EXHIBIT 1(a)
FLORIDA POWER & LIGHT COMPANY
FIRST MORTGAGE BONDS
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UNDERWRITING AGREEMENT
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[Date]
To the Representatives named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
1. Introductory. Florida Power & Light Company, a Florida
corporation ("FPL"), proposes to issue and sell its First Mortgage Bonds of the
series designation[s], with the terms and in the principal amount[s] specified
in Schedule I hereto (the "Bonds"). FPL hereby confirms its agreement with the
several Underwriters (as defined below) as set forth herein.
The term "Underwriters" as used herein shall be deemed to mean the
entity or several entities named in Schedule II hereto and any underwriter
substituted as provided in Section 5 hereof and the term "Underwriter" shall be
deemed to mean one of such Underwriters. If the entity or entities listed in
Schedule I hereto (the "Representatives") are the same as the entity or entities
listed in Schedule II hereto, then the terms "Underwriters" and
"Representatives," as used herein, shall each be deemed to refer to such entity
or entities. 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 entity is named in
Schedule I hereto, any action under or in respect of this agreement may be taken
by such entities jointly as the Representatives or by one of the entities acting
on behalf of the Representatives and such action will be binding upon all the
Underwriters.
2. Description of the Bonds. The Bonds [of each series] 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 Deutsche Bank Trust
Company Americas (formerly known as 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."
3. Representations and Warranties of FPL. FPL represents and
warrants to the several Underwriters that:
(a) 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 under the Securities Act of 1933, as amended (the
"Securities Act"), of $__________ aggregate principal amount of its
First Mortgage Bonds. Such registration statement has been declared
effective by the Commission and no stop order suspending such
effectiveness has been issued under the Securities Act and no
proceedings for that purpose have been instituted or are pending or,
to the knowledge of FPL, threatened 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"); provided that if FPL files a registration statement
pursuant to Rule 462(b) under the Securities Act (the "Rule 462(b)
Registration Statement"), then after such filing, all references to
"Registration Statement" shall be deemed to include the Rule 462(b)
Registration Statement. 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 of 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
Hunton & Williams, 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.
(b) 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, 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"), respectively, and, in each
case, the applicable instructions, rules and regulations of the
Commission thereunder; the Registration Statement at the Effective
Date, did not, and at the Closing Date, will not, contain any 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 any 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
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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 (b) 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 through
the Representatives expressly for use in connection with the
preparation of the Registration Statement or the Prospectus, or to any
statements in or omissions from the Statement of Eligibility on Form
T-1, or amendments thereto, of the Mortgage Trustee or to any
statements or omissions made in the Registration Statement or
Prospectus relating to The Depository Trust Company ("DTC") Book-Entry
Only System that are based solely on information contained in
published reports of DTC.
(c) The financial statements included as part of or
incorporated by reference in the Registration Statement present fairly
the financial condition and results of 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 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.
(d) 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,
whether or not in the ordinary course of business, nor has any
transaction been entered into by FPL that is material to 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 or contemplated by the Registration Statement and
Prospectus.
(e) The execution and delivery of this agreement, 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 valid and binding obligations of FPL enforceable 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.
(f) The execution and delivery of this agreement, the
consummation of the transactions herein contemplated, 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
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terms or provisions of, or constitute a default under, FPL's Charter
or 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.
(g) All the property to be subjected to the lien of the
Mortgage will be adequately described therein.
(h) FPL is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
4. Purchase and Sale. On the basis of the representations and
warranties herein contained, and subject to the terms and conditions in this
agreement, FPL agrees to sell to the respective Underwriters named in Schedule
II hereto, severally and not jointly, and the respective Underwriters agree,
severally and not jointly, to purchase from FPL, the respective principal
amounts of the Bonds set forth opposite their respective names in Schedule II
hereto at the purchase prices for those Bonds set forth in Schedule I hereto.
The Underwriters agree to make a bona fide 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. The Underwriters have advised FPL that
the Bonds will be offered to the public at the amount per Bond as set forth in
Schedule I hereto and to certain dealers selected by the Representatives at a
price which represents a concession not in excess of the amount per Bond under
the public offering price as set forth in Schedule I hereto.
5. Time, Date and Place of Closing, Default of Underwriter. Delivery
of the Bonds [of each series] 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 may be agreed upon in writing by FPL and
the Representatives. The time 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 therefor. Delivery of the Bonds shall
be made through the facilities of DTC unless FPL and the Representatives 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 offices of Thelen Reid
& Priest LLP, 875 Third Avenue, New York, New York 10022, not later than 2:00
P.M., New York City time, on the business day preceding the Closing Date, or at
such other time, date or 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 [of any series] which such Underwriter has agreed to
purchase and pay for hereunder (otherwise than by reason of any failure on the
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part of FPL to comply with any of the provisions contained herein), the
non-defaulting Underwriters shall be obligated to purchase 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
[of each series] which such defaulting Underwriter or Underwriters failed to
purchase and pay for, up to a principal amount thereof equal to, in the case of
each such remaining Underwriter, ten percent (10%) of the aggregate principal
amount of the Bonds [of each series] as to which there is a default and which
are set forth opposite the name of such remaining Underwriter in said Schedule
II, and such remaining Underwriters shall have the right, within 24 hours of
receipt of such notice, either to (i) purchase and pay for (in such proportion
as may be agreed upon among them) the remaining principal amount of the Bonds
[of each series] which the defaulting Underwriter or Underwriters agreed but
failed to purchase, or (ii) substitute another Underwriter or Underwriters,
satisfactory to FPL, to purchase and pay for the remaining principal amount of
the Bonds [of each series] which the defaulting Underwriter or Underwriters
agreed but failed to purchase. If any of the Bonds would still remain
unpurchased, 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 herein set forth. In the
event that, within the respective prescribed periods, (i) the non-defaulting
Underwriters notify FPL that they have arranged for the purchase of such Bonds
or (ii) 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, 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 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 4 hereof), except as otherwise provided in Section 9 and
subsections (c) and (e) of Section 6 hereof.
6. Covenants of FPL. FPL agrees with the several Underwriters that:
(a) FPL will promptly file the Prospectus with the
Commission pursuant to Rule 424 under the Securities Act.
(b) FPL 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
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. As soon
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as practicable after the date of this agreement, FPL will deliver to
the Underwriters through the Representatives as many copies of the
Prospectus as the Representatives may reasonably request for the
purposes contemplated by the Securities Act.
(c) FPL will pay or cause to be paid all expenses in
connection with the (i) preparation and filing of the Registration
Statement and Prospectus, (ii) issuance and delivery of the Bonds as
provided in Section 5 hereof, (iii) preparation, execution, filing and
recording of the Supplemental Indenture and (iv) printing and delivery
to the Representatives for the account of the Underwriters, in
reasonable quantities, of copies of the Registration Statement, the
Prospectus and the Supplemental Indenture. FPL will pay or cause to be
paid all taxes, if any (but not including any transfer taxes), on the
issuance of the Bonds and 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 7 and 8 hereof and except that if this agreement shall be
terminated in accordance with the provisions of Sections 7, 8 or 10
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 shall occur
which, in the opinion of FPL, should be set forth in a supplement to
or an amendment of the Prospectus in order to make the Prospectus not
misleading in the 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 a material fact necessary in order to make the statements
contained therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading; provided that
should 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) FPL 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 or cause to be paid filing
fees and expenses (including fees and expenses of counsel) in the
aggregate not exceeding $5,000, 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
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jurisdiction, or to meet other requirements deemed by FPL to be unduly
burdensome.
(f) FPL will timely file such reports pursuant to the
Exchange Act as are necessary in order to make generally available to
its security holders (including holders of the Bonds) 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) for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the Securities Act.
(g) FPL will advise the Representatives promptly of the
filing of the Prospectus pursuant to Rule 424 and of any amendment or
supplement to the Prospectus or Registration Statement or, prior to
the termination of the offering of the Bonds hereunder, of official
notice of the institution of proceedings for, or the entry of, a stop
order suspending the effectiveness of the Registration Statement and,
if such a stop order should be entered, use every commercially
reasonable effort to obtain the prompt removal thereof.
(h) On or before the Closing Date, FPL 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.
7. Conditions of Underwriters' Obligations to Purchase and Pay for
the Bonds. The several obligations of the Underwriters to purchase and pay for
the Bonds shall be subject 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) The representations and warranties made by FPL herein
shall be true and correct in all material respects as of the Closing
Date as if made on and as of such date and the Representatives shall
have received, prior to payment for the Bonds, a certificate from FPL
dated the Closing Date and signed by an officer of FPL to that effect.
(b) 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 be in effect on the Closing Date; 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 from FPL dated the
Closing Date and signed by an officer of FPL to the effect that, to
the best of his or her knowledge, no such order is in effect and no
proceedings for either such purpose are pending before, or to the
knowledge of FPL threatened by, the Commission.
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(c) 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 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.
(d) On the Closing Date, the Representatives shall have
received from Steel Hector & Davis LLP, counsel to FPL, Thelen Reid &
Priest LLP, co-counsel to FPL, and Hunton & Williams, Counsel for the
Underwriters, opinions (with a copy for each of the Underwriters) in
substantially the form and substance prescribed in Schedules III, IV
and V hereto (i) with such changes therein as may be agreed upon by
FPL and the Representatives, with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus relating to the Bonds shall
be supplemented or amended after the Prospectus shall have been filed
with the Commission pursuant to Rule 424, with any changes therein
necessary to reflect such supplementation or amendment.
(e) 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 performing a review of interim financial information
as described in Statement on Auditing Standards No. 71, Interim
Financial Information, on the unaudited condensed consolidated
financial statements of FPL incorporated by reference in the
Prospectus, a reading of the latest available interim unaudited
condensed 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 sole
common 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 makes 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
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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 condensed 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 condensed 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.
(f) Since the respective most recent dates as of which
information is given in the Registration Statement and Prospectus, and
up to the Closing Date, (i) there shall have been no material adverse
change in the business, properties or financial condition of FPL,
except as disclosed in or contemplated by the Registration Statement
and Prospectus, and (ii) there shall have been no material transaction
entered into by FPL other than transactions disclosed in or
contemplated 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 from FPL signed by an officer of FPL.
(g) 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 7 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 6 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.
8. Condition 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 shall be in effect on the Closing Date; no
order of the Commission directed to the adequacy of any Incorporated
Document shall be in effect on the Closing Date, and no proceedings
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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 the conditions specified above in this Section 8 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 6 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.
9. Indemnification.
(a) FPL agrees to indemnify and hold harmless each
Underwriter, each officer and director of each Underwriter and each
person who controls any Underwriter within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange 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 any other statute or common law and to reimburse each such
Underwriter, officer, director and controlling person for any legal or
other expenses (including, to the extent hereinafter provided,
reasonable counsel fees) when and as 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 of the Registration Statement)], 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 subsection (a) of Section 9
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 in writing, to FPL by or on
behalf of any Underwriter, through the Representatives, expressly 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
Statement of Eligibility on Form T-1 of the Mortgage Trustee; and
provided, further, that the indemnity agreement contained in this
subsection (a) of Section 9 in respect of any preliminary prospectus
(and for purposes of clause (ii) below, the Prospectus) shall not
inure to the benefit of any Underwriter (or of any person controlling
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such Underwriter) on account of any such losses, claims, damages,
liabilities, expenses or actions arising from the sale of the Bonds
[of any series] 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 the alleged omission or alleged untrue statement
with respect to such preliminary prospectus is not corrected in the
Prospectus or the Prospectus as amended or supplemented 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,
but exclusive of any Incorporated Documents, unless the alleged
omission or alleged untrue statement with respect to such preliminary
prospectus or the Prospectus was not corrected in the Prospectus or in
such amendment or supplement at the time of such delivery of such
Bonds. The indemnity agreement of FPL contained in this subsection (a)
of Section 9 and the representations and warranties of FPL contained
in Section 3 hereof shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any
Underwriter, officer, director or any such controlling person, and
shall survive the delivery of the Bonds [of each series]. 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 officer, director or controlling person in
connection with the issuance and sale of the Bonds [of any series].
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless FPL, its officers and directors, and each
person who controls FPL within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange 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 any
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) when and as 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 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 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, expressly for use in connection with the
preparation of the Registration Statement or the Prospectus or any
amendment or supplement to either thereof. The Underwriters hereby
furnish to FPL in writing expressly for use in the Registration
Statement and Prospectus [insert information provided by the
Underwriters]. FPL acknowledges that the statements set forth in the
preceding sentence constitute the only information furnished in
writing by or on behalf of the several Underwriters expressly for
inclusion in any preliminary prospectus or the Prospectus. The
indemnity agreement of the respective Underwriters contained in this
subsection (b) of Section 9 shall remain operative and in full force
11
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 [of each series]. 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 [of
any series].
(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 or contribution may be sought under the
provisions of this Section 9, it will promptly give written notice of
the commencement thereof to the party or parties against whom
indemnity or contribution 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 or parties
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 reasonably satisfactory to the indemnified party or parties 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 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 or parties, to participate in the defense of
such action on behalf of such indemnified party or parties at the
expense of the indemnifying party or parties (it being understood,
however, that the indemnifying party or parties shall not be liable
for the expenses of more than one separate counsel representing the
indemnified parties who are parties to such action). FPL and the
several Underwriters each agree that without the prior written consent
of the other parties to such action who are parties to this agreement,
which consent shall not be unreasonably withheld, it will not settle,
compromise or consent to the entry of any judgment in any claim or
proceeding in respect of which such party intends to seek indemnity or
contribution under the provisions of this Section 9, unless such
settlement, compromise or consent (i) includes an unconditional
release of such other parties from all liability arising out of such
claim or proceeding and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of
such other parties.
(d) If, or to the extent, the indemnification provided for
in subsections (a) or (b) above shall be unenforceable under
applicable law by an indemnified party, each indemnifying party agrees
to contribute to such indemnified party with respect to any and all
12
losses, claims, damages, liabilities and expenses for which each such
indemnification provided for in subsections (a) or (b) above shall be
unenforceable, in such proportion as shall be appropriate to reflect
(i) the relative fault of FPL on the one hand and the Underwriters on
the other in connection with the statements or omissions which have
resulted in such losses, claims, damages, liabilities and expenses,
(ii) the relative benefits received by FPL on the one hand and the
Underwriters on the other hand from the offering of the Bonds pursuant
to this agreement, and (iii) any other relevant equitable
considerations; provided, however, that no indemnified party guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution with respect
thereto from any indemnifying party not guilty of such fraudulent
misrepresentation. Relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a
material fact relates to information supplied by FPL or the
Underwriters and each such party's relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue
statement or omission. FPL and each of the Underwriters agree that it
would not be just and equitable if contribution pursuant to this
subsection (d) were to be determined by pro rata allocation or by any
other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute in excess of the amount equal to the excess of (i) the
total price at which the Bonds underwritten by it were offered to the
public, over (ii) the amount of any damages which such Underwriter has
otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission. The obligations of
each Underwriter to contribute pursuant to this subsection (d) are
several and not joint and shall be in the same proportion as such
Underwriter's obligation to underwrite the Bonds [of the series] with
respect to which contribution is sought is to the total principal
amount of the Bonds [of such series] set forth in Schedule II hereto.
10. 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 after the date hereof and at or prior to the Closing
Date:
(a) (i) there shall have occurred any general suspension of
trading in securities on The New York Stock Exchange, Inc. (the
"NYSE") or there shall have been established by the NYSE 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 general
restrictions on the distribution of securities, or trading in any
securities of FPL shall have been suspended or limited by any exchange
located in the United States or on the over-the-counter market located
in the United States or a general banking moratorium declared by New
York or federal authorities or (ii) there shall have occurred any new
material 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 (i) or (ii) 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 [of any series]; or
13
(b) (i) there shall have been any downgrading or any notice of
any intended or potential downgrading in the ratings accorded to the
Bonds [of any series] or any securities of FPL which are of the same
class as the Bonds by either [Moody's Investor Service, Inc.
("Moody's")] or [Standard & Poor's Ratings Services, a division of
McGraw-Hill Companies, Inc. ("S&P")], or (ii) either [Moody's] or
[S&P] shall have publicly announced that either has under surveillance
or review, with possible negative implications, its ratings of the
Bonds [of any series] or any securities of FPL which are of the same
class as the Bonds, the effect of any such event specified in (i) or
(ii) above which, in the reasonable judgment of the Representatives,
makes it impracticable or inadvisable to consummate the sale of the
Bonds and the delivery of the Bonds by the several Underwriters at the
initial public offering price.
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 the Prospectus prepared and
furnished by FPL after the date hereof 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 [of any series] to be purchased hereunder. Any
termination of this agreement pursuant to this Section 10 shall be without
liability of any party to any other party except as otherwise provided in
subsections (c) and (e) of Section 6 hereof.
11. Miscellaneous. The validity and interpretation of this agreement
shall be governed by the laws 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 9 hereof, each officer, director or controlling person
referred to in said Section 9, and their respective successors. Nothing in this
agreement is intended or shall be construed to give to any other person or
entity 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.
12. Notices. All communications hereunder shall be in writing or by
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.
14
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.
15
SCHEDULE I
Underwriting Agreement dated _________, 200_
Registration Statement No. 333-______
Representatives and Addresses:
Bonds:
Designation:
Principal Amount:
Date of Maturity:
Interest Rate:
Purchase Price:
Underwriting Discount:
Price to the Public:
Dealers' Concession:
Closing Date, Time
and Location:
SCHEDULE II
PRINCIPAL AMOUNT [PRINCIPAL AMOUNT
UNDERWRITER OF ____% BONDS OF ____% BONDS]
- ----------- ---------------- -----------------
Total..............................
SCHEDULE III
[LETTERHEAD OF STEEL HECTOR & DAVIS LLP]
[Date]
as Representatives of the Underwriters
named in Schedule II to the Agreement,
as herein described
Ladies and Gentlemen:
We have acted as counsel for Florida Power & Light Company ("FPL") (a)
in connection with the authorization and issuance by FPL of $_________ principal
amount of First Mortgage Bonds, ____% Series due __________, 20__ [and
$__________ principal amount of First Mortgage Bonds, ____% Series due
__________, 20__] ([collectively,] the "Bonds"), issued under the Mortgage and
Deed of Trust dated as of January 1, 1944, as the same is supplemented by one
hundred and [three] indentures supplemental thereto, the latest of which (the
"One Hundred [Third] Supplemental Indenture") is dated as of __________, 200_
(such Mortgage as so supplemented being hereinafter called the "Mortgage") from
FPL to Deutsche Bank Trust Company Americas (formerly known as Bankers Trust
Company), as Trustee ("Mortgage Trustee"), and (b) in connection with the sale
of the Bonds to you in accordance with the underwriting agreement dated
_________, 200_, between you and FPL (the "Agreement"). Capitalized terms used
in this opinion but not defined shall have the meanings set forth in the
Agreement.
We have participated in the preparation of or reviewed (1)
Registration Statement No. 333-______ which became effective on _________, 200_,
which registration statement was filed by FPL with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), (references herein to the term "Registration Statement" as of
any given date shall mean Registration Statement No. 333-______, as amended and
supplemented to such date, including those documents incorporated by reference
therein as of such date pursuant to Item 12 of Form S-3 under the Securities Act
(the "Incorporated Documents")); (2) the prospectus dated _________, 200_
forming a part of the Registration Statement, as supplemented by a prospectus
supplement dated __________, 200_ relating to the Bonds, both such prospectus
and prospectus supplement filed pursuant to Rule 424(b) under the Securities Act
("Rule 424" and references herein to the "Prospectus" as of any given date shall
refer to such prospectus, as supplemented by the prospectus supplement relating
to the Bonds filed pursuant to Rule 424, and as further amended and supplemented
to such date, including the Incorporated Documents); (3) the Mortgage; (4) the
corporate proceedings with respect to the Registration Statement and with
respect to the authorization, issuance and sale of the Bonds; (5) FPL's Restated
Articles of Incorporation, as amended to the date hereof (the "Charter"), and
Bylaws, as amended to the date hereof (the "Bylaws"); and (6) such other
corporate records, certificates and other documents and such questions of law as
we have considered necessary or appropriate for the purposes of this opinion. We
have also participated in the preparation of FPL's Application to the Florida
Public Service Commission ("FPSC") for the authorization of, among other things,
the issuance and sale of debt securities in 200_, including the Bonds.
Upon the basis of the foregoing, we advise you that:
I.
FPL is a validly organized and existing corporation and is in good
standing under the laws of the State of Florida 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 FPSC; 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 authorized by FPL by all necessary
corporate action, has been duly and validly executed and delivered by FPL, and
is a valid and binding obligation of FPL 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 [of each series] are valid and binding obligations of FPL
enforceable in accordance with their respective 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.
Except as to the financial statements and other financial or
statistical data contained or incorporated by reference therein, as to which we
express no opinion, and except for those parts of the Registration Statement
that constitute the Statement of Eligibility on Form T-1, as to which we express
no opinion, the Registration Statement, at the Effective Date, and the
Prospectus, at the 424 Date, 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. The
Incorporated Documents (except as to the financial statements and other
III-2
financial or statistical data contained or incorporated by reference therein, as
to which we express no opinion), at the time they were filed with the
Commission, complied as to form in all material respects with the applicable
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the applicable instructions, rules and regulations of the Commission
thereunder. The Registration Statement became, and is, at the date hereof,
effective under the Securities Act, and to the best of our knowledge, no
proceedings for a stop order with respect thereto are pending or threatened
under Section 8 of the Securities Act.
VI.
The consummation of the transactions contemplated in the Agreement and
the fulfillment of the terms contained in the Agreement 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 the Bylaws or any indenture, mortgage, deed of trust or other
agreement or instrument the terms of which are known to us 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.
The Bonds are being issued and sold pursuant to the authority
contained in an order of the FPSC, which authority is adequate to permit the
issuance and sale of the Bonds. 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 (other than in connection or in
compliance with the provisions of the blue sky laws of any jurisdiction as to
which we express no opinion, and other than those which have been already
obtained) is legally required for the authorization of the issuance and sale of
the Bonds.
VIII.
The statements made in the Prospectus under the headings ["Description
of the Bonds" and "Certain Terms of the Offered Bonds,"] [and _________] 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.
The Mortgage is duly qualified under the Trust Indenture Act of 1939,
as amended.
X.
The Agreement has been duly and validly authorized, executed and
delivered by FPL.
XI.
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
III-3
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
character and which, in our opinion, 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 [One Hundred Third] Supplemental Indenture is in proper form for recording
in all places required; and upon such recording, the [One Hundred Third]
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 [One Hundred Second] Supplemental Indenture
to the Mortgage and prior to the recording of the [One Hundred Third]
Supplemental Indenture.
XII.
Except as stated or referred to in the Prospectus, there is no
material pending legal proceeding to which FPL is a party or of which property
of FPL is the subject which is reasonably likely to be determined adversely and,
if determined adversely, might reasonably be expected to have a material adverse
effect on FPL and, to the best of our knowledge, no such proceeding is known to
be contemplated by governmental authorities.
In rendering the foregoing opinion, we have assumed that the
certificates representing the Bonds will conform to specimens examined by us and
that the Bonds will be duly authenticated by the Mortgage Trustee under the
Mortgage and will be delivered against payment of the purchase price as provided
in the Agreement and that the signatures on all documents examined by us are
genuine, assumptions which we have not independently verified.
Other than with respect to the opinion expressed in Paragraph VIII
hereof, we have not ourselves checked the accuracy or completeness of, or
otherwise verified, the information furnished with respect to matters in the
Registration Statement or the Prospectus. We have generally reviewed and
discussed such information with certain officers and employees of FPL, certain
of its other legal counsel, its independent public accountants and your
representatives. Additionally, as counsel to FPL, 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 (except as to
the financial statements and other financial or statistical data contained or
incorporated by reference therein, as to which we express no belief, and except
for those parts of the Registration Statement that constitute the Statement of
Eligibility on Form T-1, as to which we express no belief), that the
Registration Statement, 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 in order to make the statements contained therein not
misleading or (except as aforesaid) that the Prospectus at the 424 Date
included, or at the date hereof includes, any untrue statement of a material
III-4
fact or the Prospectus at the 424 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.
We are members of the Florida Bar and do not hold ourselves out as
experts on the laws of New York or Georgia, and accordingly, this opinion is
limited to the laws of Florida and the federal laws of the United States insofar
as they bear on matters covered hereby. As to all matters of New York law, we
have relied, with your consent, upon an opinion of even date herewith addressed
to you by Thelen Reid & Priest LLP, New York, New York. As to all matters of law
affecting Mortgaged and Pledged Property located in the State of Georgia, we
have relied, with your consent, upon an opinion of even date herewith addressed
to you and us by McDaniel & Haugaard, P.C., Decatur, Georgia. As to all matters
of Florida law, Thelen Reid & Priest LLP and Hunton & Williams are hereby
authorized to rely upon this opinion as though it were rendered to each of them.
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. This opinion is expressed as of the date hereof, and
we do not assume any obligation to update or supplement it to reflect any fact
or circumstance that hereafter comes to our attention, or any change in law that
hereafter occurs.
Very truly yours,
STEEL HECTOR & DAVIS LLP
SCHEDULE IV
[LETTERHEAD OF THELEN REID & PRIEST LLP]
[Date]
as Representatives of the Underwriters
named in Schedule II to the Agreement,
as herein described
Ladies and Gentlemen:
We have acted as special counsel for Florida Power & Light Company
("FPL") (a) in connection with the authorization and issuance by FPL of
$__________ principal amount of First Mortgage Bonds, ____% Series due
__________, 20__ [and $__________ principal amount of First Mortgage Bonds,
____% Series due __________, 20__] ([collectively,] the "Bonds"), issued under
the Mortgage and Deed of Trust dated as of January 1, 1944, as the same is
supplemented by one hundred and [three] indentures supplemental thereto, the
latest of which (the "One Hundred [Third] Supplemental Indenture") is dated as
of _________, 200_ (such Mortgage as so supplemented being hereinafter called
the "Mortgage") from FPL to Deutsche Bank Trust Company Americas (formerly known
as Bankers Trust Company), as Trustee ("Mortgage Trustee"), and (b) in
connection with the sale of the Bonds to you in accordance with the underwriting
agreement dated _________, 200_, between you and FPL (the "Agreement").
Capitalized terms used in this opinion but not defined shall have the meanings
set forth in the Agreement.
We have participated in the preparation of or reviewed (1)
Registration Statement No. 333-______ which became effective on _________, 200_,
which registration statement was filed by FPL with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), (references herein to the term "Registration Statement" as of
any given date shall mean Registration Statement No. 333-______, as amended and
supplemented to such date, including those documents incorporated by reference
therein as of such date pursuant to Item 12 of Form S-3 under the Securities Act
(the "Incorporated Documents")); (2) the prospectus dated _________, 200_
forming a part of the Registration Statement, as supplemented by a prospectus
supplement dated __________, 200_ relating to the Bonds, both such prospectus
and prospectus supplement filed pursuant to Rule 424(b) under the Securities Act
("Rule 424" and references herein to the "Prospectus" as of any given date shall
refer to such prospectus, as supplemented by the prospectus supplement relating
to the Bonds filed pursuant to Rule 424, and as further amended and supplemented
to such date, including the Incorporated Documents); (3) the Mortgage; (4) the
corporate proceedings with respect to the Registration Statement and with
respect to the authorization, issuance and sale of the Bonds; (5) FPL's Restated
Articles of Incorporation, as amended to the date hereof (the "Charter"), and
Bylaws, as amended to the date hereof (the "Bylaws"); and (6) such other
corporate records, certificates and other documents and such questions of law as
we have considered necessary or appropriate for the purposes of this opinion. We
have also participated in the preparation of FPL's Application to the Florida
Public Service Commission ("FPSC") for the authorization of, among other things,
the issuance and sale of debt securities in 200_, including the Bonds.
Upon the basis of the foregoing, we advise you that:
I.
The Mortgage has been duly authorized by FPL by all necessary
corporate action, has been duly and validly executed and delivered by FPL, and
is a valid and binding obligation of FPL 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.
II.
The Bonds [of each series] are valid and binding obligations of FPL
enforceable in accordance with their respective 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.
III.
Except as to the financial statements and other financial or
statistical data contained or incorporated by reference therein, as to which we
express no opinion, and except for those parts of the Registration Statement
that constitute the Statement of Eligibility on Form T-1, as to which we express
no opinion, the Registration Statement, at the Effective Date, and the
Prospectus, at the 424 Date, 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. The
Incorporated Documents (except as to the financial statements and other
financial or statistical data contained or incorporated by reference therein, as
to which we express no opinion), at the time they were filed with the
Commission, complied as to form in all material respects with the applicable
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the applicable instructions, rules and regulations of the Commission
thereunder. The Registration Statement became, and is, at the date hereof,
effective under the Securities Act, and to the best of our knowledge, no
proceedings for a stop order with respect thereto are pending or threatened
under Section 8 of the Securities Act.
IV.
The consummation of the transactions contemplated in the Agreement and
the fulfillment of the terms contained in the Agreement 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 the Bylaws or any indenture, mortgage, deed of trust or other
agreement or instrument the terms of which are known to us to which FPL is now a
IV-2
party, except where such breach or default would not have a material adverse
effect on the business, properties or financial condition of FPL.
V.
The Bonds are being issued and sold pursuant to the authority
contained in an order of the FPSC, which authority is adequate to permit the
issuance and sale of the Bonds. 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 (other than in connection or in
compliance with the provisions of the blue sky laws of any jurisdiction as to
which we express no opinion, and other than those which have been already
obtained) is legally required for the authorization of the issuance and sale of
the Bonds.
VI.
The statements made in the Prospectus under the headings ["Description
of the Bonds" and "Certain Terms of the Offered Bonds,"] [and _________] 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.
VII.
The Mortgage is duly qualified under the Trust Indenture Act of 1939,
as amended.
VIII.
The Agreement has been duly and validly authorized, executed and
delivered by FPL.
In rendering the foregoing opinion, we have assumed that the
certificates representing the Bonds will conform to specimens examined by us and
that the Bonds will be duly authenticated by the Mortgage Trustee under the
Mortgage and will be delivered against payment of the purchase price as provided
in the Agreement and that the signatures on all documents examined by us are
genuine, assumptions which we have not independently verified.
Other than with respect to the opinion expressed in Paragraph VI
hereof, we have not ourselves checked the accuracy or completeness of, or
otherwise verified, the information furnished with respect to matters in the
Registration Statement or the Prospectus. We have generally reviewed and
discussed such information with certain officers and employees of FPL, certain
of its other legal counsel, its independent public accountants and your
representatives. 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 (except as to the financial
statements and other financial or statistical data contained or incorporated by
reference therein, as to which we express no belief, and except for those parts
of the Registration Statement that constitute the Statement of Eligibility on
Form T-1, as to which we express no belief), that the Registration Statement, 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 in order to
make the statements contained therein not misleading or (except as aforesaid)
that the Prospectus at the 424 Date included, or at the date hereof includes,
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any untrue statement of a material fact or the Prospectus at the 424 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.
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 governed by Florida
law, including without limitation the incorporation of FPL, titles to property,
franchises or the lien of the Mortgage. As to all matters of Florida law, we
have relied, with your consent, upon an opinion of even date herewith addressed
to you by Steel Hector & Davis LLP, Miami, Florida. As to all matters of New
York law, Steel Hector & Davis LLP is hereby authorized to rely upon this
opinion as though it were rendered to Steel Hector & Davis LLP.
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. This opinion is expressed as of the date hereof, and
we do not assume any obligation to update or supplement it to reflect any fact
or circumstance that hereafter comes to our attention, or any change in law that
hereafter occurs.
Very truly yours,
THELEN REID & PRIEST LLP
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SCHEDULE V
[LETTERHEAD OF HUNTON & WILLIAMS]
[Date]
as Representatives of the Underwriters
named in Schedule II to the Agreement,
as herein described
Ladies and Gentlemen:
We have acted as your counsel in connection with your several
purchases from Florida Power & Light Company ("FPL") of $__________ principal
amount of First Mortgage Bonds, ____% Series due __________, 20__ [and
$__________ principal amount of First Mortgage Bonds, ____% Series due
__________, 20__] ([collectively,] the "Bonds"), issued under FPL's Mortgage and
Deed of Trust dated as of January 1, 1944, with Deutsche Bank Trust Company
Americas (formerly known as Bankers Trust Company), as Trustee, which has been
amended and supplemented in the past and which will be supplemented again by one
or more supplemental indentures relating to these Bonds (as so amended and
supplemented, the "Mortgage"), pursuant to the Underwriting Agreement, dated
__________, 200_, between you and FPL (the "Agreement"). Capitalized terms used
and not otherwise defined herein have the meaning ascribed to them in the
Agreement.
In connection with the foregoing we have examined the following:
a) FPL's registration statement on Form S-3 (Registration
Statement No. 333-______ relating to $1,000,000,000 aggregate
principal amount of First Mortgage Bonds filed with the
Commission on __________, 200_ (the "Registration Statement");
b) the prospectus dated __________, 200_ (the "Prospectus") and
the prospectus supplement dated __________, 200_ (the
"Prospectus Supplement"), filed pursuant to Rule 424(b)(__)
under the Securities Act of 1933, as amended (the "Securities
Act");
c) the Restated Articles of Incorporation of FPL, as amended to
date, and the Bylaws of FPL, as amended to date;
d) the unanimous consent[s] of the Board of Directors of FPL
dated __________ and the unanimous consent[s] of the Finance
Committee of the Board of Directors of FPL, dated __________,
with respect to the offering of the Bonds, as certified by the
Secretary of FPL on the date hereof;
e) the Agreement; and
f) the Mortgage.
We have also examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents, agreements,
certificates, corporate records, certificates of public officials and other
instruments as we have deemed necessary or appropriate for the purposes of this
opinion.
For purposes of the opinions expressed below, we have assumed without
verification (i) the authenticity of all documents submitted to us as originals;
(ii) the conformity to the originals of all documents submitted as certified or
photostatic copies and the authenticity of the originals of such documents;
(iii) the genuineness of signatures not witnessed by us; and (iv) the legal
capacity of natural persons.
In rendering the following opinion, we have assumed that the
certificates representing the Bonds will conform to specimens examined by us and
that the Bonds will be duly authenticated by the Mortgage Trustee under the
Mortgage and will be delivered against payment of the purchase price as provided
in the Agreement.
As to factual matters, we have relied upon representations and
warranties included in the Agreement and upon certificates of officers of FPL
being delivered to you today pursuant to Section 7(a) of the Agreement, and upon
certificates of public officials, without independent investigation. Whenever
the phrase "to the best of our knowledge" or "has come to our attention" is used
herein, it refers to the actual knowledge of the attorneys involved in this
transaction, without independent investigation.
We do not purport to express an opinion on any laws other than the
laws of the State of New York, the United States of America and, to the extent
set forth herein, the laws of the State of Florida. As to all matters of Florida
law, we have, with your consent, relied upon the opinion of even date herewith
addressed to you by Steel Hector & Davis LLP, counsel for FPL. We express no
opinion or belief as to the incorporation of FPL, titles to property, franchises
or the lien of the Mortgage.
Based upon the foregoing and such other information and documents as
we have considered necessary for the purposes hereof, we are of the opinion
that:
I.
1. The Mortgage has been duly authorized by FPL by all necessary
corporate action, has been duly and validly executed and delivered by FPL, and
is a valid and binding obligation of FPL enforceable against FPL 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.
2. The Bonds [of each series] are valid and binding obligations of
FPL enforceable against FPL in accordance with their [respective] terms, except
as limited or affected by bankruptcy, insolvency, reorganization, receivership,
moratorium or other laws affecting mortgagees' and other creditors' rights and
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remedies generally and general principles of equity, and are entitled to the
benefit of the security afforded by the Mortgage.
3. The statements made in the Prospectus under the headings
["Description of the Bonds" and "Certain Terms of the Offered Bonds,"] [and
__________] insofar as such statements 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 Registration Statement has become, and is, at the date
hereof, effective under the Securities Act, and to the best of our knowledge, no
proceedings for a stop order with respect thereto are pending or threatened
under Section 8 of the Securities Act.
5 . The Mortgage is duly qualified under the Trust Indenture Act of
1939, as amended.
6. The Agreement has been duly and validly authorized, executed and
delivered by FPL.
II.
Other than with respect to the opinion expressed in paragraph 3 of
Part I hereof, we have not ourselves checked the accuracy or completeness of, or
otherwise verified, the information furnished with respect to matters in the
Registration Statement, the Prospectus or the Prospectus Supplement. We have,
however, participated in the preparation of the Registration Statement, the
Prospectus and the Prospectus Supplement. In this context, we have participated
in various conferences with the officers and employees of FPL, certain of its
legal counsel and its independent certified public accountants and your
representatives. At those conferences, the contents of the Prospectus Supplement
were discussed and revised. Since the dates of those conferences, we have
inquired of certain officers whether there has been any material change in the
affairs of FPL.
Except as to the financial statements and other financial or
statistical data contained or incorporated by reference therein, as to which we
express no opinion, and except for those parts of the Registration Statement
that constitute the Statement of Eligibility on Form T-1, as to which we express
no opinion, Registration Statement No. 333-_______, at the Effective Date, and
the Prospectus and the Prospectus Supplement, each at the 424 Date, 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. The Incorporated Documents (except as to the financial
statements and other financial or statistical data contained or incorporated by
reference therein, as to which we express no opinion), at the time they were
filed with the Commission, 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 Commission thereunder.
Because of the inherent limitations in the independent verification of
factual matters, and the character of determinations involved in the preparation
of registration statement[s] under the Securities Act, we are not passing upon,
and do not assume any responsibility for, and make no representation that we
have independently verified, the accuracy, completeness or fairness of the
V-3
statements contained in the Registration Statement, the Prospectus or the
Prospectus Supplement, except as specifically set forth in paragraph 3 of Part I
of our opinion above. Also, we do not express any opinion or belief as to the
financial statements or other financial or statistical information contained in
the Registration Statement, the Prospectus and the Prospectus Supplement.
However, subject to the foregoing, on the basis of our participation in the
conferences referred to above and our examination of the documents referred to
herein, we advise you that nothing has come to our attention that would lead us
to believe (except as to the financial statements and other financial or
statistical data contained or incorporated by reference therein, as to which we
express no belief, and except for those parts of the Registration Statement that
constitute the Statement of Eligibility on Form T-1, as to which we express no
belief), that the Registration Statement, 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 in order to make the statements contained
therein not misleading or (except as aforesaid) that the Prospectus or the
Prospectus Supplement at the 424 Date included, or at the date hereof includes,
any untrue statement of a material fact or the Prospectus or the Prospectus
Supplement at the 424 Date omitted, or at the date hereof omits, to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
This opinion is furnished solely for your benefit, and it is not to be
quoted, in whole or in part, or otherwise referred to, nor is it to be filed
with any governmental agency or any other person, and no person or entity other
than you shall be entitled to rely upon this opinion without our express written
consent. This opinion is given as of the date hereof, and we assume no
obligation to advise you after the date hereof of facts or circumstances that
come to our attention or changes in law that occur which could affect the
opinion contained herein.
Very truly yours,
HUNTON & WILLIAMS
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