Underwriters may designate, provided that the Company 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
the Company to be unduly burdensome.
(d) It will not take or omit to take any action the taking or
omission of which would cause the proceeds from the sale of the
Bonds to be applied in a manner contrary to that provided for in the
Indenture and the Loan Agreement as they are amended from time to
time.
3. Expenses.
(a) Upon the issuance and delivery of the Bonds by the Issuer to
the Underwriters, the Company will pay, or cause to be paid, all
expenses and costs incident to the authorization, issuance,
printing, sale and delivery, as the case may be, of the underwriting
papers, the Bonds, the Preliminary Official Statement, the Official
Statement, this Letter of Representation and the blue sky survey,
including without limitation (A) any taxes, other than transfer
taxes, in connection with the issuance of the Bonds hereunder;
(B) any rating agency fees; (C) fees of the Trustee; (D) the fees
and disbursements of Co-Bond Counsel and counsel to the Issuer and
the Company; (E) the fees to the Issuer; and (F) the fees and
disbursements of Winthrop, Stimson, Putnam & Roberts, counsel for
the Underwriters, and Kubicki, Draper, Gallagher & McGrane, P.A.,
co-counsel for the Underwriters; and (G) the fees and
disbursements (including filing fees) of Winthrop, Stimson, Putnam
& Roberts, counsel for the Underwriters, in connection with the
qualification of the Bonds for sale under the securities or blue sky
laws of various jurisdictions, not in excess, however, of an
aggregate of $5,000.
(b) If the Agreement is terminated in accordance with the
provisions of Section 6 or 7(b) thereof, the Company will pay all
the expenses referred to in subsection (a) of this Section 3, and
the reasonable out-of-pocket expenses of the Underwriters, not in
excess, however, of an aggregate of $5,000, the Underwriters to pay
the remainder of their expenses.
(c) If the Agreement is terminated in accordance with the
provisions of Section 7(a) thereof, the Company will pay all the
expenses referred to in subsection (a) of this Section 3, the
Underwriters to pay the remainder of its expenses.
(d) If the Underwriters shall fail or refuse, otherwise than for
some reason sufficient to justify, in accordance with the terms of
the Agreement, the cancellation or termination of their obligation
thereunder, to purchase and pay for the Bonds as provided in
Section 2 thereof, the Underwriters will pay all the expenses
referred to in subsection (a) of this Section 3.
(e) The Issuer shall not in any event be liable to the
Underwriters for any expenses or costs incident to the issuance and
sale of the Bonds nor for damages on account of loss of anticipated
profits. The Company shall not in any event be liable to the
Underwriters for damages on account of loss of anticipated profits.
Nothing herein shall be construed to relieve the Underwriters of its
liability for their default under the Agreement.
4. Conditions of the Company's Obligation. The obligation of the
Company to participate in the transactions contemplated herein and in
the Official Statement shall be subject to the condition that, on the
Closing Date, there shall be in full force and effect an authorization
of the Florida Public Service Commission with respect to the
participation of the Company in such transactions, and containing no
provision unacceptable to the Company by reason or the fact that it is
materially adverse to the Company, it being understood that no
authorization in effect at the time of execution of this Letter of
Representation contains any such unacceptable provision. In case the
aforesaid condition shall not have been fulfilled, this Letter of
Representation and the Company's obligation to participate in the
transactions contemplated herein and in the Official Statement may be
terminated by the Company, upon mailing or delivering written notice
thereof to the Underwriters.
5. Representation of the Issuer. The acceptance and confirmation
of this Letter of Representation by the Issuer shall constitute a
representation and warranty by the Issuer to the Company that the
representations and warranties contained in Section 3 of the Agreement
are true as of the date hereof and will be true in all material respects
as of the Closing Date.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Issuer
and any official or employee thereof, each Underwriter and each
person who controls any Underwriter within the meaning of Section 15
of the Securities Act of 1933, as amended (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 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 Preliminary Official Statement, including any documents
incorporated therein by reference, or in the Official Statement, as
amended or supplemented (if any amendments or supplements thereto,
including documents incorporated by reference, shall have been
furnished), or the omission or alleged omission to state therein a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that the indemnity agreement contained in this
Section 6 shall not apply to any Underwriter (or any person
controlling such Underwriter) on account of 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, under the captions "Tax
Exemption" (except to the extent that such statement or omission is
based upon an untrue statement of or an omission to state, or an
alleged untrue statement of or omission to state, a material fact in
the engineering facts and representations and conclusions of the
Company concerning the Project (as defined in the Loan Agreement)
contained in the closing certificate furnished to Greenberg,
Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A. and McCrary &
Mosley, as Co-Bond Counsel, and except to the extent that such
statement or omission is based upon the Company's continuing
compliance with Section 148(f) of the Internal Revenue Code of 1986,
as amended, and the regulations thereunder) and "Underwriting" or in
the statements on the cover page with respect to the initial public
offering price, tax exemption or terms of offering or in the
statement on the third page with respect to stabilization of the
market price of the Bonds by the Underwriters; and provided,
further, that the indemnity agreement contained in this Section 5
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
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 Official Statement or the Official
Statement as amended or supplemented, if any amendments or
supplements thereto shall have been timely furnished at or prior to
the time of written confirmation of the sale involved, but exclusive
of any documents incorporated by reference therein 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 Official Statement which shall have
been furnished subsequent to such written confirmation and prior to
the delivery of such Bonds to such person, exclusive of any
documents incorporated by reference therein 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 Issuer and each
Underwriter agrees to notify promptly the Company, the Issuer and
each other Underwriter, as the case may be, of the commencement of
any litigation or proceedings against it, any of its aforesaid
officials or employees or any person controlling it as aforesaid, in
connection with the issuance and sale of the Bonds.
(b) Each Underwriter agrees to indemnify and hold harmless the
Issuer and any official or employee thereof, and the Company, its
officers and directors, and each person who controls the Company
within the meaning of Section 15 of the Securities Act, against any
and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject 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 Official Statement, 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 necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, but only with
respect to information contained under the caption "Underwriting" or
in the statements on the cover page with respect to the initial
public offering price and terms of offering or in the statement on
the third page with respect to stabilization of the market price of
the Bonds by the Underwriters. The Issuer and the Company agree
promptly to notify the Underwriters, the Issuer and the Company, as
the case may be, of the commencement of any litigation or
proceedings against it, any of its aforesaid officials or employees,
or any of its aforesaid officers and directors or any person
controlling it as aforesaid, in connection with the issuance and
sale of the Bonds.
(c) The Company, each Underwriter and the Issuer each agree that,
upon the receipt of notice of the commencement of any action against
it, any of its aforesaid officers and directors, any of its
aforesaid officials or employees or any person controlling it as
aforesaid, as the case may be, in respect of which indemnity may be
sought on account of any indemnity agreement contained herein, it
will promptly give written notice of the commencement thereof to the
party or parties against whom indemnity shall be sought hereunder,
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 satisfactory to the
indemnified party or parties and 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).
7. Miscellaneous. The validity and interpretation of this Letter
of Representation shall be governed by the law of the State of New York.
This Letter of Representation shall inure to the benefit of the Company,
the Issuer, the Underwriters and, with respect to the provisions of
Section 6 hereof, each official, employee, officer, director and
controlling person referred to in said Section 6, and their respective
successors. Nothing in this Letter of Representation is intended or
shall be construed to give any other person, firm or corporation any
legal or equitable right, remedy or claim under or in respect of this
Letter of Representation or any provision herein contained. The term
"successors" as used herein shall not include any purchaser, as such
purchaser, of any Bonds from or through the Underwriters.
The indemnity agreements of the Company and the Underwriters
contained in Section 6 hereof and the representations of the Company and
the Issuer contained herein shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of the
Issuer or any official or employee thereof, the Underwriters or any
controlling person thereof, or the Company or any director, officer or
controlling person thereof, and shall survive the delivery of the Bonds.
The agreements contained in Section 3 hereof to pay expenses shall
survive the termination of the Agreement and this Letter of
Representation.
This Letter of Representation may be executed in several
counterparts, each of which shall be regarded as an original and all of
which shall constitute one and the same agreement. This Letter of
Representation shall become effective upon the execution and acceptance
thereof and the effectiveness of the Agreement, and it shall terminate
as provided in Section 4 hereof or upon the termination of the
Agreement.
8. Notices. All communications hereunder shall be in writing or by
telegram and, if to the Underwriters, shall be mailed or delivered to
them or, if to the Issuer, shall be mailed or delivered to it at the
Dade County Industrial Development Authority, World Trade Center
Building, 80 S.W. 8th Street, Suite 2440, Miami, Florida 33130,
Attention: Executive Director, if to the Company, shall be mailed or
delivered to Florida Power & Light Company, 700 Universe Boulevard, Juno
Beach, Florida 33408-8801, Attention: Treasurer.
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that
purpose, whereupon this letter agreement and your acceptance shall
constitute a binding agreement between us.
Very truly yours,
Florida Power & Light Company
By: DILEK SAMIL
Treasurer
Accepted and confirmed as of the date first above written:
Dade County Industrial
Development Authority
By: R. J. BARRETO
Chairman of the Dade County
Industrial Development Authority
Approved by the County Attorney as Attest:
to Form and Legal Sufficiency:
By: DIANNE S. GAINES JAMES D. WAGNER, JR.
Assistant County Attorney for
Dade County, Florida Secretary Ex-officio
Goldman, Sachs & Co. Artemis Capital Group, Inc.
By:GOLDMAN, SACHS & CO. By: SANDRA M. ANDERSON
Vice President
First Equity Corporation of Florida Howard Gary & Company
By:DEBORAH GLUCKSTEIN ETKIN By: HECTOR J. MONTES
Vice President Managing Director