EXHIBIT 1(c)
FLORIDA POWER & LIGHT COMPANY
FLORIDA POWER & LIGHT COMPANY TRUST __
PREFERRED TRUST SECURITIES
------------------------------
UNDERWRITING AGREEMENT
------------------------------
[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") and Florida Power & Light Company Trust __, a statutory trust formed
under the Delaware Statutory Trust Act (the "Trust" or "Florida Power & Light
Company Trust __," and hereinafter, together with FPL, the "Offerors"), confirm
their agreement with respect to the issue and sale by the Trust and the purchase
by the Underwriters (as defined below) of the Trust's [__] Preferred Trust
Securities, [of the series designation[s], with the terms and in the liquidation
amount[s] specified in Schedule I hereto] (the "Preferred Trust Securities").
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 7 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 Securities. Each of the Preferred Trust Securities
represents a preferred undivided beneficial interest in the assets of the Trust.
The Preferred Trust Securities will be issued pursuant to an Amended and
Restated Trust Agreement, dated as of ___________, among The Bank of New York,
as Property Trustee (the "Property Trustee"), The Bank of New York (Delaware),
as Delaware Trustee (the "Delaware Trustee"), certain employees of FPL or its
affiliates, as Administrative Trustees (the "Administrative Trustees"), FPL, as
depositor, and the several Holders (as defined therein), in substantially the
form heretofore delivered to you as the Representatives, said agreement being
hereinafter referred to as the "Trust Agreement." The Preferred Trust Securities
will be guaranteed on a subordinated basis by FPL as to the payment of
distributions and payments upon liquidation or redemption, as and to the extent
set forth in the Preferred Trust Securities Guarantee Agreement dated as of
__________ (the "Guarantee Agreement"), between FPL and The Bank of New York, as
trustee (the "Trust Guarantee").
The proceeds from the sale of the Preferred Trust Securities to the
public will be combined with the proceeds from the sale by the Trust to FPL of
its common securities, representing common undivided beneficial interests in the
assets of the Trust (the "Common Securities"), and will be used by the Trust to
purchase the subordinated debt securities of the series designation, with the
terms and in the principal amount specified in Schedule I hereto to be issued by
FPL (the "Subordinated Debentures"). The Subordinated Debentures will be issued
pursuant to an Indenture (For Unsecured Subordinated Debt Securities relating to
Trust Securities) between FPL and The Bank of New York, as trustee
("Subordinated Indenture Trustee") (the "Subordinated Indenture"). The Preferred
Trust Securities and the Trust Guarantee, together with the Subordinated
Debentures, are referred to herein as the "Offered Securities."
3. Representations and Warranties of the Trust. The Trust represents
and warrants to the several Underwriters that:
(a) The Trust, together with FPL and Florida Power & Light
Company Trust __, a Delaware statutory trust ("Florida Power & Light
Company Trust __"), filed with the Securities and Exchange Commission
(the "Commission") a joint registration statement on Form S-3,
including a prospectus ("Registration Statement Nos. 333-________,
333-_______-01 and 333-_______-02"), for the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of (a)
$1,000,000,000 aggregate amount of (i) FPL's first mortgage bonds
("First Mortgage Bonds"), (ii) shares of FPL's serial Preferred Stock,
$100 par value ("Serial Preferred Stock") and shares of FPL's Preferred
Stock without par value ("No Par Preferred Stock," and together with
the Serial Preferred Stock, "Preferred Stock"), (iii) Subordinated
Debentures, and (iv) Preferred Trust Securities, and (b) the Trust
Guarantee. [None] [$__________] of the $1,000,000,000 aggregate amount
of securities registered with the Commission under the Securities Act
pursuant to Registration Statement Nos. 333-________, 333-______-01
and 333-_______-02 [has] [have] been previously issued. 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 the Trust,
threatened by the Commission. References herein to the term
"Registration Statement" as of any given date shall mean Registration
Statement Nos. 333-________, 333-______-01 and 333-_______-02, 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 the Trust
files a joint registration statement with FPL and Florida Power &
Light Company Trust __ with the Commission 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.
2
References herein to the term "Prospectus" as of any given date shall
mean the prospectus forming a part of Registration Statement Nos.
333-________, 333-______-01 and 333-_______-02, as supplemented by a
prospectus supplement relating to the Offered Securities 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 (i) securities other than the Offered Securities or (ii)
when referring to the Prospectus relating to a particular offering of
the Offered Securities, Offered Securities other than the Offered
Securities being offered on such date), 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 Nos. 333-________, 333-______-01 and 333-_______-02 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). The prospectus
supplement relating to the Offered Securities proposed to be filed
pursuant to Rule 424 shall be substantially in the form delivered to
the Representatives prior to the execution of this agreement. Prior to
the termination of the offering of the Offered Securities, the Trust
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 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. Each of the Underwriters acknowledges
that subsequent to the Closing Date, the Trust may file a
post-effective amendment to the Registration Statement in order to
file one or more unqualified opinions of counsel pursuant to Rule
462(d) under the Securities Act.
(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 Trust Agreement,
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 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, both 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; 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 the Offerors 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 Statements
of Eligibility on Form T-1, or amendments thereto, filed as exhibits
to the Registration Statement or incorporated into the Registration
Statement (collectively, the "Statements of Eligibility") or to any
statements or omissions made in the Registration Statement or the
3
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 execution and delivery of this agreement and the
consummation of the transactions herein contemplated by the Trust, and
the fulfillment of the terms hereof on the part of Trust to be
fulfilled, have been duly authorized by all necessary trust action of
the Trust in accordance with the provisions of its certificate of
trust, trust agreement or other organizational documents
(collectively, the "Trust Charter Documents") and applicable law, and
the Preferred Trust Securities when issued and delivered as provided
herein will constitute valid and binding obligations of the Trust
enforceable against it in accordance with their terms, except as
limited or affected by bankruptcy, insolvency, reorganization,
receivership, moratorium or other laws affecting creditors' rights and
remedies generally and general principles of equity. The performance
by the Trust of its obligations under the Trust Agreement does not
require any consent, approval, authorization, registration or
qualification of or by any governmental agency or body other than
those consents, approvals, authorizations, registrations or
qualifications as have already been obtained.
(d) The execution and delivery of this agreement and the
consummation of the transactions herein contemplated by the Trust, and
the fulfillment of the terms hereof on the part of the Trust to be
fulfilled will not result in a breach of any of the terms or
provisions of, or constitute a default under, the Trust Charter
Documents, or any indenture, mortgage, deed of trust or other
agreement or instrument to which the Trust is now a party, or violate
any law or any order, rule, decree or regulation applicable to the
Trust of any federal or state court, regulatory board or body or
administrative agency having jurisdiction over the Trust 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 the Trust.
(e) The Trust is not an "investment company" within the meaning
of the Investment Company Act of 1940, as amended ("1940 Act").
4. Representations and Warranties of FPL. FPL represents and warrants
to the several Underwriters that:
(a) FPL has, together with the Trust and Florida Power & Light
Company Trust __, filed with the Commission Registration Statement
Nos. 333-________, 333-_______-01 and 333-_______-02, for the
registration under the Securities Act, of (a) $1,000,000,000 aggregate
amount of (i) First Mortgage Bonds, (ii) Preferred Stock, (iii)
Subordinated Debentures and (iv) Preferred Trust Securities and (b)
the Trust Guarantee. Such registration statement has been declared
effective by the Commission and no stop order suspending such
effectiveness has been issued under the Securities Act and no
proceedings for that purpose have been instituted or are pending or,
to the knowledge of FPL, threatened by the Commission. [None]
[$__________] of the $1,000,000,000 aggregate amount of securities
registered with the Commission under the Securities Act pursuant to
Registration Statement Nos. 333-________, 333-_______-01 and
4
333-______-02 [has] [have] been previously issued. The prospectus
supplement relating to the Offered Securities proposed to be filed
pursuant to Rule 424 shall be substantially in the form delivered to
the Representatives prior to the execution of this agreement. Prior to
the termination of the offering of the Offered Securities, 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 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. Each of the Underwriters acknowledges that subsequent to
the Closing Date, FPL may file a post-effective amendment to the
Registration Statement in order to file one or more unqualified
opinions of counsel pursuant to Rule 462(d) under the Securities Act.
(b) The Registration Statement at the Effective Date fully
complied, and the Prospectus, both on the 424 Date and at the Closing
Date, and the Registration Statement and the Subordinated Indenture,
at the Closing Date, will fully comply, in all material respects with
the applicable provisions of the Securities Act and 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 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, both 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; 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 the Offerors 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 Statements
of Eligibility or to any statements or omissions made in the
Registration Statement or Prospectus relating to the 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
consolidated financial condition and results of operations of FPL and
its subsidiaries taken as a whole 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 of FPL, 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
5
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 and its
subsidiaries taken as a whole, whether or not in the ordinary course
of business, nor has any transaction been entered into by FPL or any
of its subsidiaries that is material to FPL and its subsidiaries taken
as a whole, other than changes and transactions contemplated by the
Registration Statement and Prospectus, and transactions in the
ordinary course of business. FPL and its subsidiaries have no
contingent obligation material to FPL and its subsidiaries taken as a
whole, which is not disclosed in or contemplated by the Registration
Statement and Prospectus.
(e) The execution and delivery of this agreement and the
consummation of the transactions herein contemplated by FPL, 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 "FPL Charter"), by-laws and applicable
law, and the Subordinated Debentures when issued and delivered as
provided herein will constitute valid and binding obligations of FPL
enforceable against it in accordance with their terms, except as
limited or affected by bankruptcy, insolvency, reorganization,
receivership, moratorium or other laws affecting creditors' rights and
remedies generally and general principles of equity. The execution and
delivery of the Subordinated Debentures and the Subordinated Indenture
and the performance by FPL of its obligations thereunder do not
require any consent, approval, authorization, registration or
qualification of or by any governmental agency or body other than
those consents, approvals, authorizations, registrations or
qualifications as have already been obtained.
(f) The execution and delivery of this agreement and the
consummation of the transactions herein contemplated by FPL, the
fulfillment of the terms hereof on the part of FPL, to be fulfilled,
and the compliance by FPL with all the terms and provisions of the
Subordinated Indenture will not result in a breach of any of the terms
or provisions of, or constitute a default under, the FPL Charter or
by-laws, or any indenture, mortgage, deed of trust or other agreement
or instrument to which FPL or any of its subsidiaries is now a party,
or violate any law or any order, rule, decree or regulation applicable
to FPL or any of its subsidiaries of any federal or state court,
regulatory board or body or administrative agency having jurisdiction
over FPL or any of its subsidiaries or any of their respective
property, except where such breach, default or violation would not
have a material adverse effect on the business, properties or
financial condition of FPL and its subsidiaries taken as a whole.
(g) FPL has no direct or indirect significant subsidiaries (as
defined in Regulation S-X (17 CFR Part 210)).
(h) FPL has been duly organized, is validly existing and is in
good standing under the laws of its respective jurisdiction of
organization, and is duly qualified to do business and is in good
standing as a foreign corporation or other entity in each jurisdiction
in which its respective ownership of properties or the conduct of its
respective businesses requires such qualification, except where the
failure so to qualify would not have a material adverse effect on the
business, properties or financial condition of FPL, and has the power
6
and authority as a corporation or other entity necessary to own or
hold its respective properties and to conduct the businesses in which
it is engaged.
(i) The Subordinated Debentures conform in all material respects
to the description thereof in the Prospectus.
(j) The Subordinated Indenture (i) has been duly authorized by
FPL by all necessary corporate action, has been duly executed and
delivered by FPL, and is a valid and binding instrument enforceable
against FPL in accordance with its terms, except as limited or
affected by bankruptcy, insolvency, reorganization, receivership,
moratorium or other laws affecting creditors' rights and remedies
generally and general principles of equity and (ii) conforms in all
material respects to the description thereof in the Prospectus.
(k) FPL is not an "investment company" within the meaning of the
1940 Act.
5. Purchase and Sale. On the basis of the representations and
warranties herein contained, and subject to the terms and conditions in this
agreement, the Trust 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 the Trust the respective
number of Preferred Trust Securities set forth opposite their respective names
in Schedule II hereto at the purchase price for those Preferred Trust Securities
set forth in Schedule I hereto.
The Underwriters agree to make a bona fide public offering of the
Preferred Trust Securities and the Trust Guarantee 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 the Trust that the Preferred Trust
Securities will be offered to the public at the amount per Preferred Trust
Security as set forth in Schedule I hereto as the Public Offering Price and to
certain dealers selected by the Representatives at a price which represents a
concession not in excess of the amount of $[__] per Preferred Trust Security
under the public offering price as set forth in Schedule I hereto as the
Dealers' Concession.
6. Time, Date and Place of Closing, Default of Underwriter. Delivery of
the Preferred Trust Securities 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,
the Trust and the Representatives. The Trust hereby directs the Underwriters to
make such payment for the Preferred Trust Securities to FPL on behalf of the
Trust. The time and date of such delivery and payment are herein called the
"Closing Date."
The Preferred Trust Securities 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 Preferred Trust Securities shall be made through the
facilities of DTC unless FPL, the Trust and the Representatives shall otherwise
agree. For the purpose of expediting the checking of the Preferred Trust
7
Securities by the Representatives on behalf of the Underwriters, the Trust
agrees to make such Preferred Trust Securities 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, the Trust and the Representatives. In view of the
fact that the proceeds of the sale of the Preferred Trust Securities will be
used by the Trust to purchase Subordinated Debentures, FPL agrees to make the
other Offered Securities available to the Representatives for the purposes and
at the place and time determined in accordance with the immediately preceding
sentence.
If any Underwriter shall fail to purchase and pay for the number of the
Preferred Trust Securities which such Underwriter has agreed to purchase and pay
for hereunder (otherwise than by reason of any failure on the part of the
Offerors 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 number of the Preferred Trust Securities set forth
opposite their respective names in Schedule II hereto) the number of the
Preferred Trust Securities which such defaulting Underwriter or Underwriters
failed to purchase and pay for, up to a number thereof equal to, in the case of
each such remaining Underwriter, ten percent (10%) of the aggregate number of
the Preferred Trust Securities 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 number
of the Preferred Trust Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase, or (ii) substitute another
Underwriter or Underwriters, satisfactory to FPL and the Trust, to purchase and
pay for the remaining number of the Preferred Trust Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase. If any of
the Preferred Trust Securities still remain unpurchased, then FPL or the Trust
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 Preferred Trust Securities on the terms herein set forth. In
the event that, within the respective prescribed periods, (i) the non-defaulting
Underwriters notify FPL and the Trust that they have arranged for the purchase
of such Preferred Trust Securities or (ii) FPL or the Trust notifies the
non-defaulting Underwriters that it has arranged for the purchase of such
Preferred Trust Securities, the non-defaulting Underwriters or FPL or the Trust
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
or the Trust has arranged for the purchase of such Preferred Trust Securities by
another party or parties as above provided, then this agreement shall terminate
without any liability on the part of FPL, the Trust 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
8
for the Preferred Trust Securities which such Underwriter has agreed to purchase
as provided in Section 5 hereof), except as otherwise provided in Section 10 and
subsections (c) and (e) of Section 7 hereof.
7. Covenants of the Offerors. The Offerors agree with the several
Underwriters that:
(a) The Offerors 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 Offered
Securities, including a signed or conformed copy of each consent and
certificate included therein or filed as an exhibit thereto. As soon
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 Preferred Trust
Securities as provided in Section 6 hereof and of the other Offered
Securities as contemplated hereby, and (iii) printing and delivery to
the Representatives for the account of the Underwriters, in reasonable
quantities, of copies of the Registration Statement, the Prospectus,
the Subordinated Indenture, the Trust Agreement and the Guarantee
Agreement. FPL will pay or cause to be paid all taxes, if any (but not
including any transfer taxes), on the issuance of the Offered
Securities. The Offerors shall not, however, be required to pay any
amount for any expenses of the Representatives or any of the
Underwriters, except that if this agreement shall be terminated in
accordance with the provisions of Sections 8 or 9 hereof, FPL will pay
or cause to be paid the fees and disbursements of Counsel for the
Underwriters, whose fees and disbursements the Underwriters agree to
pay in any other event and 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. Neither of the Offerors shall 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 either of the
Offerors 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 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 when the Prospectus is delivered to a purchaser, not
9
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) The Offerors will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the Preferred
Trust Securities, the Trust Guarantee, and to the extent required or
advisable, the other Offered Securities, 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 of counsel not to exceed $5,000 and reasonable
disbursements of counsel), provided that neither of the Offerors shall
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
either Offeror 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 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) The Offerors 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 Offered Securities 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) If Subordinated Debentures are distributed to holders of
Preferred Trust Securities upon liquidation of the Trust, FPL will
take such action as is required in order to comply with (or be exempt
from) all applicable securities or blue sky laws of the various
jurisdictions in the United States in connection with such
distribution. The provisions of this Section 7(h) shall survive the
delivery of the Preferred Trust Securities.
8. Conditions of Underwriters' Obligations to Purchase and Pay for
Preferred Trust Securities. The several obligations of the Underwriters to
purchase and pay for the Preferred Trust Securities shall be subject to the
performance by the Offerors of their obligations to be performed hereunder on or
prior to the Closing Date and to the following conditions:
(a) The representations and warranties made by the Offerors
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 Preferred Trust
10
Securities, a certificate from each of the Offerors dated the Closing
Date and signed by an officer, in the case of FPL, and by an
administrative trustee or authorized representative in the case of the
Trust, 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 Preferred Trust Securities, a certificate
from each of FPL and the Trust dated the Closing Date and signed by an
officer in the case of FPL and by an administrative trustee or
authorized representative in the case of the Trust, 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 or the Trust, as the case may be, threatened by,
the Commission.
(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 Offered Securities 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, Hunton & Williams LLP, Counsel for the
Underwriters, and Morris, James, Hitchens & Williams LLP, special
Delaware counsel to FPL and the Trust, opinions (with a copy for each
of the Underwriters) in substantially the form and substance
prescribed in Schedules III, IV, V and VI hereto (i) with such changes
therein as may be agreed upon by the Offerors and the Representatives,
with the approval of Counsel for the Underwriters, and (ii) if the
Prospectus relating to the Offered Securities 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, and in Statement on Auditing Standards No. 100,
Interim Financial Information, on the unaudited condensed consolidated
financial statements of FPL, if any, incorporated by reference in the
11
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, if any,
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 FPL's common 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 [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 and
its subsidiaries taken as a whole, 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 or
any of its subsidiaries that is material to FPL and its subsidiaries
taken as a whole, 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
12
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 Preferred Trust Securities and the Trust
Guarantee shall have been satisfactory in form and substance to
Counsel for the Underwriters.
(h) [The Preferred Trust Securities shall have been approved for
listing on The New York Stock Exchange, Inc. ("NYSE") upon official
notice of issuance.]
In case any of the conditions specified above in this Section 8 shall
not have been fulfilled, this agreement may be terminated by the Representatives
upon mailing or delivering written notice thereof to the Offerors. 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 7 hereof.
9. Condition of the Offerors' Obligations. The obligations of the Trust
and FPL to deliver the Preferred Trust Securities and the Trust Guarantee,
respectively, to the Representatives for the respective accounts of the
Underwriters and the obligation of FPL to deliver the Subordinated Debentures to
the Trust 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
for either such purpose shall be pending before, or threatened by, the
Commission on such date; and
(b) No "Tax Event" (as defined in the Trust Agreement) shall have
occurred and be continuing on the Closing Date.
(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 Offered Securities 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 9 shall not have
been fulfilled, this agreement may be terminated by the Offerors 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 7 hereof.
10. Indemnification.
(a) The Offerors, jointly and severally, agree 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
13
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 an 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 10 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 the Offerors by or on behalf of
any Underwriter, through the Representatives, expressly for use in
connection with the preparation of any preliminary prospectus, 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, or amendments thereto, filed as exhibits to the Registration
Statement; and provided, further, that the indemnity agreement
contained in this subsection (a) of Section 10 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 officer or director of or person controlling such Underwriter)
on account of any such losses, claims, damages, liabilities, expenses
or actions arising from the sale of the Preferred Trust Securities 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 Preferred Trust Securities
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 Preferred Trust
Securities 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 Preferred Trust Securities. The
indemnity agreement of the Offerors contained in this subsection (a)
of Section 10 and the representations and warranties of the Trust and
FPL contained in Sections 3 and 4 hereof, respectively, 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 Preferred Trust Securities. The Underwriters agree
promptly to notify each of the Offerors, and each other Underwriter,
14
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 Offered Securities.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless each of the Offerors, their respective
officers and directors, and each person who controls the Trust or FPL,
as the case may be, 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 any preliminary prospectus, 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 the Offerors by or on behalf
of such Underwriter, through the Representatives, expressly for use in
connection with the preparation of any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment or
supplement to either thereof. The Underwriters hereby furnish to the
Offerors in writing expressly for use in the [preliminary prospectus,
the] Registration Statement and Prospectus, [insert information
provided by the Underwriters]. Each of the Offerors acknowledge 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,
the Registration Statement or the Prospectus. The indemnity agreement
of the respective Underwriters contained in this subsection (b) of
Section 10 shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Offerors
or any of their respective officers or directors or any such other
Underwriter or any such controlling person, and shall survive the
delivery of the Preferred Trust Securities. The Offerors agree
promptly to notify the Representatives of the commencement of any
litigation or proceedings against either of the Offerors (or any
controlling person thereof) or any of their respective officers or
directors in connection with the issuance and sale of the Offered
Securities.
(c) The Offerors and each of 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 10, 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
15
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 each of the indemnifying
parties shall elect not to assume the defense of such action, such
indemnifying party or parties 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 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). The Offerors and each of 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 10, 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
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 the Offerors 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 the
Offerors on the one hand and the Underwriters on the other hand from
the offering of the Preferred Trust Securities 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 the Offerors 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. The Offerors 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
16
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 Preferred Trust Securities 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
Preferred Trust Securities is to the total amount of Preferred Trust
Securities set forth in Schedule II hereto.
11. Termination. This agreement may be terminated by the
Representtives by delivering written notice thereof to the Offerors, at any
time prio to the Closing Date, if after the date hereof and at or prior to the
Closing Dte:
(a) (i) there shall have occurred any general suspension of
trading in securities on 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 material adverse change in the financial
markets in the United States, any outbreak of hostilities, including,
but not limited to, an escalation of hostilities which existed prior
to the date of this agreement, any other national or international
calamity or crisis or any material adverse change in financial,
political or economic conditions affecting the United States, the
effect of any such event specified in this clause (ii) being such as
to make it, in the reasonable judgment of the Representative,
impracticable or inadvisable to proceed with the offering of the
Preferred Trust Securities as contemplated in the Prospectus or for
the Underwriters to enforce contracts for the sale of the Preferred
Trust Securities, or
(b) (i) there shall have been any downgrading or any notice of
any intended or potential downgrading in the ratings accorded to the
Preferred Trust Securities or the Subordinated Debentures or any
securities of FPL which are of the same class as the Subordinated
Debentures by either Moody's Investors Service, Inc. ("Moody's") or
Standard & Poor's Ratings Services, a division of The 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 Preferred Trust
Securities or the Subordinated Debentures or any securities of FPL
which are of the same class as the Subordinated Debentures, 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 Preferred Trust Securities
and the delivery of the Preferred Trust Securities by the several
Underwriters at the initial public offering price.
17
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 the Offerors after the date hereof reflects a material adverse
change in the business, properties or financial condition of FPL and its
subsidiaries taken as a whole which renders it either inadvisable to proceed
with such offering, if any, or inadvisable to proceed with the delivery of the
Preferred Trust Securities to be purchased hereunder. Any termination of this
agreement pursuant to this Section 11 shall be without liability of any party to
any other party except as otherwise provided in subsections (c) and (e) of
Section 7 hereof.
12. Miscellaneous. The validity and interpretation of this agreement
shall be governed by the laws of the State of New York, without regard to
conflicts of law principles thereunder. This agreement shall inure to the
benefit of, and be binding upon, the Offerors, the several Underwriters and,
with respect to the provisions of Section 10 hereof, each officer, director or
controlling person referred to in said Section 10, 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 Preferred Trust Securities from any of the several
Underwriters.
13. 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 or
the Trust, shall be mailed or delivered to it at 700 Universe Boulevard, Juno
Beach, Florida 33408, Attention: Treasurer.
18
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 Trust __
By: ________________________________
Name:
Title: Administrative Trustee
Florida Power & Light Company
By: _________________________________
Name:
Title:
Accepted and delivered as of the
date first above written:
By:______________________________
Name:
Title:
Acting on [its] [their] own behalf and on behalf of the other several
Underwriters referred to in the foregoing agreement.
19
SCHEDULE I
Underwriting Agreement dated _______, 200__
Registration Statement] Nos. 333-_______, 333-_______-01 and 333-_______-02
Representatives and Addresses:
Preferred Trust Securities:
Designation:
Number of Preferred Trust Securities:
Aggregate Liquidation Amount: $
Public Offering Price: $
Underwriting Discount: $
Purchase Price: $
Dealers' Concession: $
Closing Date, Time and Location:________, 200__ at the
offices of Thelen Reid & Priest
LLP, 875 Third Avenue, New York,
New York at ____ a.m.
Subordinated Debentures:
Designation:
Principal Amount:
Date of Maturity:
Interest Rate:
I-1
SCHEDULE II
Number of
Preferred Trust
Underwriter Securities
------------
Total...................................
============
II-1
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") and
Florida Power & Light Company Trust __ (the "Trust") in connection with (a) the
authorization and issuance (i) by the Trust of $_____ aggregate liquidation
amount of its Preferred Trust Securities (the "Preferred Trust Securities"),
(ii) by FPL of $_________ aggregate principal amount of its Junior Subordinated
Debentures, Series due __________ (the "Junior Subordinated Debentures"), issued
under the Indenture (For Unsecured Subordinated Debentures relating to Trust
Securities), dated as of _____________ (the "Subordinated Indenture"), between
FPL, as issuer, and The Bank of New York, as Subordinated Indenture Trustee, and
(iii) the guarantee by FPL on a subordinated basis of the Preferred Trust
Securities (the "Preferred Trust Securities Guarantee") pursuant to the
Preferred Trust Securities Guarantee Agreement, dated as of __________ (the
"Preferred Trust Securities Guarantee Agreement"), between FPL, as guarantor,
and The Bank of New York, as Preferred Trust Securities Guarantee Trustee, and
(b) the sale of the Preferred Trust Securities to you in accordance with the
Underwriting Agreement, dated __________ (the "Agreement"), among you, FPL and
the Trust. 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 Nos. 333-_______, 333-_______-01 and 333-_______-02, which became
effective on _________, which registration statement was filed by FPL, Florida
Power & Light Trust __ and the Trust 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 Nos. 333-_______, 333-_______-01 and
333-_______-02, 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 __________ relating to the
Preferred Trust Securities, Junior Subordinated Debentures and the Preferred
Trust Securities Guarantee, both such prospectus and prospectus supplement filed
pursuant to Rule 424(b) under the Securities Act ("Rule 424" and references
III-1
herein to the "Prospectus" as of any given date shall refer to such prospectus,
as supplemented by the prospectus supplement relating to the Preferred Trust
Securities, Junior Subordinated Debentures and the Preferred Trust Securities
Guarantee filed pursuant to Rule 424, and as further amended and supplemented to
such date, including the Incorporated Documents); (3) the Subordinated
Indenture; (4) the Preferred Trust Securities Guarantee Agreement; (5) the
Agreement as to Expenses and Liabilities, dated as of __________ ("Agreement as
to Expenses"), between FPL and the Trust; (6) the Amended and Restated Trust
Agreement, dated as of __________ (the "Trust Agreement"), among The Bank of New
York, as Property Trustee, The Bank of New York (Delaware), as Delaware Trustee,
FPL, as depositor, certain employees of FPL, as Administrative Trustees, and the
several Holders (as defined therein); (7) the corporate proceedings of FPL with
respect to the Registration Statement, the Subordinated Indenture, the Junior
Subordinated Debentures, the Preferred Trust Securities Guarantee, the Preferred
Trust Securities Guarantee Agreement, the Trust Agreement and the Agreement as
to Expenses; (8) FPL's Restated Articles of Incorporation as amended to the date
hereof (the "FPL Charter") and Bylaws as amended to the date hereof (the "FPL
Bylaws"); and (9) 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 securities in
200_, including the Preferred Trust Securities.
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 Subordinated Indenture 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
creditors' rights and remedies generally and general principles of equity.
IV.
The Junior Subordinated Debentures are valid and binding obligations of
FPL enforceable against it in accordance with their terms, except as limited or
affected by bankruptcy, insolvency, reorganization, receivership, moratorium or
III-2
other laws affecting creditors' rights and remedies generally and general
principles of equity.
V.
The Preferred Trust Securities Guarantee Agreement and Agreement as to
Expenses have been duly authorized by FPL by all necessary corporate action,
have been duly and validly executed and delivered by FPL, and 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 creditors'
rights and remedies generally and general principles of equity.
VI.
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 Statements 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.
VII.
The consummation of the transactions contemplated in the Agreement and
the fulfillment of the terms contained in the Agreement and, with respect to (i)
the Junior Subordinated Debentures, the compliance by FPL with all the terms and
provisions of the Subordinated Indenture and (ii) the Preferred Trust
Securities, the compliance by FPL with all the terms and provisions of the
Preferred Trust Securities Guarantee Agreement, Preferred Trust Securities
Guarantee, Trust Agreement and Agreement as to Expenses, will not result in a
breach of any of the terms or provisions of, or constitute a default under, as
the case may be, the FPL Charter or the FPL Bylaws, or any indenture, mortgage,
deed of trust or other agreement or instrument the terms of which are known to
us to which FPL or any of its subsidiaries 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 together with its subsidiaries taken as
a whole.
VIII.
The Preferred Trust Securities, the Junior Subordinated Debentures and
the Preferred Trust Securities Guarantee 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 Preferred Trust Securities, the Junior
III-3
Subordinated Debentures and the Preferred Trust Securities Guarantee. 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 Junior Subordinated Debentures or
the Preferred Trust Securities as guaranteed pursuant to the Preferred Trust
Securities Guarantee.
IX.
The statements made in the Prospectus under the headings ["Description
of Preferred Trust Securities," "Description of the Preferred Trust Securities
Guarantee," and "Description of the Junior Subordinated Debentures,"] 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 Subordinated Indenture, the Preferred Trust Securities Guarantee
Agreement and the Trust Agreement are duly qualified under the Trust Indenture
Act of 1939, as amended.
XI.
The Agreement has been duly and validly authorized, executed and
delivered by FPL and the Trust.
XII.
[The Preferred Trust Securities have been listed, upon official notice
of issuance on The New York Stock Exchange, Inc.]
XIII.
Except as stated or referred to in the Prospectus, to our knowledge
after due inquiry, there is no material pending legal proceeding to which FPL or
any of its subsidiaries is a party or of which property of FPL or any of its
subsidiaries 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 its subsidiaries taken as a whole, 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 Common Trust Securities of the Trust (the "Common
Trust Securities"), the Preferred Trust Securities and the Junior Subordinated
Debentures will conform to specimens examined by us, that the Junior
Subordinated Debentures will be duly authenticated by the Subordinated Indenture
Trustee under the Subordinated Indenture, that the certificates representing the
Common Trust Securities and the Preferred Trust Securities will, if required by
the Subordinated Indenture, be duly countersigned by the transfer agent and duly
registered by the registrar thereof, and that the Preferred Trust Securities and
Junior Subordinated Debentures will be delivered against payment of the purchase
III-4
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. [Insert additional assumptions, if applicable.]
Other than with respect to the opinion expressed in Paragraph IX
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 Statements of
Eligibility on Form T-1, as to which we express no belief), that [any part of]
the Registration Statement, [at the Effective Date] [when such part became
effective], contained an 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, an 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 Florida Bar and do not hold ourselves out as
experts on the laws of New York or the laws of Delaware, 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 Delaware law, we have relied, with your consent, upon an opinion
of even date herewith addressed to you by Morris, James, Hitchens & Williams
LLP, Wilmington, Delaware, including the assumptions, qualifications,
limitations and exceptions therein. As to all matters of Florida law, Thelen
Reid & Priest LLP and Hunton & Williams LLP 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
III-5
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 to Florida Power & Light Company
("FPL") and Florida Power & Light Company Trust __ (the "Trust") in connection
with (a) the authorization and issuance (i) by the Trust of $_____ aggregate
liquidation amount of its Preferred Trust Securities (the "Preferred Trust
Securities"), (ii) by FPL of $_________ aggregate principal amount of its Junior
Subordinated Debentures, Series due __________ (the "Junior Subordinated
Debentures"), issued under the Indenture (For Unsecured Subordinated Debentures
relating to Trust Securities), dated as of _____________ (the "Subordinated
Indenture"), between FPL, as issuer, and The Bank of New York, as Subordinated
Indenture Trustee, and (iii) the guarantee by FPL on a subordinated basis of the
Preferred Trust Securities (the "Preferred Trust Securities Guarantee") pursuant
to the Preferred Trust Securities Guarantee Agreement, dated as of __________
(the "Preferred Trust Securities Guarantee Agreement"), between FPL, as
guarantor, and The Bank of New York, as Preferred Trust Securities Guarantee
Trustee, and (b) the sale of the Preferred Trust Securities to you in accordance
with the Underwriting Agreement, dated __________ (the "Agreement"), among you,
FPL and the Trust. 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 Nos. 333-_______, 333-_______-01 and 333-_______-02, which became
effective on _________, which registration statement was filed by FPL, Florida
Power & Light Trust __ and the Trust 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 Nos. 333-_______, 333-_______-01 and
333-_______-02, 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 __________ relating to the
Preferred Trust Securities, Junior Subordinated Debentures and the Preferred
Trust Securities Guarantee, 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,
IV-1
as supplemented by the prospectus supplement relating to the Preferred Trust
Securities, Junior Subordinated Debentures and the Preferred Trust Securities
Guarantee filed pursuant to Rule 424, and as further amended and supplemented to
such date, including the Incorporated Documents); (3) the Subordinated
Indenture; (4) the Preferred Trust Securities Guarantee Agreement; (5) the
Agreement as to Expenses and Liabilities, dated as of __________ ("Agreement as
to Expenses"), between FPL and the Trust; (6) the Amended and Restated Trust
Agreement, dated as of __________ (the "Trust Agreement"), among The Bank of New
York, as Property Trustee, The Bank of New York (Delaware), as Delaware Trustee,
FPL, as depositor, certain employees of FPL, as Administrative Trustees, and the
several Holders (as defined therein); (7) the corporate proceedings of FPL with
respect to the Registration Statement, the Subordinated Indenture, the Junior
Subordinated Debentures, the Preferred Trust Securities Guarantee, the Preferred
Trust Securities Guarantee Agreement, the Trust Agreement and the Agreement as
to Expenses; (8) FPL's Restated Articles of Incorporation as amended to the date
hereof (the "FPL Charter") and Bylaws as amended to the date hereof (the "FPL
Bylaws"); and (9) 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 securities in
200_, including the Preferred Trust Securities.
Upon the basis of the foregoing, we advise you that:
I.
The Subordinated Indenture 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
creditors' rights and remedies generally and general principles of equity.
II.
The Junior Subordinated Debentures are valid and binding obligations of
FPL enforceable against it in accordance with their terms, except as limited or
affected by bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws affecting creditors' rights and remedies generally and general
principles of equity.
III.
The Preferred Trust Securities Guarantee Agreement and Agreement as to
Expenses have been duly authorized by FPL by all necessary corporate action,
have been duly and validly executed and delivered by FPL, and 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 creditors'
rights and remedies generally and general principles of equity.
IV-2
IV.
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 Statements 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.
V.
The consummation of the transactions contemplated in the Agreement and
the fulfillment of the terms contained in the Agreement and, with respect to (i)
the Junior Subordinated Debentures, the compliance by FPL with all the terms and
provisions of the Subordinated Indenture and (ii) the Preferred Trust
Securities, the compliance by FPL with all the terms and provisions of the
Preferred Trust Securities Guarantee Agreement, Preferred Trust Securities
Guarantee, Trust Agreement and Agreement as to Expenses, will not result in a
breach of any of the terms or provisions of, or constitute a default under, as
the case may be, the FPL Charter or the FPL Bylaws, or any indenture, mortgage,
deed of trust or other agreement or instrument the terms of which are known to
us to which FPL or any of its subsidiaries 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 together with its subsidiaries taken as
a whole.
VI.
The Preferred Trust Securities, the Junior Subordinated Debentures and
the Preferred Trust Securities Guarantee 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 Preferred Trust Securities, the Junior
Subordinated Debentures and the Preferred Trust Securities Guarantee. 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 Junior Subordinated Debentures or
the Preferred Trust Securities as guaranteed pursuant to the Preferred Trust
Securities Guarantee.
VII.
The statements made in the Prospectus under the headings "Description
of Preferred Trust Securities," "Description of the Preferred Trust Securities
Guarantee," and "Description of the Junior Subordinated Debentures," insofar as
they purport to constitute summaries of the terms of the documents referred to
IV-3
therein, constitute accurate summaries of the terms of such documents in all
material respects.
VIII.
The Subordinated Indenture, the Preferred Trust Securities Guarantee
Agreement and the Trust Agreement are duly qualified under the Trust Indenture
Act of 1939, as amended.
IX.
The Agreement has been duly and validly authorized, executed and
delivered by FPL and the Trust.
X.
[The Preferred Trust Securities have been listed, upon official notice
of issuance on The New York Stock Exchange, Inc.]
XI.
Except as stated or referred to in the Prospectus, to our knowledge
after due inquiry, there is no material pending legal proceeding to which FPL or
any of its subsidiaries or of which property of FPL or any of its subsidiaries
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 its subsidiaries taken as a whole, and, to the best of our
knowledge, no such proceeding is known to be contemplated by governmental
authorities.
We herewith confirm as our opinion the statements under the caption
"Material United States Federal Income Tax Consequences Relating to the
Preferred Trust Securities" in the Prospectus.
In rendering the foregoing opinion, we have assumed that the
certificates representing the Common Trust Securities of the Trust (the "Common
Trust Securities"), the Preferred Trust Securities and the Junior Subordinated
Debentures will conform to specimens examined by us, that the Junior
Subordinated Debentures will be duly authenticated by the Subordinated Indenture
Trustee under the Subordinated Indenture, that the certificates representing the
Common Trust Securities and the Preferred Trust Securities will, if required by
the Subordinated Indenture, be duly countersigned by the transfer agent and duly
registered by the registrar thereof, and that the Preferred Trust Securities and
Junior Subordinated Debentures 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. [Insert additional assumptions, if applicable.]
Other than with respect to the opinion expressed in Paragraph VII
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
IV-4
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 Statements of Eligibility on
Form T-1, as to which we express no belief), that [any part of] the Registration
Statement, [at the Effective Date] [when such part became effective], contained
an 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, an 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 or the laws of Delaware. We do not pass upon
matters governed by Florida law, including, without limitation, the
incorporation of FPL, titles to property or franchises. 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 Delaware law, we have relied, with your consent, upon an opinion of
even date herewith addressed to you by Morris, James, Hitchens & Williams LLP],
Wilmington, Delaware, including the assumptions, qualifications, limitations and
exceptions therein. 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
IV-5
SCHEDULE V
[LETTERHEAD OF HUNTON & WILLIAMS 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 you in connection with your several
purchases from Florida Power & Light Company Trust __ (the "Trust") of
$___________ aggregate liquidation amount of its Preferred Trust Securities (the
"Preferred Trust Securities"), which Preferred Trust Securities are guaranteed
on a subordinated basis (the "Preferred Trust Securities Guarantee") by Florida
Power & Light Company, Inc. ("FPL") pursuant to the Preferred Trust Securities
Guarantee Agreement dated as of __________ (the "Preferred Trust Securities
Guarantee Agreement"), between FPL, as guarantor, and The Bank of New York, as
Preferred Trust Securities Guarantee Trustee, and the related transactions.
Capitalized terms used in this opinion but not defined shall have the meaning
set forth in the Underwriting Agreement, dated __________, among FPL and the
Trust (the "Agreement"). Capitalized terms used in this opinion but not defined
shall have the meanings set forth in the Agreement.
We have examined such documents and satisfied ourselves as to such
other matters as we have deemed necessary in order to enable us to express this
opinion.
Based on the foregoing, we are of the opinion that:
1. The Subordinated Indenture 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
creditors' rights and remedies generally and general principles of equity.
2. The Junior Subordinated Debentures are valid and binding obligations
of FPL enforceable against FPL in accordance with their terms, except as limited
or affected by bankruptcy, insolvency, reorganization, receivership, moratorium
or other laws affecting creditors' rights and remedies generally and general
principles of equity.
3. The Preferred Trust Securities Guarantee Agreement and the Agreement
as to Expenses and Liabilities, dated as of __________, each has been duly
authorized by FPL by all necessary corporate action, have 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 respective terms, except as
limited or affected by bankruptcy, insolvency, reorganization, receivership,
moratorium or
V-1
other laws affecting creditors' rights and remedies generally and general
principles of equity.
4. The Agreement has been duly authorized, executed and delivered by
FPL and the Trust.
5. Registration Statement Nos. 333-______, 333-______-01 and
333-_______-02 (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 we do not pass and except for those parts of the Registration
Statement that constitute the Statements of Eligibility on Form T-1, upon which
we do 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 we
do 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 our knowledge, no
proceedings for a stop order with respect to the Registration Statement are
pending or threatened under Section 8 of the Securities Act.
6. The Subordinated Indenture (including the Subordinated Debenture
Guarantee), the Preferred Trust Securities Guarantee Agreement and the Trust
Agreement are duly qualified under the Trust Indenture Act of 1939, as amended.
7. The statements made in the Prospectus under the headings,
["Description of Preferred Trust Securities," "Description of the Preferred
Trust Securities Guarantee," and "Description of the Junior Subordinated
Debentures,"] 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.
8. The Subordinated Indenture (including the Subordinated Debenture
Guarantee), the Preferred Trust Securities Guarantee Agreement and the Trust
Agreement are duly qualified under the Trust Indenture Act of 1939, as amended.
In passing on the form of the Registration Statement and the form of
the Prospectus, we necessarily assume the correctness and completeness of the
statements made or included therein by FPL and the Trust and take no
responsibility therefor, except insofar as such statements relate to us and as
set forth in Paragraph 7 above. Other than with respect to the opinion expressed
in Paragraph 6 hereof, we have not ourselves checked the accuracy or
completeness of, or otherwise verified, the information furnished with respect
to the 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 legal counsel, its independent public
accountants and your representatives. On the basis of such 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
V-2
incorporated by reference therein, as to which we express no belief, and except
for those parts of the Registration Statement that constitute the Statements of
Eligibility on Form T-1, as to which we express no belief), that any part of the
Registration Statement, when such part became effective, contained an 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, an 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.
This opinion is limited to the laws of the State of New York, the
federal laws of the United States of America and, to the extent set forth
herein, the law of the State of Florida. We have reviewed the opinion of even
date herewith addressed to you of Steel Hector & Davis LLP, counsel for FPL,
required by Section __ of the Agreement, and we believe such opinion to be
satisfactory. As to all mattes of Florida law, we have, with your consent,
relied upon such opinion as to the matters covered in such opinion of Steel
Hector & Davis LLP. We have also reviewed the opinions of even date herewith
addressed to you by Thelen Reid & Priest LLP, counsel to FPL, and Morris, James,
Hitchens & Williams LLP, special Delaware counsel to FPL and the Trust, each
required by Section __ of the Agreement, and we believe such opinions to be
satisfactory. We have, with your consent, relied upon the opinion of Morris,
James, Hitchens & Williams LLP as to the matters covered in such opinion
relating to the laws of the State of Delaware, including the assumptions,
qualifications, limitations and exceptions therein. We have assumed that the
Junior Subordinated Debentures and Preferred Trust Securities will conform to
specimens examined by us. In such examination, we have assumed the genuineness
of all signatures, the legal capacity of natural persons, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents.
This opinion is given to you solely for your use as the Underwriters in
connection with the Agreement and the transactions contemplated thereunder and
may not be relied upon by any other person or for any other purpose without our
express written consent. 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,
HUNTON & WILLIAMS LLP
V-3
SCHEDULE VI
[LETTERHEAD OF MORRIS, JAMES, HITCHENS & WILLIAMS LLP]
as Representatives of the Underwriters
named in Schedule II to the Agreement,
as herein described
Re: Florida Power & Light Company Trust __
Ladies and Gentlemen:
We have acted as special Delaware counsel for Florida Power & Light
Company, Inc., a Florida corporation ("FPL") and Florida Power & Light Company
Trust __, a Delaware statutory trust (the "Trust"), in connection with the
matters set forth herein. This opinion letter is being furnished to you pursuant
to Section 8(c) of the Underwriting Agreement (as defined below) relating to the
Preferred Trust Securities issued today by the Trust representing preferred
undivided beneficial interests in the assets of the Trust (each a "Preferred
Trust Security" and collectively, the "Preferred Trust Securities").
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies furnished to us of the following:
(a) The Trust Agreement of the Trust, dated as of ___________, by and
among FPL, as depositor (the "Depositor"), and the trustees of the Trust named
therein;
(b) The Certificate of Trust of the Trust, as filed in the office of
the Secretary of State of the State of Delaware (the "Secretary of State") on
___________ (the "Certificate");
(c) The Amended and Restated Trust Agreement of the Trust, dated
___________ (including Exhibits B and C attached thereto) (the "Trust
Agreement"), among the Depositor, the trustees of the Trust named therein (the
"Trustees"), and the several Holders (as defined therein);
(d) Registration Statement Nos. 333-______, 333-______-01 and
333-_______-02 (the "Registration Statement") on Form S-3, including a
prospectus (the "Preliminary Prospectus"), relating, among other things, to the
Preferred Trust Securities, as filed by FPL and the Trust with the Securities
and Exchange Commission on or about ___________;
(e) The Prospectus Supplement, dated ___________ (together with the
Preliminary Prospectus, the "Prospectus"), relating to the Preferred Trust
Securities;
(f) The Underwriting Agreement, dated ___________ (the "Underwriting
Agreement"), among the Trust, FPL and ___________ acting on its own behalf and
on behalf of the other several underwriters referred to therein; and
(g) A Certificate of Good Standing for the Trust, dated a recent date,
obtained from the Secretary of State.
The Common Trust Securities (as defined below) and the Preferred Trust
Securities are hereinafter referred to collectively as the "Trust Securities."
Unless otherwise defined herein, all capitalized terms used in this opinion
letter shall have the meanings provided in the Trust Agreement, except that
reference herein to any document shall mean such document as in effect on the
date hereof.
For the purposes of this opinion letter, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (g) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (g) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, (iii) the genuineness of all signatures, and (iv) such documents
submitted to us in final or execution form have not been and will not be altered
or amended in any respect material to our opinions as expressed in this letter
and conform in all material respects to the final, executed originals of such
documents.
For purposes of this opinion letter, we have assumed (i) that the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation, and termination of the Trust, and that the Trust Agreement and the
Certificate are in full force and effect and have not been amended or
terminated, (ii) except to the extent provided in paragraph 1 below, the due
creation, due formation or due organization, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, formation or organization,
(iii) the legal capacity of each natural person who is a party or signatory to
the documents examined by us, (iv) except to the extent provided in paragraph 3
below, that each of the parties to the documents examined by us has the power
and authority to execute and deliver, and to perform its obligations under, such
documents, (v) except to the extent provided in paragraphs 4 and 7 below, that
each of the parties to the documents examined by us has duly authorized,
executed and delivered such documents, (vi) the receipt by each Person to whom a
Preferred Trust Security is to be issued on the date hereof by the Trust (the
"Preferred Trust Security Holders") of a certificate for the Preferred Trust
Security in the form of Exhibit C to the Trust Agreement evidencing ownership of
such Preferred Trust Security in the name of such Person and the payment for the
Preferred Trust Security acquired by it, all in accordance with the Trust
Agreement and as described in the Prospectus, (vii) that the Preferred Trust
Securities are issued and sold to the Preferred Trust Security Holders in
accordance with the Trust Agreement and as described in the Prospectus, (viii)
the receipt by the Person to whom a Common Trust Security, representing common
undivided beneficial interests in the assets of the Trust (each, a "Common Trust
VI-2
Security" and collectively, the "Common Trust Securities"), is to be issued on
the date hereof by the Trust (the "Common Trust Security Holder") of a
certificate for the Common Trust Security in the form of Exhibit B to the Trust
Agreement evidencing ownership of such Common Trust Security in the name of such
Person and the payment for the Common Trust Security acquired by it, all in
accordance with the Trust Agreement and as described in the Prospectus, (ix)
that the Common Trust Securities are issued and sold to the Common Trust
Security Holder in accordance with the Trust Agreement and as described in the
Prospectus, (x) that the Trust derives no income from or connected with sources
within the State of Delaware and has no assets, activities (other than having a
Delaware trustee as required by the Delaware Statutory Trust Act, 12 Del. C. ss.
3801, et seq. (the "Act") and filing documents with the Secretary of State) or
employees in the State of Delaware, and (xi) that the Trust is treated as a
grantor trust for federal income tax purposes. We have not participated in the
preparation of any offering materials relating to the Trust or the Trust
Securities and we assume no responsibility for the contents of any such
materials.
Based upon the foregoing, and subject to the assumptions,
qualifications, limitations and exceptions set forth herein, we are of the
opinion that:
1. The Trust has been duly formed and is validly existing in good
standing as a statutory trust under the Act.
2. The Trust Agreement constitutes a valid and binding obligation of
the Depositor and Trustees party thereto, enforceable against such Depositor and
Trustees in accordance with its terms.
3. Under the Trust Agreement and the Act, the Trust has the requisite
trust power and authority (i) to own its properties and conduct its business,
all as described in the Prospectus under the caption "Florida Power & Light
Company Trust __", (ii) to execute and deliver, and perform its obligations
under, the Underwriting Agreement, and (iii) to issue, and perform its
obligations under, the Trust Securities.
4. The Preferred Trust Securities have been duly authorized for
issuance by the Trust and, when issued, executed and countersigned in accordance
with the Trust Agreement and delivered against payment therefor in accordance
with the Trust Agreement, will be validly issued and, subject to the
qualifications set forth in paragraph 5 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
5. Each Preferred Trust Security Holder, in such capacity, will be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware. We note, however, that the Preferred Trust Security
Holders may be required to make payment or provide indemnity or security as set
forth in the Trust Agreement.
6. Under the Trust Agreement and the Act, the issuance of the Preferred
Trust Securities is not subject to preemptive rights.
VI-3
7. Under the Trust Agreement and the Act, the execution and delivery by
the Trust of the Underwriting Agreement, and the performance by the Trust of its
obligations thereunder, have been duly authorized by the requisite trust action
on the part of the Trust.
8. The issuance and sale by the Trust of the Trust Securities, the
execution, delivery and performance by the Trust of the Underwriting Agreement,
the consummation by the Trust of the transactions contemplated by the
Underwriting Agreement, and the compliance by the Trust with its obligations
thereunder are not prohibited by (i) the Trust Agreement or the Certificate, or
(ii) any law or administrative regulation of the State of Delaware applicable to
the Trust.
9. No authorization, approval, consent or order of any Delaware court
or Delaware governmental authority or Delaware agency is required to be obtained
by the Trust solely in connection with the issuance and sale by the Trust of the
Preferred Trust Securities.
10. The Preferred Trust Security Holders (other than those Preferred
Trust Security Holders who reside or are domiciled in the State of Delaware)
will have no liability for income taxes imposed by the State of Delaware solely
as a result of their participation in the Trust, and the Trust will not be
liable for any income tax imposed by the State of Delaware.
The opinions in this letter are limited to the laws of the State of
Delaware (other than the securities laws of the State of Delaware) and we have
not considered and express no opinion on the effect of or concerning matters
involving the laws of any other jurisdiction, or rules, regulations, orders and
decisions relating to such laws, including, without limitation, (i) the federal
laws of the United States of America, including, without limitation, the
Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as
amended, the Trust Indenture Act of 1939, as amended, the Investment Company Act
of 1940, as amended, and the Employee Retirement Income Security Act of 1974, as
amended, and (ii) state securities or blue sky laws.
The opinion expressed in paragraph 2 above is subject, as to
enforcement, to the effect upon the Trust Agreement of (A) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation, fraudulent
conveyance or transfer and other similar laws relating to or affecting the
rights and remedies of creditors generally, (B) principles of equity, including
applicable law relating to fiduciary duties (regardless of whether considered
and applied in a proceeding in equity or at law), and (C) the effect of
applicable public policy on the enforceability of provisions relating to
indemnification or contribution.
We consent to your relying as to matters of Delaware law upon this
opinion letter in connection with the Underwriting Agreement. We also consent to
Steel Hector & Davis LLP, Thelen Reid & Priest LLP, and Hunton & Williams LLP
relying as to matters of Delaware law upon this opinion letter in connection
with opinions to be rendered by such counsel on the date hereof pursuant to the
Underwriting Agreement. Further, we consent to The Bank of New York (in its
capacity as trustee under the Subordinated Indenture, as trustee under the Trust
Securities Guarantee, and as Property Trustee under the Trust Agreement) and The
Bank of New York (Delaware) (in its capacity as Delaware Trustee under the Trust
Agreement) relying as to matters of Delaware law upon this opinion letter in
connection with the matters set forth in this opinion letter. Except as stated
above, without our prior written consent, this opinion letter may not be
VI-4
furnished or quoted to, or relied upon by, any other Person or relied upon for
any other purpose.
Very truly yours,
VI-5