EXHIBIT 1(c)
$16,510,000
MANATEE COUNTY, FLORIDA
Pollution Control Revenue Refunding Bonds
(Florida Power & Light Company Project)
Series 1994
UNDERWRITING AGREEMENT
Underwriting Agreement, dated March
28, 1994, between Manatee County, Florida (the "Issuer"), and Goldman,
Sachs & Co. and Bear, Stearns and Co. Inc., jointly and severally (the
"Underwriters").
1. Description of Bonds. The Issuer proposes
to issue and sell $16,510,000 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 15, 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 $41,275.
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 at the
Company's sole expense. 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 Manatee 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, 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 $16,510,000 principal amount of the Bonds for the
purpose of retiring an equal principal amount of bonds previously issued
by Manatee 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
$37,766,625.
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: Manatee County
1112 Manatee Avenue West
Bradenton, Florida 34205
Attention: Clerk 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.
MANATEE COUNTY, FLORIDA
By: STAN STEPHENS
Chairman of the Board of
County Commissioners of
Manatee County, Florida
Attest: Approved by the County Attorney as to Form:
R. B. SHORE By: H. HAMILTON RICE, JR.
Clerk of the Board County Attorney for
of County Commissioners of Manatee County, Florida
Manatee County, Florida
GOLDMAN, SACHS & CO.
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: Manatee County, Florida
Bonds:
Designation: Pollution Control Revenue Refunding Bonds
Florida Power & Light Company Project), Series 1994.
Principal Amount: $16,510,000
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: $41,275
EXHIBIT A
(Letterhead of County Attorney for Manatee County, Florida)
March 29, 1994
Manatee County
Bradenton, 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 Manatee County,
Florida, (the "Issuer") and as such have acted as Issuer's counsel in
connection with the issuance and sale of $16,510,000 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 15, 1994, (the "Resolution") to refund the outstanding $16,510,000
principal amount of bonds previously issued by the Issuer (the "Refunded
Bonds") to finance a portion of the cost of acquisition, construction and
installation of certain pollution control facilities at the Manatee 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 was approved by the Issuer in the Resolution, and the Project was
approved by the Issuer in the resolutions adopted in connection with the
issuance of the Refunded Bonds.
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, (i) to issue and
sell the Bonds; (ii) to loan the proceeds of the Bonds to the Company
under the Loan Agreement, dated as of March 1, 1994, (the "Loan
Agreement"), by and between the Issuer and Company; (iii) to execute and
perform its obligations under the Loan Agreement, the Agreement, the
Indenture and the Bonds; and (iv) to accept the Letter of Representation,
dated March 28, 1994, from the Company to the Issuer and the Underwriter
(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 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, after due
inquiry, neither the making or the performance by the Issuer of the Loan
Agreement, the Indenture or the Agreement 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 Florida public agency or Florida 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
(excluding those required under the Florida blue sky laws, upon which we
do not pass).
Very truly yours,
H. Hamilton Rice, Jr.
County Attorney
EXHIBIT B-1
(Letterhead of Squire Sanders & Dempsey)
March 29, 1994
To: Manatee County
Bradenton, 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 Manatee County, Florida (the "Issuer") of its $16,510,000 Manatee
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 $16,510,000 Manatee County, Florida
Pollution Control Revenue Bonds (Florida Power & Light Company Project),
Series A, dated as of September 1, 1977 issued to finance a portion of
the cost of acquisition, construction and installation of certain
pollution control facilities at the Manatee 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: Manatee County
Bradenton, 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 Manatee County, Florida (the "Issuer")
of its $16,510,000 Manatee 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.
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 Manatee County, Florida (the "Issuer") of $16,510,000 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
Manatee County
Bradenton, 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 $16,510,000
aggregate principal amount of Manatee 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 Manatee
County, Florida (the "Issuer") and sale to the Underwriter named in the
Agreement of $16,510,000 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
Manatee County
1112 Manatee Avenue West
Bradenton, Florida 34205
Ladies and Gentlemen:
Referring to the sale by Manatee County,
Florida today of $16,510,000 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 Manatee County, Florida (the "Issuer")
of $16,510,000 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
Manatee County
Bradenton, 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
Manatee County, Florida (the "Issuer") of $16,510,000 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 (to the extent of their
respective covenants and agreements herein) 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 Manatee County, 1112 Manatee Avenue West, Bradenton, Florida
34205, Attention: Clerk 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:
Manatee County, Florida
By:
Chairman of the Board
of County Commissioners of
Manatee County, Florida
Approved by the County Attest:
Attorney as to Form:
By:
County Attorney Clerk of the Board of County
for Manatee County, Commissioners of Manatee County,
Florida Florida
Goldman, Sachs & Co.
(Goldman, Sachs & Co.)
Bear, Stearns & Co. Inc.
By: