Exhibit 99.3
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of May 22, 2007 (as the
same may be amended, supplemented or otherwise modified and in effect from
time to time, this "Agreement"), is between FPL Recovery Funding LLC, a
Delaware limited liability company, as issuer (the "Issuer"), and Florida
Power & Light Company ("FPL"), a Florida corporation, as administrator (in
such capacity, the "Administrator").
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in Appendix A to the Indenture, as defined
below. Appendix A to the Indenture also sets forth certain rules of
interpretation applicable to this Agreement.
W I T N E S S E T H:
WHEREAS, the Issuer is issuing the Bonds pursuant to the Indenture,
dated as of May 22, 2007 (as amended, supplemented or otherwise modified
and in effect from time to time, the "Indenture"), between the Issuer and the
Trustee;
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Bonds, including (i) the Servicing Agreement, (ii)
the Sale Agreement, and (iii) the DTC Agreement (and, together with the
Indenture, the Servicing Agreement, and the Sale Agreement, the "Related
Agreements"), among the Issuer, the Trustee and The Depository Trust Company
relating to the Bonds;
WHEREAS, pursuant to the Related Agreements, the Issuer is required to
perform certain duties in connection with the Related Agreements, the Issuer
LLC Agreement, the Bonds and the Collateral pledged to the Trustee pursuant to
the Indenture;
WHEREAS, the Issuer might enter into one or more additional servicing
agreements, sale agreements and DTC agreements in connection with the Issuer's
issuance of Additional Bonds ("Additional Related Agreements");
WHEREAS, pursuant to such Additional Related Agreements, the Issuer
might be required to perform certain additional duties;
WHEREAS, the Issuer has no employees and does not intend to have any
employees, and consequently desires to have the Administrator perform certain
of the duties of the Issuer referred to in the preceding clauses and to
provide such additional services consistent with the terms of this Agreement,
the Related Agreements, and any Additional Related Agreements as the Issuer
may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer on the
terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and intending to be legally bound hereby,
the parties hereto agree as follows:
Section 1. Duties of the Administrator; Management Services. The
Administrator hereby agrees, subject to the directions of the Managers of the
Issuer, to provide the following corporate management services to the Issuer:
(a) furnish the Issuer with ordinary clerical, bookkeeping and
other corporate administrative services necessary and appropriate for
the Issuer, including, the following services on behalf of the Issuer:
(i) maintain at the Premises (as defined in Section 1(g))
general accounting records of the Issuer (the "Account Records"),
subject to year-end audit, in accordance with generally accepted
accounting principles, separate and apart from its own accounting
records, prepare or cause to be prepared such quarterly and annual
financial statements as may be necessary or appropriate and
arrange for year-end audits of the Issuer's financial statements
by the Issuer's independent accountants;
(ii) prepare or cause to be prepared filings by the Issuer
and, after execution by the Issuer, file with the SEC and any
applicable state agencies documents required to be filed with the
SEC and any applicable state agencies, including, periodic reports
required to be filed under the Exchange Act;
(iii) prepare or cause to be prepared, executed and filed
such income, franchise, or other tax returns of the Issuer as
shall be required to be filed by applicable law; prepare or cause
to be prepared for execution by the Issuer and cause to be filed
such income, franchise or other tax returns of the Issuer as shall
be required to be filed by applicable law (the "Tax Returns") and
cause to be paid on behalf of the Issuer from the Issuer's funds
any taxes required to be paid by the Issuer by applicable law;
(iv) prepare or cause to be prepared for execution by the
Managers of the Issuer minutes of the meetings of the Managers and
such other documents deemed appropriate by the Issuer to maintain
the separate limited liability company existence and good standing
of the Issuer (the "Company Minutes" and, together with the
Account Records, the Tax Returns, the Company Minutes and the
Issuer LLC Agreement, the "Issuer Documents") or otherwise
required under the Related Agreements and any other documents
deliverable by the Issuer thereunder or in connection therewith;
and
(v) hold, maintain and preserve at the Premises (or such
other place as shall be required by any of the Related Agreements
or any Additional Related Agreements) executed copies (to the
extent applicable) of the Issuer Documents and other documents
executed by the Issuer thereunder or in connection therewith;
(b) take such actions on behalf of the Issuer as are necessary or
desirable for the Issuer to remain organized and in good standing in the
State of Delaware as a limited
2
liability company and qualified to do business in Florida and such other
foreign jurisdictions in which it becomes necessary to be so qualified;
(c) provide for the issuance and delivery of the Bonds and any
Additional Bonds;
(d) provide for the performance by the Issuer of certain of its
obligations and duties under each of the Related Agreements and any
Additional Related Agreements, and prepare or cause to be prepared all
documents, reports, filings, instruments, notices, certificates and
opinions that it shall be the duty of the Issuer to prepare, file or
deliver pursuant to the Related Agreements;
(e) enforce or cause to be enforced each of the rights of the
Issuer under the Related Agreements, at the direction of any Trustee;
(f) provide for the defense, at the direction of the Issuer's
Managers, of any action, suit or proceeding brought against the Issuer
or affecting the Issuer or any of its assets;
(g) provide office space (the "Premises") for the Issuer and such
reasonable ancillary services as may be necessary to carry out the
obligations of the Administrator hereunder, including telecopying,
duplicating and word processing services;
(h) undertake such other administrative services as may be
appropriate, necessary or requested by the Issuer;
(i) provide any Trustee with copies of the filings by the Issuer
under the Exchange Act; and
(j) provide such other services as are incidental to the foregoing
or as the Issuer and the Administrator may agree.
In providing the services under this Section 1 and as otherwise provided under
this Agreement, the Administrator will not knowingly take any actions on
behalf of the Issuer which (i) the Issuer is prohibited from taking under the
Related Agreements, or (ii) would cause the Issuer to be in violation of any
federal, state or local law or the Issuer LLC Agreement.
Section 2. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and, as reimbursement for its
expenses related thereto, the Administrator shall be entitled to (a) an
administrative fee of $125,000 per annum, payable semi-annually in arrears on
each Payment Date, payable in accordance with the priorities established in
accordance with Section 8.02(d) of the Indenture, and (b) any additional fee
provided, pursuant to an amendment hereto, in connection with the issuance of
any Additional Bonds and the execution of Additional Related Agreements. The
Issuer also shall pay or reimburse all expenses incurred for filing fees and
expenses for attorneys, accountants, or other professional services procured
by the Administrator on behalf of the Issuer to meet the Issuer's obligations
under the Basic Documents and, if applicable, any Additional Indenture or
Subsequent Sale Agreement, including without limitation filing fees and
expenses arranged by
3
the Administrator pursuant to Section 1 of this Agreement. When the
Administrator retains such attorneys or accountants, or arranges for other
professional services as contemplated hereunder, it shall negotiate the terms
of such arrangements, on behalf of the Issuer, in good faith.
Section 3. Third Party Services. Any third-party professional services
required for the performance of the above-referenced services by the
Administrator (including independent auditors' fees and counsel fees) may, if
the Issuer deems it necessary or desirable, be arranged by the Issuer. Costs
and expenses associated with the contracting for such third-party professional
services shall be paid directly by the Administrator, unless otherwise agreed
by the Issuer.
Section 4. Additional Information to be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
Section 5. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not
be subject to the supervision of the Issuer or the Trustee with respect to the
manner in which it accomplishes the performance of its obligations hereunder.
Unless expressly authorized by the Issuer, the Administrator shall have no
authority to act for or represent the Issuer in any way and shall not
otherwise be deemed an agent of the Issuer.
Section 6. No Joint Venture. Nothing contained in this Agreement (a)
shall constitute the Administrator and the Issuer as partners or members of
any partnership, joint venture, association, syndicate, unincorporated
business or other separate entity, (b) shall be construed to impose any
liability as such on either of them or (c) shall be deemed to confer on either
of them any express, implied or apparent authority to incur any obligation or
liability on behalf of the other.
Section 7. Other Activities of Administrator. Nothing herein shall
prevent the Administrator or any of its shareholders, directors, officers,
employees, subsidiaries or Affiliates from engaging in other businesses or, in
its sole discretion, from acting in a similar capacity as an administrator for
any other person or entity even though such person or entity may engage in
business activities similar to those of the Issuer.
Section 8. Term of Agreement; Resignation and Removal of Administrator.
(a) This Agreement shall continue in force until the payment in full of
the Bonds (and any Additional Bonds), and any other amount which may become
due and payable under the Indenture (or under any Additional Indenture), upon
which event this Agreement shall automatically terminate. Notwithstanding the
foregoing, the Administrator's obligation under Section 11(c) to indemnify
Customers shall survive termination of this Agreement.
(b) The Administrator shall not resign from the obligations and duties
imposed on it as Administrator under this Agreement except upon a
determination that the performance of its duties under this Agreement shall no
longer be permissible under applicable law. Notice of any such determination
permitting the resignation of the Administrator shall be communicated to the
Issuer, the Commission, each Trustee and each Rating Agency at the earliest
4
practicable time (and, if such communication is not in writing, shall be
confirmed in writing at the earliest practicable time), and any such
determination shall be evidenced by an Opinion of Counsel to such effect
delivered to the Issuer, the Commission and each Trustee concurrently with or
promptly after such notice.
(c) Subject to satisfaction of the Commission Condition set forth in
Section 13(b) of this Agreement, the Administrator may be removed immediately
upon written notice of termination to the Administrator if any of the
following events shall occur.
(i) the Administrator shall default in the performance of any of
its duties under this Agreement and, after notice of such default, shall
fail to cure such default within 30 days (or, if such default cannot be
cured in such time, shall fail to give within 30 days such assurance of
cure as shall be reasonably satisfactory to the Issuer and the
Commission); or
(ii) an Insolvency Event occurs with respect to the Administrator;
The Administrator agrees that if an event specified in clause (ii) of this
Section 8(c) shall occur, it shall give written notice thereof to the Issuer,
the Commission and the Trustee within seven days after the happening of such
event.
(d) No resignation or removal of the Administrator pursuant to this
Section 8 shall be effective until a successor Administrator shall have been
appointed by the Issuer, the Rating Agency Condition shall have been satisfied
with respect to the proposed appointment, the Commission Condition set forth
in Section 13(b) of this Agreement has been satisfied, and such successor
Administrator shall have agreed in writing to be bound by the terms of this
Agreement in the same manner as the Administrator is bound hereunder.
(e) No Administrator default may be waived without satisfaction of the
Commission Condition set forth in Section 13(b) of this Agreement.
Section 9. Action upon Termination, Resignation or Removal. Promptly
upon the effective date of termination of this Agreement pursuant to Section
8(a), the resignation or removal of the Administrator pursuant to Section 8(b)
or the removal of the Administrator under Section 8(c), the Administrator
shall be entitled to be paid all fees and reimbursable expenses accruing to it
to the date of such termination, resignation or removal. The Administrator
shall forthwith upon such termination pursuant to Section 8(a) deliver to the
Issuer all property and documents of or relating to the Collateral then in the
custody of the Administrator. In the event of the resignation or removal of
the Administrator pursuant to Section 8(b) or the removal of the Administrator
under Section 8(c), the Administrator shall cooperate with the Issuer and take
all reasonable steps requested to assist the Issuer in making an orderly
transfer of the duties of the Administrator.
Section 10. Administrator's Liability. (a) Except as otherwise provided
herein, the Administrator assumes no liability other than to render or stand
ready to render the services called for herein, and neither the Administrator
nor any of its shareholders, directors, officers, employees, subsidiaries or
Affiliates shall be responsible for any action of the Issuer or any of the
Member, Special Members, Managers, employees, subsidiaries or Affiliates of
the Issuer. The Administrator shall not be liable for nor shall it have any
obligation with regard to any of the
5
liabilities, whether direct or indirect, absolute or contingent of the Issuer
or any of the Member, Special Members, Managers, employees, subsidiaries or
Affiliates of the Issuer.
(b) The Administrator acknowledges that the Commission has authority to
enforce all provisions of this Agreement for the benefit of Customers,
including without limitation the enforcement of Section 11(c). Notwithstanding
anything to the contrary contained in this Agreement, for the avoidance of
doubt, any right, remedy or claim to which any Customer may be entitled
pursuant to this Agreement may be asserted or exercised only by the Commission
for the benefit of such Customer.
Section 11. Indemnity.
(a) The Issuer shall indemnify the Administrator, its shareholders,
directors, officers, employees and Affiliates against all losses, claims,
damages, penalties, judgments, liabilities and expenses (including all
expenses of litigation or preparation therefor whether or not the
Administrator is a party thereto) which any of them may pay or incur arising
out of or relating to this Agreement and the services called for herein;
provided, however, that such indemnity shall not apply to any such loss,
claim, damage, penalty, judgment, liability or expense resulting from the
Administrator's gross negligence, willful misconduct or bad faith in the
performance of its obligations hereunder.
(b) The Administrator shall indemnify the Issuer, its Member, Managers
and employees against all losses, claims, damages, penalties, judgments,
liabilities and expenses (including all expenses of litigation or preparation
therefor whether or not the Issuer is a party thereto) which any of them may
incur as a result of the Administrator's gross negligence, willful misconduct
or bad faith in the performance of its obligations hereunder.
(c) If the Administrator remains an entity subject to the Commission's
regulatory authority as a public utility (or otherwise for ratemaking
purposes), the Administrator hereby acknowledges and agrees that the
Commission, subject to the outcome of an appropriate Commission proceeding,
may take such action as it deems necessary or appropriate under its regulatory
authority to require the Administrator to make Customers whole for any Losses
they incur by reason of the Administrator's bad faith, willful misconduct, or
failure to conduct itself prudently as may be determined by the Commission,
including without limitation Losses attributable to higher Storm-Recovery
Charges imposed on Customers by reason of additional Operating Expenses. The
Administrator hereby acknowledges and agrees that such action by the
Commission may include, but is not limited to, adjustments to the
Administrator's other regulated rates and charges or credits to Customers. If
the Administrator does not remain, or is not subject to, the Commission's
regulatory authority as a public utility (or otherwise for ratemaking
purposes), such Administrator shall indemnify the Commission, on behalf of the
Customers, for any Losses incurred by Customers by reason of the
Administrator's negligence, misconduct, or termination for cause, including
without limitation Losses attributable to higher Storm-Recovery Charges
imposed on Customers by reason of additional Operating Expenses. The
Administrator's indemnification under this Section 11(c) shall survive the
termination of this Agreement, and any amounts paid with respect thereto shall
be remitted and deposited with the Trustee for deposit into the Collection
Account, unless otherwise directed by the Commission.
6
Section 12. Notices. All notices, directions, consents and waivers
required under the terms and provisions of this Agreement shall be in English
and in writing, and any such notice, direction, consent or waiver may be given
by United States first-class mail, reputable overnight courier service,
facsimile transmission or electronic mail (confirmed by telephone, United
States first-class mail or reputable overnight courier service in the case of
notice by facsimile transmission or electronic mail) or any other customary
means of communication, and any such notice, direction, consent or waiver
shall be effective when delivered or transmitted, or if mailed, five days
after deposit in the United States first-class mail with proper postage for
first-class mail prepaid,
if to the Issuer, to: FPL Recovery Funding LLC
700 Universe Boulevard
Juno Beach, FL 33408-0420
Attention: Treasurer
Telephone: (561) 694-4000
if to the Administrator, to: Florida Power & Light Company
700 Universe Boulevard
Juno Beach, FL 33408-0420
Attention: Treasurer
Telephone: (561) 694-4000
or, as to each of the foregoing, at such other address as shall be designated
by written notice to the other party.
Section 13. Amendments.
(a) Subject to Section 13(b), this Agreement may be amended by the
Administrator and the Issuer, with the consent of each Trustee and the
satisfaction of the Rating Agency Condition. Promptly after the execution of
any such amendment or consent, the Issuer shall furnish written notification
of the substance of such amendment or consent to each of the Rating Agencies.
Prior to the execution of any amendment to this Agreement, the Issuer and each
Trustee shall be entitled to receive and rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by
this Agreement and the Opinion of Counsel referred to in Section 3.06 of the
Servicing Agreement. Subject to Section 13(b), the Issuer and each Trustee
may, but shall not be obligated to, enter into any such amendment which
affects their own rights, duties or immunities under this Agreement or
otherwise
(b) Commission Condition. Notwithstanding anything to the contrary in
this Section 13, no amendment or modification of this Agreement shall be
effective, nor shall any action requiring satisfaction of this condition
pursuant to Section 8(c), Section 8(d), Section 8(e), or Section 14 of this
Agreement be taken or be effective except upon satisfaction of the conditions
precedent in this paragraph (b).
(i) At least 15 days prior to the effectiveness of any such amendment or
modification and after obtaining the other necessary approvals set forth in
Section 13(a) (except that the
7
consent of each Trustee may be subject to the consent of Bondholders if such
consent is required or sought by the Trustee in connection with such amendment
or modification) the Administrator shall have delivered to the Commission's
executive director and general counsel written notification of any proposed
amendment, which notification shall contain:
(A) a reference to Docket No. 060038-EI;
(B) an Officer's Certificate stating that the proposed amendment
or modification has been approved by all parties to this Agreement; and
(C) a statement identifying the person to whom the Commission is
to address any response to the proposed amendment or to request
additional time.
(ii) If the Commission or an authorized representative of the
Commission, within 15 days (subject to extension as provided in clause (iii))
of receiving a notification complying with subparagraph (i), shall have
delivered to the office of the person specified in clause (i)(C) a written
statement that the Commission might object to the proposed amendment or
modification, then, subject to clause (iv) below, such proposed amendment or
modification shall not be effective unless and until the Commission
subsequently delivers a written statement that it does not object to such
proposed amendment or modification; or
(iii) If the Commission or an authorized representative of the
Commission, within 15 days of receiving a notification complying with
subparagraph (i), shall have delivered to the office of the person specified
in clause (i)(C) a written statement requesting an additional amount of time
not to exceed thirty days in which to consider such proposed amendment or
modification, then such proposed amendment or modification shall not be
effective if, within such extended period, the Commission shall have delivered
to the office of the person specified in clause (i)(C) a written statement as
described in subparagraph (ii), unless and until the Commission subsequently
delivers a written statement that it does not object to such proposed
amendment or modification.
(iv) If (A) the Commission or an authorized representative of the
Commission, shall not have delivered written notice that the Commission might
object to such proposed amendment or modification within the time periods
described in subparagraphs (ii) or (iii), whichever is applicable, or (B) the
Commission or authorized representative of the Commission, has delivered such
written notice but does not within 60 days of the delivery of the notification
in (a) above, provide subsequent written notice confirming that it does in
fact object and the reasons therefore or advise that it has initiated a
proceeding to determine what action it might take with respect to the matter,
then the Commission shall be conclusively deemed not to have any objection to
the proposed amendment or modification and such amendment or modification may
subsequently become effective upon satisfaction of the other conditions
specified in Section 13(a).
(v) Following the delivery of a statement from the Commission or an
authorized representative of the Commission to the Administrator under
subparagraph (ii), the Administrator and the Issuer shall have the right at
any time to withdraw from the Commission further consideration of any proposed
amendment, modification or other action.
8
(vi) For the purpose of this Section 13, an "authorized representative
of the Commission" means any person authorized to act on behalf of the
Commission, as evidenced by an Opinion of Counsel (which may be the general
counsel) to the Commission.
Section 14. Successors and Assigns. This Agreement may not be assigned
by the Administrator unless such assignment is previously consented to in
writing by the Issuer, the Commission and the Trustee and subject to
satisfaction of the Rating Agency Condition in respect thereof. Any assignment
with such consent and satisfaction, if accepted by the assignee, shall bind
the assignee hereunder in the same manner as the Administrator is bound
hereunder. Notwithstanding the foregoing, this Agreement may be assigned by
the Administrator without the consent of the Issuer, the Commission or the
Trustee to a corporation or other organization that is a successor (by merger,
consolidation or purchase of assets) to the Administrator or to any affiliate
of the Administrator; provided that such successor corporation or other
organization executes and delivers to the Issuer and the Commission a written
agreement in which such corporation or other organization agrees to be bound
hereunder by the terms of said assignment in the same manner as the
Administrator is bound hereunder. Subject to the foregoing, this Agreement
shall bind any successors or assigns of the parties hereto.
Section 15. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 16. Headings. The Section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the
meaning, construction or affect of this Agreement.
Section 17. Counterparts. This Agreement may be executed in
counterparts, each of which when so executed shall be an original, but all of
which together shall constitute but one and the same agreement.
Section 18. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
Section 19. Nonpetition Covenant. Notwithstanding any prior termination
of this Agreement or the Indenture, the Administrator hereby covenants and
agrees that it shall not, prior to the date which is one year and one day
after termination of the Indenture and the payment in full of the Bonds, any
other amounts owed under the Indenture, including any amounts owed to
third-party credit enhancers, and any amounts owed by the Issuer under any
hedge agreement, acquiesce, petition or otherwise invoke or cause the Issuer
to invoke the process of any court or government authority for the purpose of
commencing or sustaining an involuntary case against the Issuer under any
federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar
9
official of the Issuer or any substantial part of its property, or ordering
the winding up or liquidation of the affairs of the Issuer.
10
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective duly authorized officers as of
the date and year first above written.
FPL RECOVERY FUNDING LLC,
as Issuer
By: /s/ Kathy Beilhart
________________________________
Name: Kathy Beilhart
________________________________
Title: Assistant Treasurer
_______________________________
FLORIDA POWER & LIGHT COMPANY,
as Administrator
By: /s/ Kathy Beilhart
________________________________
Name: Kathy Beilhart
________________________________
Title: Assistant Treasurer
________________________________
11