Exhibit 1(a)
FLORIDA POWER & LIGHT COMPANY
First Mortgage Bonds
Underwriting Agreement
[Date]
To the Representatives named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
AGREEMENT between FLORIDA POWER & LIGHT COMPANY, a Florida corporation
("FPL"), and the several Underwriters named in Schedule II hereto relating to
the issuance and sale by FPL of its First Mortgage Bonds of the series
designation, with the terms and in the principal amount as set forth in this
agreement (the "Bonds").
The term "Underwriters" as used herein shall be deemed to mean the several
firms or corporations named in Schedule II hereto and any underwriter
substituted as provided in Section 4 hereof and the term "Underwriter" shall be
deemed to mean one of such Underwriters. If the firms listed in Schedule I
hereto (the "Representatives") are the same as the firms listed in Schedule II
hereto, then the terms "Underwriters" and "Representatives", as used herein,
shall each be deemed to refer to such firms. The Representatives represent that
they have been authorized by each Underwriter to enter into this agreement on
behalf of such Underwriter and to act for it in the manner herein provided. All
obligations of the Underwriters hereunder are several and not joint. If more
than one firm is named in Schedule I any action under or in respect of this
agreement may be taken by such firms jointly as the Representatives or by one of
the firms acting on behalf of the Representatives and such action will be
binding upon all the Underwriters.
The Bonds will be a series of First Mortgage Bonds ("First Mortgage Bonds")
issued by FPL under its Mortgage and Deed of Trust, dated as of January 1, 1944,
to Bankers Trust Company, as Trustee (the "Mortgage Trustee"), and The Florida
National Bank of Jacksonville (now resigned), as heretofore supplemented and as
it will be further supplemented by a supplemental indenture relating to the
Bonds ("Supplemental Indenture") in substantially the form heretofore delivered
to the Representatives. Such Mortgage and Deed of Trust as it has been and will
be so supplemented is hereinafter called the "Mortgage".
FPL has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3, including a prospectus
("registration statement No. 333-_____"), for the registration of $_______
aggregate principal amount of its First Mortgage Bonds under the Securities Act
of 1933, as amended (the "Securities Act"), which registration statement has
been declared effective by the Commission. References herein to the term
"Registration Statement" as of any given date shall mean registration statement
No. 333-____, as amended or supplemented to such date, including all documents
incorporated by reference therein as of such date pursuant to Item 12 of Form
S-3 ("Incorporated Documents"). References herein to the term "Prospectus" as of
any given date shall mean the prospectus forming a part of registration
statement No. 333-_____, as supplemented by a prospectus supplement relating to
the Bonds proposed to be filed pursuant to Rule 424 of the general rules and
regulations under the Securities Act ("Rule 424"), and as further amended or
supplemented as of such date (other than amendments or supplements relating to
First Mortgage Bonds other than the Bonds), including all Incorporated
Documents. References herein to the term "Effective Date" shall be deemed to
refer to the later of the time and date that registration statement No.
333-_____ was declared effective and the time and date of the filing thereafter
of FPL's most recent Annual Report on Form 10-K, if such filing is made prior to
the Closing Date (as hereinafter defined). Prior to the termination of the
offering of the Bonds, FPL will not file any amendment to the Registration
Statement or any amendment or supplement to the Prospectus without prior notice
to the Representatives and to Pillsbury Winthrop LLP, who are acting as counsel
for the several Underwriters ("Counsel for the Underwriters"), or any such
amendment or supplement to which the Representatives shall reasonably object in
writing, or which shall be unsatisfactory to Counsel for the Underwriters.
SECTION 1. Representations and Warranties of FPL. FPL represents and
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warrants to the several Underwriters that:
(a) The Registration Statement at the Effective Date fully complied,
and the Prospectus both on the date it is filed with the Commission pursuant to
Rule 424 (such date, the "424 Date") and at the Closing Date (as hereinafter
defined), and the Registration Statement and the Mortgage at the Closing Date,
will fully comply, in all material respects with the applicable provisions of
the Securities Act and the Trust Indenture Act of 1939, as amended (the "1939
Act"), as applicable and, in each case, the applicable instructions, rules and
regulations of the Commission thereunder; at the Effective Date, the
Registration Statement did not, and at the Closing Date, the Registration
Statement will not, contain an untrue statement of a material fact, or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus, on the 424 Date and at the
Closing Date, will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements contained
therein, in the light of the circumstances under which they were made, not
misleading; and the Incorporated Documents, when filed with the Commission,
fully complied or will fully comply in all material respects with the applicable
provisions of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the applicable instructions, rules and regulations of the Commission
thereunder; provided, that the foregoing representations and warranties in this
subsection (a) shall not apply to statements or omissions made in reliance upon
and in conformity with information furnished in writing to FPL by or on behalf
of any Underwriter for use in connection with the preparation of the
Registration Statement or the Prospectus, or to any statements in or omissions
from any Statement of Eligibility on Form T-1, or amendments thereto, of the
Mortgage Trustee.
(b) The financial statements included as part of or incorporated by
reference in the Prospectus present fairly the financial condition and
operations of FPL at the respective dates or for the respective periods to which
they apply; such financial statements have been prepared in each case in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved except as otherwise indicated in the
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Registration Statement; and Deloitte & Touche LLP, who have audited the audited
financial statements, are independent public accountants as required by the
Securities Act and the Exchange Act and the rules and regulations of the
Commission thereunder.
(c) Except as reflected in or contemplated by the Registration
Statement and the Prospectus, since the respective most recent dates as of which
information is given in the Registration Statement and Prospectus, there has not
been any material adverse change in the business, properties or financial
condition of FPL nor has any material transaction been entered into by FPL other
than changes and transactions contemplated by the Registration Statement and
Prospectus, and transactions in the ordinary course of business. FPL has no
material contingent obligation which is not disclosed in the Registration
Statement and Prospectus.
(d) The consummation of the transactions herein contemplated and the
fulfillment of the terms hereof on the part of FPL to be fulfilled have been
duly authorized by all necessary corporate action of FPL in accordance with the
provisions of its Restated Articles of Incorporation, as amended, (the
"Charter"), by-laws and applicable law, and the Bonds when issued and delivered
as provided herein will constitute legal, valid and binding obligations of FPL
in accordance with their terms, except as limited or affected by bankruptcy,
insolvency, reorganization, receivership, moratorium or other laws affecting
mortgagees' and other creditors' rights and remedies generally and general
principles of equity.
(e) The consummation of the transactions herein contemplated and the
fulfillment of the terms hereof and the compliance by FPL with all the terms and
provisions of the Mortgage will not result in a breach of any of the terms or
provisions of, or constitute a default under, FPL's Charter, by-laws or any
indenture, mortgage, deed of trust or other agreement or instrument to which FPL
is now a party, or violate any law or any order, rule, decree or regulation
applicable to FPL of any Federal or state court, regulatory board or body or
administrative agency having jurisdiction over FPL or any of its property,
except where such breach, default or violation would not have a material adverse
effect on the business, properties or financial condition of FPL.
(f) All the property to be subjected to the lien of the Mortgage will
be adequately described therein.
SECTION 2. Purchase and Sale. On the basis of the representations and
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warranties herein contained, and subject to the terms and conditions in this
agreement set forth, FPL agrees to sell to the respective Underwriters,
severally and not jointly, and the respective Underwriters agree, severally and
not jointly, to purchase from FPL, the respective principal amounts of Bonds set
forth opposite their respective names in Schedule II hereto at the purchase
price set forth in Schedule I hereto.
SECTION 3. Public Offering. The Underwriters propose to make a bona fide
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public offering of the Bonds as set forth in the Prospectus, such public
offering to be made as soon after the execution of this agreement as
practicable, subject, however, to the terms and conditions of this agreement.
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SECTION 4. Time and Place of Closing, Default of Underwriter. Delivery of
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the Bonds and payment therefor by wire transfer in federal funds shall be made
at the time, date and place set forth in Schedule I hereto, or at such other
time, date or place as shall be agreed upon in writing by FPL and the
Representatives. The hour and date of such delivery and payment are herein
called the "Closing Date".
The Bonds shall be delivered to the Representatives for the respective
accounts of the Underwriters against payment by the several Underwriters through
the Representatives of the purchase price thereof. Delivery of the Bonds shall
be made through the facilities of The Depository Trust Company unless the
Representatives and FPL shall otherwise agree. For the purpose of expediting the
checking of the Bonds by the Representatives on behalf of the Underwriters, FPL
agrees to make such Bonds available to the Representatives for such purpose at
the office of Thelen Reid & Priest LLP, 40 West 57th Street, New York, New York
10019 not later than 2:00 p.m., New York City time, on the business day
preceding the Closing Date, or at such other time and place as may be agreed
upon by FPL and the Representatives. If any Underwriter shall fail to purchase
and pay for the principal amount of the Bonds which such Underwriter has agreed
to purchase and pay for hereunder (otherwise than by reason of any failure on
the part of FPL to comply with any of the provisions contained herein), the
non-defaulting Underwriters shall be obligated to take up and pay for (in
addition to the respective principal amount of the Bonds set forth opposite
their respective names in Schedule II hereto) the principal amount of the Bonds
which such defaulting Underwriter or Underwriters failed to take up and pay for,
up to a principal amount thereof equal to, in the case of each such remaining
Underwriter, ten percent (10%) of the principal amount of the Bonds set forth
opposite the name of such remaining Underwriter in said Schedule II hereto, and
such remaining Underwriters shall have the right, within 24 hours of receipt of
such notice, either to take up and pay for (in such proportion as may be agreed
upon among them), or to substitute another Underwriter or Underwriters,
satisfactory to FPL, to take up and pay for, the remaining principal amount of
the Bonds which the defaulting Underwriter or Underwriters agreed but failed to
purchase. If any unpurchased Bonds still remain, then FPL shall be entitled to a
further period of 24 hours within which to procure another party or other
parties, members of the National Association of Securities Dealers, Inc. (or, if
not members of such Association, who are not eligible for membership in said
Association and who agree (i) to make no sales within the United States, its
territories or its possessions or to persons who are citizens thereof or
residents therein and (ii) in making sales to comply with said Association's
Conduct Rules) and satisfactory to the Representatives to purchase such Bonds on
the terms set forth in this agreement. In the event that, within the respective
prescribed periods, the non-defaulting Underwriters notify FPL that they have
arranged for the purchase of such Bonds, or FPL notifies the non-defaulting
Underwriters that it has arranged for the purchase of such Bonds, the
non-defaulting Underwriters or FPL shall have the right to postpone the Closing
Date for a period of not more than three full business days beyond the
expiration of the respective prescribed periods in order to effect whatever
changes may thus be made necessary in the Registration Statement or the
Prospectus or in any other documents or arrangements. In the event that neither
the non-defaulting Underwriters nor FPL has arranged for the purchase of such
Bonds by another party or parties as above provided, then this agreement shall
terminate without any liability on the part of FPL or any Underwriter (other
than an Underwriter which shall have failed or refused, otherwise than for some
reason sufficient to justify, in accordance with the terms hereof, the
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cancellation or termination of its obligations hereunder, to purchase and pay
for the Bonds which such Underwriter has agreed to purchase as provided in
Section 2 hereof), except as otherwise provided in subsections (c) and (e) of
Section 5 hereof.
SECTION 5. Covenants of FPL. FPL agrees that:
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(a) It will promptly transmit copies of the Prospectus to the
Commission for filing pursuant to Rule 424.
(b) It will deliver to the Representatives and to Counsel for the
Underwriters one signed copy of the Registration Statement or, if a signed copy
is not available, one conformed copy of the Registration Statement certified by
an officer of FPL to be in the form as originally filed, including all
Incorporated Documents and all exhibits except those incorporated by reference,
which relate to the Bonds, including a signed or conformed copy of each consent
and certificate included therein or filed as an exhibit thereto. FPL will
deliver to the Underwriters through the Representatives as soon as practicable
after the date of this agreement as many copies of the Prospectus as the
Representatives may reasonably request for the purposes contemplated by the
Securities Act. FPL will promptly advise the Representatives of the issuance of
any stop order under the Securities Act with respect to the Registration
Statement or the institution of any proceedings therefor of which FPL shall have
received notice prior to the termination of the offering of the Bonds hereunder.
FPL will use its best efforts to prevent the issuance of any such stop order and
to secure the prompt removal thereof, if issued.
(c) It will pay all expenses in connection with (i) the preparation
and filing by it of the Registration Statement and Prospectus, (ii) the issuance
and delivery of the Bonds as provided in Section 4 hereof, (iii) the
preparation, execution, filing and recording of the Supplemental Indenture, and
(iv) the printing and delivery to the Representatives for the account of the
Underwriters, in reasonable quantities, of copies of the Registration Statement
and the Prospectus and the Supplemental Indenture and will pay all taxes, if any
(but not including any transfer taxes), on the issuance of the Bonds and the
recordation of the Supplemental Indenture. FPL shall not, however, be required
to pay any amount for any expenses of the Representatives or any of the
Underwriters, except as provided in Sections 6 and 7 hereof and except that if
this agreement shall be terminated in accordance with the provisions of Section
6, 7 or 9 hereof, FPL will pay the fees and disbursements of Counsel for the
Underwriters, whose fees and disbursements the Underwriters agree to pay in any
other event. FPL shall not in any event be liable to any of the several
Underwriters for damages on account of loss of anticipated profits.
(d) During a period of nine months after the date of this agreement,
if any event relating to or affecting FPL or of which FPL shall be advised in
writing by the Representatives shall occur which, in FPL's opinion, should be
set forth in a supplement to or an amendment of the Prospectus in order to make
the Prospectus not misleading in light of the circumstances when it is delivered
to a purchaser, FPL will forthwith at its expense prepare and furnish to the
Representatives a reasonable number of copies of a supplement or supplements or
an amendment or amendments to the Prospectus which will supplement or amend the
Prospectus so that as supplemented or amended it will not include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading; provided that should
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such event relate solely to activities of any of the Underwriters, then the
Underwriters shall assume the expense of preparing and furnishing copies of any
such amendment or supplement. In case any Underwriter is required to deliver a
Prospectus after the expiration of nine months after the date of this agreement,
FPL upon the request of the Representatives will furnish to the Representatives,
at the expense of such Underwriter, a reasonable quantity of a supplemented or
amended Prospectus or supplements or amendments to the Prospectus complying with
Section 10 of the Securities Act.
(e) It will furnish such proper information as may be lawfully
required and otherwise cooperate in qualifying the Bonds for offer and sale
under the blue sky laws of such jurisdictions as the Representatives may
designate and will pay filing fees and expenses (including fees and expenses of
counsel) in the aggregate not exceeding $7,500, provided that FPL shall not be
required to qualify as a foreign corporation or dealer in securities, or to file
any consents to service of process under the laws of any jurisdiction, or to
meet other requirements deemed by FPL to be unduly burdensome.
(f) It will make generally available to its security holders, as soon
as practicable, an earnings statement (which need not be audited, unless
required so to be under Section 11(a) of the Securities Act) in reasonable
detail covering the 12 months beginning not later than the first day of the
quarter next succeeding the month in which occurred the effective date of the
Registration Statement as defined in Rule 158 under the Securities Act.
(g) On or before the Closing Date, it will, if applicable, cause (i)
at least one counterpart of the Supplemental Indenture to be duly recorded in
the States of Florida or Georgia and (ii) all intangible and documentary stamp
taxes due in connection with the issuance of the Bonds and the recording of the
Supplemental Indenture to be paid. Within 30 days following the Closing Date,
FPL will, if applicable, cause the Supplemental Indenture to be duly recorded in
all other counties in which property of FPL is located.
SECTION 6. Conditions of Underwriters' Obligations. The several obligations
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of the Underwriters to purchase and pay for the Bonds shall be subject to the
accuracy of, and compliance with, the representations and warranties of FPL
contained herein on the Closing Date, to the performance by FPL of its
obligations to be performed hereunder on or prior to the Closing Date and to the
following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date; no order of the Commission
directed to the adequacy of any Incorporated Document shall have been issued; no
proceedings for either such purpose shall be pending before, or threatened by,
the Commission on such date; and the Representatives shall have received, prior
to payment for the Bonds, a certificate of FPL signed by an officer of FPL and
dated the Closing Date to the effect that, to the best of his or her knowledge,
no such order is in effect and no proceedings for such purpose are pending
before, or to the knowledge of FPL threatened by, the Commission.
(b) On the Closing Date, there shall be in full force and effect an
authorization of the Florida Public Service Commission with respect to the
issuance and sale of the Bonds on the terms herein stated or contemplated, and
containing no provision unacceptable to the Representatives by reason of the
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fact that it is materially adverse to FPL, it being understood that no
authorization provided to Counsel for the Underwriters and in effect at the date
of this agreement contains any such unacceptable provision.
(c) At the Closing Date, the Representatives shall have received from
Steel Hector & Davis LLP, counsel to FPL, a favorable opinion (with a copy
thereof for each of the Underwriters), which opinion will not pass upon
compliance with provisions of the blue sky laws of any jurisdiction, in form and
substance satisfactory to Counsel for the Underwriters, to the effect that:
(i) FPL is a validly organized and existing corporation and is in good
standing under the laws of the State of Florida, and is doing business in that
State, and has valid franchises, licenses and permits adequate for the conduct
of its business;
(ii) FPL is a corporation duly authorized by its Charter to conduct
the business which it is now conducting as set forth in the Prospectus; FPL is
subject, as to retail rates and services, issuance of securities, accounting and
certain other matters, to the jurisdiction of the Florida Public Service
Commission; and FPL is subject, as to wholesale rates, accounting and certain
other matters, to the jurisdiction of the Federal Energy Regulatory Commission;
(iii) the Mortgage has been duly and validly authorized by all
necessary corporate action, has been duly and validly executed and delivered,
and is a valid and binding instrument enforceable in accordance with its terms,
except as limited or affected by bankruptcy, insolvency, reorganization,
receivership, moratorium or other laws affecting mortgagees' and other
creditors' rights and remedies generally and general principles of equity;
(iv) the Bonds are valid and binding obligations of FPL in accordance
with their terms, except as limited or affected by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws affecting mortgagees' and
other creditors' rights and remedies generally and general principles of equity,
and are entitled to the benefit of the security afforded by the Mortgage;
(v) the Registration Statement, at the Effective Date, and the
Prospectus, at the 424 Date (except as to the financial statements and other
financial or statistical data contained or incorporated by reference therein,
upon which such opinion need not pass and except for those parts of the
Registration Statement that constitute the Statement of Eligibility on Form T-1,
upon which such opinion need not pass), complied as to form in all material
respects with the applicable requirements of the Securities Act and the
applicable instructions, rules and regulations of the Commission thereunder and
the Incorporated Documents (except as to the financial statements and other
financial or statistical data contained or incorporated by reference therein,
upon which such opinion need not pass), at the time they were filed with the
Commission, complied as to form in all material respects with the applicable
requirements of the Exchange Act and the applicable instructions, rules and
regulations of the Commission thereunder. The Registration Statement has become,
and is, at the Closing Date, effective under the Securities Act, and to the best
of the knowledge of said counsel, no proceedings for a stop order with respect
to the Registration Statement are pending or threatened under Section 8 of the
Securities Act;
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(vi) the consummation of the transactions herein contemplated and the
fulfillment of the terms hereof and the compliance by FPL with all the terms and
provisions of the Mortgage will not result in a breach of any of the terms or
provisions of, or constitute a default under, the Charter or by-laws of FPL or
any indenture, mortgage, deed of trust or other agreement or instrument the
terms of which are known to such counsel to which FPL is now a party, except
where such breach or default would not have a material adverse effect on the
business, properties or financial condition of FPL;
(vii) nothing has come to the attention of said counsel that would
lead them to believe that the Registration Statement (except as to financial
statements and other financial or statistical data contained or incorporated by
reference therein, upon which such opinion need not pass and except for those
parts of the Registration Statement that constitute the Statements of
Eligibility on Form T-1, upon which such opinion need not pass), at the
Effective Date, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, at the 424 Date, and
at the Closing Date (except as aforesaid) included or includes, any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, provided that such
counsel may state that their belief is based upon their participation in the
preparation of the Registration Statement and the Prospectus and any supplements
and amendments thereto and review and discussion of the contents thereof, but is
without independent check or verification except as specified;
(viii) the Bonds are being issued and sold pursuant to the authority
contained in orders of the Florida Public Service Commission, which authority is
adequate to permit the issuance and sale of the Bonds. To the best of the
knowledge of said counsel, said authorization is still in full force and effect,
and no further approval, authorization, consent or order of any public board or
body (other than in connection or in compliance with the provisions of the blue
sky laws of any jurisdiction) is legally required for the authorization of the
issuance and sale of the Bonds;
(ix) the statements made in the Prospectus under the headings
"Description of the Bonds" and ["Certain Terms of the Offered Bonds"], 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;
(x) the Mortgage is duly qualified under the 1939 Act;
(xi) this agreement has been duly and validly authorized, executed and
delivered by FPL;
(xii) if Bonds are to be sold pursuant to this agreement on the
Closing Date, as to the Mortgaged and Pledged Property, as defined in the
Mortgage, FPL has satisfactory title to any easements and personal properties,
and good and marketable or insurable title in fee simple to any other real
properties (except as FPL's interest is stated to be otherwise), subject only to
Excepted Encumbrances, as defined in the Mortgage, to any lien, if any, existing
or placed thereon at the time of acquisition thereof by FPL, to minor defects
and encumbrances customarily found in the case of properties of like size and
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character and which, in the opinion of said counsel, would not impair the use
thereof by FPL (all of which title exceptions, encumbrances, liens and defects
are hereinafter referred to as "Exceptions"), and to the lien of the Mortgage;
the Mortgage constitutes a valid, direct, and first mortgage lien upon the
Mortgaged and Pledged Property now owned by FPL, subject, however, to the
Exceptions and as set forth in the last sentence of this paragraph; and the
description of properties in the Mortgage is adequate to constitute the Mortgage
a lien on Mortgaged and Pledged Property hereafter acquired by FPL, subject,
however, to the Exceptions and except as limited or affected by bankruptcy,
insolvency, reorganization, receivership, moratorium or other laws affecting
mortgagees' and other creditors' rights and remedies generally and general
principles of equity. The Supplemental Indenture is in proper form for recording
in all places required; and upon such recording, the Supplemental Indenture will
constitute adequate record notice to perfect the lien of the Mortgage as to all
Mortgaged and Pledged Property acquired by FPL subsequent to the recording of
the ________ Supplemental Indenture and prior to the recording of the
Supplemental Indenture;
(xiii) except as stated or referred to in the Prospectus, there are no
material pending legal proceedings to which FPL is a party or of which property
of FPL is the subject which if determined adversely would have a material
adverse effect on FPL, and, to the best of the knowledge of said counsel, no
such proceeding is known to be contemplated by governmental authorities; and
(xiv) the information contained in the Prospectus, which is stated
therein to have been made in reliance upon the authority of said counsel or is
specifically attributed to them, has been reviewed by them and is correct.
In said opinion such counsel may rely as to all matters of New York
law on an opinion of Thelen Reid & Priest LLP and as to matters relating to
Mortgaged and Pledged Property located in the State of Georgia on (i) prior
opinions provided to FPL on matters of Georgia law and (ii) a current opinion
from Georgia counsel.
(d) At the Closing Date, the Representatives shall have received from
Thelen Reid & Priest LLP, counsel to FPL, a favorable opinion (with a copy
thereof for each of the Underwriters), which opinion will not pass upon
compliance with provisions of the blue sky laws of any jurisdiction, in form and
substance satisfactory to Counsel for the Underwriters, to the same effect with
respect to matters enumerated in paragraphs (iii) - (xi) in subsection (c) of
this Section 6. In said opinion such Counsel may rely as to all matters of
Florida law on the opinion of Steel Hector & Davis LLP.
(e) At the Closing Date, the Representatives shall have received from
Counsel for the Underwriters a favorable opinion (with a copy thereof for each
of the Underwriters) to the same effect with respect to the matters enumerated
in (iii) - (v), (vii) and (ix) - (xi) of subsection (c) of this Section 6 as the
opinion required by said subsection (c). In said opinion such counsel may rely
as to all matters of Florida law on the opinion of Steel Hector & Davis LLP, and
will not pass upon the incorporation of FPL, titles to property, franchises or
the lien of the Mortgage.
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(f) At the Closing Date, the Representatives shall have received from
Deloitte & Touche LLP a letter (with copies thereof for each of the
Underwriters) to the effect that (i) they are independent public accountants
with respect to FPL within the meaning of the Securities Act and the Exchange
Act and the applicable published rules and regulations thereunder; (ii) in their
opinion, the consolidated financial statements audited by them and incorporated
by reference in the Prospectus comply as to form in all material respects with
the applicable accounting requirements of the Securities Act and the Exchange
Act and the published rules and regulations thereunder; (iii) on the basis of a
reading of the unaudited condensed consolidated financial statements of FPL
incorporated by reference in the Prospectus, the latest available interim
unaudited consolidated financial statements of FPL since the close of FPL's most
recent audited fiscal year, the minutes and consents of the Board of Directors,
the Finance Committee of the Board of Directors, the Stock Issuance Committee of
the Board of Directors, and the Shareholder of FPL since the end of the most
recent audited fiscal year, and inquiries of officials of FPL who have
responsibility for financial and accounting matters (it being understood that
the foregoing procedures do not constitute an audit made in accordance with
generally accepted auditing standards and they would not necessarily reveal
matters of significance with respect to the comments made in such letter, and
accordingly that Deloitte & Touche LLP make no representation as to the
sufficiency of such procedures for the several Underwriters' purposes), nothing
has come to their attention which caused them to believe that (a) the unaudited
condensed consolidated financial statements of FPL incorporated by reference in
the Prospectus (1) do not comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the Exchange Act
and the published rules and regulations thereunder and (2) except as disclosed
in the Prospectus are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the audited
consolidated financial statements of FPL incorporated by reference in the
Prospectus, (b) at the date of the latest available interim balance sheet read
by them and at a specified date not more than five days prior to the Closing
Date there was any change in the common stock or additional paid-in capital,
increase in the preferred stock or long-term debt of FPL and its subsidiaries,
or decrease in its shareholders' equity, in each case as compared with amounts
shown in the most recent consolidated balance sheet incorporated by reference in
the Prospectus, except in all instances for changes, increases or decreases
which the Prospectus discloses have occurred or may occur, or as occasioned by
the declaration, provision for, or payment of dividends, or which are described
in such letter, or (c) for the period from the date of the most recent
consolidated balance sheet incorporated by reference in the Prospectus to the
latest available interim balance sheet read by them and for the period from the
date of the latest available interim balance sheet read by them to a specified
date not more than five days prior to the Closing Date, there were any
decreases, as compared with the corresponding period in the preceding year, in
total consolidated operating revenues or in net income or net income available
to FPL Group, Inc., except in all instances for decreases which the Prospectus
discloses have occurred or may occur, or which are described in such letter; and
(iv) they have carried out certain procedures and made certain findings, as
specified in such letter, with respect to certain amounts included in the
Prospectus and Exhibit 12 to the Registration Statement and such other items as
the Representatives may reasonably request.
(g) Since the respective most recent dates as of which information is
given in the Registration Statement and Prospectus and up to the Closing Date,
there shall have been no material adverse change in the business, properties or
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financial condition of FPL, except as reflected in or contemplated by the
Registration Statement and Prospectus, and since such dates and up to the
Closing Date, there shall have been no material transaction entered into by FPL
other than transactions disclosed by the Registration Statement and the
Prospectus and transactions in the ordinary course of business; and at the
Closing Date, the Representatives shall have received a certificate to such
effect, signed on behalf of FPL by an officer.
(h) All legal proceedings to be taken in connection with the issuance
and sale of the Bonds shall have been satisfactory in form and substance to
Counsel for the Underwriters.
In case any of the conditions specified above in this Section 6 shall not
have been fulfilled, this agreement may be terminated by the Representatives,
upon mailing or delivering written notice thereof to FPL. Any such termination
shall be without liability of any party to any other party except as otherwise
provided in subsections (c) and (e) of Section 5 hereof and except that in the
event of such termination by the Representatives, FPL shall reimburse the
Underwriters for out-of-pocket expenses reasonably incurred by them in
connection with the transactions contemplated by this agreement, not in excess,
however, of an aggregate of $5,000.
SECTION 7. Conditions of FPL's Obligations. The obligation of FPL to
-------------------------------
deliver the Bonds shall be subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, and no order directed to the adequacy of any Incorporated Document,
shall be in effect at the Closing Date, and no proceedings for either such
purpose shall be pending before, or threatened by, the Commission on such date.
(b) On the Closing Date there shall be in full force and effect an
authorization of the Florida Public Service Commission with respect to the
issuance and sale of the Bonds on the terms herein stated or contemplated, and
containing no provision unacceptable to FPL by reason of the fact that it is
materially adverse to FPL, it being understood that no authorization in effect
at the date of this agreement contains any such unacceptable provision.
In case any of the conditions specified in this Section 7 shall not have
been fulfilled, this agreement may be terminated by FPL upon mailing or
delivering written notice thereof to the Representatives. Any such termination
shall be without liability of any party to any other party, except as otherwise
provided in subsections (c) and (e) of Section 5 hereof and except that in the
event of such termination by FPL, FPL shall reimburse the Underwriters for
out-of-pocket expenses reasonably incurred by them in connection with the
transactions contemplated by this agreement, not in excess, however, of an
aggregate of $5,000.
SECTION 8. Indemnification.
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(a) FPL agrees to indemnify and hold harmless each Underwriter and
each person who controls any Underwriter within the meaning of Section 15 of the
Securities Act against any and all losses, claims, damages or liabilities, joint
or several, to which it or any of them may become subject under the Securities
Act or any other statute or common law, and to reimburse each such Underwriter
and controlling person for any legal or other expenses (including, to the extent
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hereinafter provided, reasonable counsel fees) incurred by them in connection
with investigating any such losses, claims, damages or liabilities or in
connection with defending any actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus (if used prior to the Effective Date), including all
Incorporated Documents, or in the Registration Statement or the Prospectus, or
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that the indemnity agreement contained in this paragraph
shall not apply to any such losses, claims, damages, liabilities, expenses or
actions arising out of, or based upon, any such untrue statement or alleged
untrue statement, or any such omission or alleged omission, if such statement or
omission was made in reliance upon and in conformity with information furnished
herein or to FPL in writing by or on behalf of any Underwriter, through the
Representatives or otherwise, for use in connection with the preparation of the
Registration Statement or the Prospectus or any amendment or supplement to
either thereof, or arising out of, or based upon, statements in or omissions
from the Statements of Eligibility on Form T-1 of the Mortgage Trustee and
provided, further, that the indemnity agreement contained in this paragraph in
respect of any preliminary prospectus shall not inure to the benefit of any
Underwriter (or of any person controlling such Underwriter) on account of any
such losses, claims, damages, liabilities, expenses or actions arising from the
sale of the Bonds to any person if such Underwriter shall have failed to send or
give to such person (i) with or prior to the written confirmation of such sale,
a copy of the Prospectus or the Prospectus as amended or supplemented, if any
amendments or supplements thereto shall have been furnished at or prior to the
time of written confirmation of the sale involved, but exclusive of any
Incorporated Documents, unless, with respect to the delivery of any amendment or
supplement, the alleged omission or alleged untrue statement is not corrected in
such amendment or supplement at the time of confirmation, or (ii) with or prior
to the delivery of such Bonds to such person, a copy of any amendment or
supplement to the Prospectus which shall have been furnished subsequent to such
written confirmation and prior to the delivery of such Bonds to such person,
exclusive of any Incorporated Documents, unless, with respect to the delivery of
any amendment or supplement, the alleged omission or alleged untrue statement
was not corrected in such amendment or supplement at the time of such delivery.
The indemnity agreement of FPL contained in this paragraph and the
representations and warranties of FPL contained in Section 1 hereof shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or any such controlling person, and shall
survive the delivery of the Bonds. The Underwriters agree promptly to notify
FPL, and each other Underwriter, of the commencement of any litigation or
proceedings against them or any of them or any such controlling person in
connection with the issuance and sale of the Bonds.
(b) Each Underwriter agrees to indemnify and hold harmless FPL, its
officers and directors, and each person who controls any thereof within the
meaning of Section 15 of the Securities Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Securities Act or other statute or common law, and to
reimburse each of them for any legal or other expenses (including, to the extent
hereinafter provided, reasonable counsel fees) incurred by them in connection
with investigating any such losses, claims, damages or liabilities, or in
connection with defending any actions, insofar as such losses, claims, damages,
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liabilities, expenses or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or Prospectus or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading if such statement or omission was made in
reliance upon and in conformity with information furnished in writing to FPL by
or on behalf of such Underwriter, through the Representatives or otherwise, for
use in connection with the preparation of the Registration Statement or the
Prospectus or any amendment or supplement to either thereof. Each Underwriter
hereby furnishes to FPL in writing expressly for use in the Prospectus, [insert
information provided by the Underwriters.] The indemnity agreement of the
respective Underwriters contained in this paragraph shall remain operative and
in full force and effect, regardless of any investigation made by or on behalf
of FPL or any of its officers or directors or any such other Underwriter or any
such controlling person, and shall survive the delivery of the Bonds. FPL agrees
promptly to notify the Representatives of the commencement of any litigation or
proceedings against FPL (or any controlling person thereof) or any of its
officers or directors in connection with the issuance and sale of the Bonds.
(c) FPL and the several Underwriters each agree that, upon the
receipt of notice of the commencement of any action against it, its officers and
directors, or any person controlling it as aforesaid, in respect of which
indemnity may be sought on account of any indemnity agreement contained herein,
it will promptly give written notice of the commencement thereof to the party or
parties against whom indemnity shall be sought thereunder, but the omission so
to notify such indemnifying party or parties of any such action shall not
relieve such indemnifying party or parties from any liability which it or they
may have to the indemnified party otherwise than on account of such indemnity
agreement. In case such notice of any such action shall be so given, such
indemnifying party shall be entitled to participate at its own expense in the
defense or, if it so elects, to assume (in conjunction with any other
indemnifying parties) the defense of such action, in which event such defense
shall be conducted by counsel chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall be the defendant or
defendants in such action, and such defendant or defendants shall bear the fees
and expenses of any additional counsel retained by them; but if the indemnifying
party shall elect not to assume the defense of such action, such indemnifying
party will reimburse such indemnified party or parties for the reasonable fees
and expenses of any counsel retained by them; provided, however, if the
defendants in any such action include both the indemnified party and the
indemnifying party and counsel for the indemnifying party shall have reasonably
concluded that there may be a conflict of interest involved in the
representation by such counsel of both the indemnifying party and the
indemnified party, the indemnified party or parties shall have the right to
select separate counsel, satisfactory to the indemnifying party, to participate
in the defense of such action on behalf of such indemnified party or parties (it
being understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel representing the indemnified
parties who are parties to such action).
SECTION 9. Termination. This agreement may be terminated by the
-----------
Representatives by delivering written notice thereof to FPL, at any time prior
to the Closing Date if (a) after the date hereof and at or prior to the Closing
Date there shall have occurred any general suspension of trading in securities
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on the New York Stock Exchange, Inc. or there shall have been established by the
New York Stock Exchange, Inc. or by the Commission or by any federal or state
agency or by the decision of any court any limitation on prices for such trading
or any restrictions on the distribution of securities, or a general banking
moratorium declared by New York or federal authorities, or (b) there shall have
occurred any new outbreak of hostilities including, but not limited to, an
escalation of hostilities which existed prior to the date of this agreement or
other national or international calamity or crisis, the effect of any such event
specified in (a) or (b) above on the financial markets of the United States
shall be such as to make it impracticable for the Underwriters to enforce
contracts for the sale of the Bonds. This agreement may also be terminated at
any time prior to the Closing Date if in the judgment of the Representatives the
subject matter of any amendment or supplement to the Registration Statement or
Prospectus prepared and furnished by FPL reflects a material adverse change in
the business, properties or financial condition of FPL which renders it either
inadvisable to proceed with such offering, if any, or inadvisable to proceed
with the delivery of the Bonds to be purchased hereunder. Any termination of
this agreement pursuant to this Section 9 shall be without liability of any
party to any other party except as otherwise provided in subsections (c) and (e)
of Section 5 hereof.
SECTION 10. Miscellaneous. The validity and interpretation of this
-------------
agreement shall be governed by the law of the State of New York. This agreement
shall inure to the benefit of FPL, the several Underwriters and, with respect to
the provisions of Section 8 hereof, each officer, director and controlling
person referred to in said Section 8, and their respective successors. Nothing
in this agreement is intended or shall be construed to give to any other person,
firm or corporation any legal or equitable right, remedy or claim under or in
respect of this agreement or any provision herein contained. The term
"successors" as used in this agreement shall not include any purchaser, as such
purchaser, of any Bonds from any of the several Underwriters.
SECTION 11. Notices. All communications hereunder shall be in writing or by
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telegram and, if to the Underwriters, shall be mailed or delivered to the
Representatives at the address set forth in Schedule I hereto, or if to FPL,
shall be mailed or delivered to it at 700 Universe Boulevard, Juno Beach,
Florida 33408, attention: Treasurer.
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If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter and your acceptance shall constitute a binding agreement between us.
Very truly yours,
Florida Power & Light Company
By:
------------------------------------
Name:
Title:
Accepted and delivered as of
the date first above written:
By:
------------------------------------
Name:
Title:
Acting on their own behalf and on behalf of the other several Underwriters
referred to in the foregoing agreement.
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SCHEDULE I
Underwriting Agreement dated ________ ___, 2001
Registration Statement No. 333-____
Representatives and Addresses:
Securities:
Designation:
Principal Amount:
Date of Maturity:
Interest Rate:
Purchase Price:
Public Offering Price:
Closing Date, Time and Location:
SCHEDULE II
Principal Amount of
Underwriter Bonds ____% Series due ____
- ----------- ---------------------------
TOTAL