EXHIBIT 1(b)
$19,400,000
MARTIN COUNTY, FLORIDA
Pollution Control Revenue Refunding Bonds
(Florida Power & Light Company Project)
Series 1994
UNDERWRITING AGREEMENT
Underwriting Agreement, dated
March 28, 1994, between Martin County, Florida (the "Issuer"), and
Goldman, Sachs & Co. and Bear, Stearns & Co. Inc., jointly and severally
(the "Underwriters").
1. Description of Bonds. The Issuer proposes
to issue and sell $19,400,000 aggregate principal amount of its Pollution
Control Revenue Refunding Bonds (Florida Power & Light Company Project),
Series 1994, with the terms specified in Schedule I hereto (the "Bonds"),
pursuant to a Trust Indenture, to be dated as of March 1, 1994 (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 March 22, 1994 (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
March 1, 1994 (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, the Underwriters will jointly and severally purchase from the
Issuer, and the Issuer will sell to such Underwriters, the Bonds. 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 Reid & Priest, 40 West 57th Street, New York, New
York 10019, at 9:00 A.M. New York time on March 29, 1994, 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 the Underwriters a fee in the amount of $48,500.
3. Representations of the Issuer. The Issuer
represents and warrants to the Underwriters that:
(a) The Issuer has approved the delivery
of an Official Statement, dated March 28, 1994,
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
March 23, 1994 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,
Appendix D, Appendix E, Appendix F, and Appendix G 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, Appendix D, Appendix E, Appendix F, and Appendix
G. 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".
(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, 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. 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 validly existing political
subdivision of the State of Florida with full legal
right, power and authority under the laws of the State
of Florida, including particularly Part II 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 intend 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 1986, as amended (the "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' 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 Martin County,
Florida, Squire, Sanders & Dempsey, as Bond
Counsel, Steel Hector & Davis and Reid & Priest,
counsel to the Company, and Winthrop, Stimson,
Putnam & Roberts as 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 Underwriter's 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 Underwriter may
reasonably request.
(g) At the Closing Date, the Underwriters
shall have received from the Issuer a certificate
of its Chairman or Vice Chairman of the Board of
County Commissioners, 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 the Underwriters a wire or check payable in immediately
available funds in an amount equal to and representing the
Underwriters' fee specified in Section 2 hereof.
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 Underwriter 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. Truth-In-Bonding Statement. The Issuer is
proposing to issue $19,400,000 principal amount of the Bonds for the
purpose of retiring an equal principal amount of bonds previously issued
by Martin County, Florida. The Bonds are expected to be repaid over a
period of 30.5 years. At a forecasted interest rate of 7.5%, total
interest paid over the life of the debt or obligation will be
$44,377,500.
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 30.5 years.
9. 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 the Underwriters, and shall survive the delivery of the Bonds.
10. Notices and other Actions. All notices,
demands and formal actions hereunder will be in writing mailed,
telegraphed or delivered to:
The Issuer: Martin County
2401 S.E. Monterey Road
Stuart, Florida 34996
Attention: Chairman of the Board of County Commissioners
The Company: Florida Power & Light Company
700 Universe Boulevard
Juno Beach, Florida 33408-8801
Attention: Treasurer
The Underwriters: Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Municipal Finance Department
Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Attention: Municipal Finance Department
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.
MARTIN COUNTY, FLORIDA
By: M. L. WILCOX
Chairman of the Board of County
Commissioners of Martin County, Florida
Attest: Approved by the County Attorney as to Form:
MARSHA STILLER By: NOREEN S. DREYER
Clerk of the Board of County County Attorney for
Commissioners of Martin Martin County, Florida
County, Florida
GOLDMAN, SACHS & CO.
(Goldman, Sachs & Co.)
BEAR, STEARNS & CO. INC.
By: M. E. RESCOE
Approved:
FLORIDA POWER & LIGHT COMPANY
By: DILEK SAMIL
Treasurer
SCHEDULE I
Underwriting Agreement dated March 28, 1994.
Issuer: Martin County, Florida
Bonds:
Designation: Pollution Control Revenue Refunding Bonds
(Florida Power & Light Company Project), Series 1994.
Principal Amount: $19,400,000
Date of Maturity: September 1, 2024
Initial Interest Rate: 2.10%
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' Fee: $48,500
EXHIBIT A
(Letterhead of County Attorney for Martin County)
March 29, 1994
Martin County
Stuart, Florida
Squire, Sanders & Dempsey
Miami, Florida
Goldman, Sachs & Co.
New York, New York
Bear, Stearns & Co. Inc.
New York, New York
(the "Underwriters" named in the
Underwriting Agreement dated
March 28, 1994 (the "Agreement")
relating to the Bonds referred to below)
Ladies and Gentlemen:
I am County Attorney for Martin County,
Florida, (the "Issuer") and as such have acted as Issuer's counsel in
connection with the issuance and sale of $19,400,000 aggregate principal
amount of the Issuer's Pollution Control Revenue Refunding Bonds (Florida
Power & Light Company Project), Series 1994 (the "Bonds"). The Bonds are
being issued pursuant to a resolution adopted by the Issuer on
March 22, 1994 (the "Resolution") to refund the outstanding $19,400,000
principal amount of bonds previously issued by the Issuer to finance a
portion of the cost of acquisition, construction and installation of
certain pollution control facilities located at the Martin Steam Electric
Generating Plant of Florida Power & Light Company (the "Company"), all
as more particularly described in the Trust Indenture, dated as of March
1, 1994 (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 Project 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 validly existing political
subdivision of the State of Florida with full legal right, power and
authority under the laws of the State of Florida, including particularly
Part II of Chapter 159, Florida Statutes, as amended, to execute and
perform its obligations under the Loan Agreement, dated as of
March 1, 1994 between the Company and the County (the "Loan Agreement"),
the Agreement, the Indenture and the Bonds.
(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 by the Issuer of the Letter
of Representation dated March 28, 1994 from the Company (the "Letter of
Representation") 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 March 28, 1994 (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) To the best of my knowledge, 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 provision of the
Martin County Code of Ordinances, or any resolution, 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, except that no opinion is
rendered as to the existence of any conflict with the provisions of any
resolution authorizing the issuance of bonds by the Issuer.
(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.
Very truly yours,
EXHIBIT B-1
(Letterhead of Squire Sanders & Dempsey)
March 29, 1994
To: Martin County
Stuart, Florida
Goldman, Sachs & Co.
New York, New York
Bear, Stearns & Co. Inc.
New York, New York
Ladies and Gentlemen:
We have acted as Bond Counsel in connection with the issuance
by Martin County, Florida (the "Issuer") of its $19,400,000 Martin
County, Florida Pollution Control Revenue Refunding Bonds (Florida Power
& Light Company Project), Series 1994, dated as of March 1, 1994 (the
"Series 1994 Bonds"). The Series 1994 Bonds are being issued pursuant
to Part II 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 $19,400,000 Martin County, Florida
Pollution Control Revenue Bonds (Florida Power & Light Company Project),
Series A, dated as of January 1, 1978 issued to finance a portion of the
cost of acquisition, construction and installation of certain pollution
control facilities located at the Martin Plant of the Company all as more
particularly described in the Trust Indenture, dated as of March 1, 1994
(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 1994 Bonds. The Transcript documents include an executed
counterpart of the Indenture and an executed counterpart of the Loan
Agreement, dated as of March 1, 1994 (the "Agreement"), between the
Issuer and the Company. We also have examined an executed Series 1994
Bond.
Based on this examination, we are of the opinion that, under
existing law:
1. The Series 1994 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 1994 Bonds constitute limited obligations of
the Issuer, and the principal of and interest and any premium on the
Series 1994 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 1994 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 1994 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. The interest on the Series 1994 Bonds is excluded from
gross income for federal income tax purposes under Section 103(a) of the
Internal Revenue Code of 1986, as amended (the "Code"), except on any
Series 1994 Bonds for any period during which it is held by a
"substantial user" or a "related person" as those terms are used in
Section 147(a) of the Code, and the interest on the Series 1994 Bonds is
not treated as an item of tax preference under Section 57 of the Code for
purposes of the alternative minimum tax imposed on individuals and
corporations. The Series 1994 Bonds and the interest thereon are exempt
from all taxation under the laws of the State of Florida, except estate
taxes and taxes measured by income which are imposed by Chapter 220,
Florida Statutes, as amended, on "corporations", "banks" and "savings
associations", as such terms are defined in said Chapter 220. We express
no opinion as to other tax consequences regarding the Series 1994 Bonds.
Under the Code, portions of the interest earned by certain
corporations (as defined for federal income tax purposes) may be subject
to a corporate alternative minimum tax and an environmental tax imposed
for certain taxable years, and interest may be subject to a branch
profits tax imposed on certain foreign corporations doing business in the
United States and to a tax imposed on excess net passive income of
certain S corporations.
In giving the foregoing opinion with respect to the treatment
of interest on the Series 1994 Bonds and the status of the Series 1994
Bonds under the federal tax laws, we have assumed and relied upon
compliance with the covenants of the Issuer and the Company and the
accuracy, which we have not independently verified, of the
representations and certifications of the Issuer and the Company
contained in the Transcript. The accuracy of certain of those
representations and certifications, and compliance by the Issuer and the
Company with certain of those covenants, may be necessary for the
interest on the Series 1994 Bonds to be and to remain excluded from gross
income for federal income tax purposes. Failure to comply with certain
requirements with respect to the Series 1994 Bonds (or with similar
requirements with respect to certain other issues of bonds to be issued
by certain other issuers on behalf of the Company at substantially the
same time as the Series 1994 Bonds) subsequent to the issuance of the
Series 1994 Bonds could cause the interest thereon to be included in
gross income for federal income tax purposes retroactively to the date
of issuance of the Series 1994 Bonds. 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.
Respectfully submitted,
EXHIBIT B-2
(Letterhead of Squire, Sanders & Dempsey)
March 29, 1994
To: Martin County
Stuart, Florida
Goldman, Sachs & Co.
New York, New York
Bear, Stearns & Co. Inc.
New York, New York
Ladies and Gentlemen:
This supplemental opinion is rendered at your request in
connection with the issuance by Martin County, Florida (the "Issuer") of
its $19,400,000 Martin County, Florida Pollution Control Revenue
Refunding Bonds (Florida Power & Light Company Project), Series 1994,
dated as of March 1, 1994 (the "Series 1994 Bonds"). In connection with
the issuance of the Series 1994 Bonds, we have delivered to each of you
our approving legal opinion as 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 March 28, 1994, relating to the Series 1994 Bonds and certain other
issues of 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 validly existing political subdivision
of the State of Florida with full authority to execute and deliver the
Indenture, the Agreement and to issue and sell the Series 1994 Bonds
pursuant to the Act.
(2) In connection with the offering and sale of the
Series 1994 Bonds to the public, neither the Series 1994 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 1994 Bonds, the Indenture and the Agreement under the captions
"The Series 1994 Bonds" (except for certain information and statements
provided by The Depository Trust Company under "The Series 1994 Bonds --
Book-Entry System", as to which, with your permission, we express no
opinion), "The Agreements" and "The Indentures", insofar as they
describe the provisions of the Series 1994 Bonds, the Agreement and the
Indenture, fairly and accurately summarize the material provisions of
those documents. The statements pertaining to the Series 1994 Bonds in
the Official Statement under the caption "Tax Exemption" fairly and
accurately present the information purported to be shown.
(4) 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 or statute or, to the best of our knowledge
after due inquiry, any resolution authorizing the issuance of bonds by
the Issuer.
(5) 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.
This letter is furnished by us solely for your benefit in
connection with the original issuance and delivery of the Series 1994
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)
March 29, 1994
Goldman, Sachs & Co.
New York, New York
Bear, Stearns & Co. Inc.
New York, New York
(the "Underwriters" named in
the Underwriting Agreement dated
March 28, 1994 (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 Martin County, Florida (the "Issuer") of $19,400,000 aggregate
principal amount of the Issuer's Pollution Control Revenue Refunding
Bonds (Florida Power & Light Company Project), Series 1994 (the "Bonds"),
issued under the Trust Indenture, dated as of March 1, 1994 (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 Underwriter in accordance with the Agreement.
We have participated in the preparation of
or reviewed (1) the Indenture and the Loan Agreement, dated as of March
1, 1994 (the "Loan Agreement"), by and between the Company and the
Issuer; (2) the Letter of Representation, dated March 28, 1994 (the
"Letter of Representation"), from the Company to the Issuer and the
Underwriter; (3) the Official Statement, dated March 28, 1994, 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, among other things, the
issuance and sale of debt securities during 1994.
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, 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 an order 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 made in the Official
Statement under the captions "The Series 1994 Bonds", "The Agreements",
and "The Indentures", insofar as they purport to constitute summaries of
the terms of the documents referred to therein, constitute accurate
summaries of the terms of such documents in all material respects.
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
opinion of even date herewith rendered to you by Squire, Sanders &
Dempsey as 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 6 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)
March 29, 1994
Martin County
Stuart, Florida
Squire, Sanders & Dempsey
Miami, Florida
Ladies and Gentlemen:
Attached hereto is an executed copy of our
opinion of even date herewith, to the underwriter of $19,400,000
aggregate principal amount of Martin County, Florida Pollution Control
Revenue Refunding Bonds (Florida Power & Light Company Project),
Series 1994. 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
March 29, 1994
Goldman, Sachs & Co.
New York, New York
Bear, Stearns & Co. Inc.
New York, New York
(the "Underwriters" named in
the Underwriting Agreement dated
March 28, 1994 (the "Agreement") relating
to the Bonds referred to below)
Ladies and Gentlemen:
With reference to the issuance by Martin
County, Florida (the "Issuer") and sale to the Underwriter named in the
Agreement of $19,400,000 aggregate principal amount of the Issuer's
Pollution Control Revenue Refunding Bonds (Florida Power & Light Company
Project), Series 1994 (the "Bonds"), issued under the Trust Indenture,
dated as of March 1, 1994 (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 March 1,
1994 (the "Loan Agreement"), by and between the Company and the Issuer;
(b) the Letter of Representation, dated March 28, 1994 (the "Letter of
Representation"), from the Company to the Issuer and the Underwriter;
(c) the Official Statement, dated March 28, 1994, 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 1994.
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 made in the Official
Statement under the captions "The Series 1994 Bonds", "The Agreements",
and "The Indentures", insofar as they purport to constitute summaries of
the terms of the documents referred to therein, constitute accurate
summaries of the terms of such documents in all material respects.
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, 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 Squire, Sanders & Dempsey, as
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)
March 29, 1994
Martin County
2401 S.E. Monterey Road
Stuart, Florida 34996
Ladies and Gentlemen:
Referring to the sale by Martin County,
Florida today of $19,400,000 aggregate principal amount of its Pollution
Control Revenue Refunding Bonds (Florida Power & Light Company Project),
Series 1994, we hand you herewith signed copies of our opinion of even
date herewith to March 29, 1994 (the "Underwriters") and authorize you
to treat said opinion as having been rendered to you as well as to the
Underwriter.
Very truly yours,
EXHIBIT E
(Letterhead of Winthrop, Stimson, Putnam & Roberts)
March 29, 1994
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
(the "Underwriters" named in the Underwriting
Agreement dated March 28, 1994 (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 Martin County, Florida (the "Issuer")
of $19,400,000 aggregate principal amount of the Issuer's Pollution
Control Revenue Refunding Bonds (Florida Power & Light Company Project),
Series 1994 (the "Bonds"), issued under a Trust Indenture, dated as of
March 1, 1994 (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 March 1, 1994 (the "Loan Agreement"), by and between Florida
Power & Light Company (the "Company") and the Issuer; (2) Letter of
Representation, dated March 28, 1994 (the "Letter of Representation"),
from the Company to the Issuer and the Underwriter; and (3) Official
Statement, dated March 28, 1994, 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 Squire, Sanders & Dempsey, as 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 made in the Official
Statement under the captions "The Series 1994 Bonds", "The Agreements",
and "The Indentures", insofar as they purport to constitute summaries of
the terms of the documents referred to therein, constitute accurate
summaries of the terms of such documents in all material respects.
(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 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
March 28, 1994
Martin County
Stuart, Florida
Goldman, Sachs & Co.
New York, New York
Bear, Stearns & Co. Inc.
New York, New York
(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
Martin County, Florida (the "Issuer") of $19,400,000 aggregate principal
amount of its Pollution Control Revenue Refunding Bonds (Florida Power &
Light Company Project), Series 1994 (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, D, E and F 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 6 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 March 23,
1994, 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 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 (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 their 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 Underwriters (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 Squire, Sanders
& Dempsey, as 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 6 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 agree to
notify promptly the Company, the Issuer and the 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 Underwriter, shall be mailed
or delivered to them or, if to the Issuer, shall be mailed or delivered
to it at Martin County, 2401 S.E. Monterey Road, Stuart, Florida 34996
Attention: Chairman of the Board of County Commissioners or, 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:
Treasurer
Accepted and confirmed as of the date first above written:
Martin County, Florida
By:
Chairman of the Board of County
Commissioners of Martin County, Florida
Approved by the County Attest:
Attorney as to Form:
By:
County Attorney for Clerk of the Board of County
Martin County, Florida Commissioners of Martin County, Florida
Goldman, Sachs & Co.
(Goldman, Sachs & Co.)
Bear, Stearns & Co. Inc.
By: