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EXHIBIT 1
FLORIDA POWER CORPORATION
First Mortgage Bonds
6.650% Series due 2011
UNDERWRITING AGREEMENT
July 10, 2001
To the Representative named in Schedule I hereto
of the Underwriters named in Schedule II hereto
Dear Sirs:
The undersigned Florida Power Corporation (the "Company") hereby
confirms its agreement with each of the several Underwriters hereinafter named
as follows:
1. Underwriters and Representative. The term "Underwriters" as
used herein shall be deemed to mean the firm or corporation or the several firms
or corporations named in Schedule II hereto and any underwriter substituted as
provided in paragraph 6, and the term "Underwriter" shall be deemed to mean one
of such Underwriters. If the firm or firms listed in Schedule I hereto (the
"Representative") are the same as the firm or firms listed in Schedule II
hereto, then the terms "Underwriters" and "Representative," as used herein,
shall each be deemed to refer to such firm or firms. The Representative
represents that it has been authorized by the Underwriters to execute this
Agreement on their behalf and to act for them in the manner herein provided. All
obligations of the Underwriters hereunder are several and not joint. If more
than one firm is named in Schedule I hereto, any action under or in respect of
this Agreement may be taken by such firms jointly as the Representative or by
one of the firms acting on behalf of the Representative, and such action will be
binding upon all the Underwriters.
2. Description of Securities. The Company proposes to issue and
sell its First Mortgage Bonds of the designation, with the terms and in the
amount specified in Schedule I hereto (the "Securities"), under its Indenture,
dated as of January 1, 1944, with First Chicago Trust Company of New York, as
successor Trustee, as supplemented by the Seventh, Eighth, Sixteenth,
Twenty-ninth and Thirty-eighth supplemental indentures and as it will be further
supplemented by the Thirty-ninth Supplemental Indenture relating to the
Securities (the "Supplemental Indenture"), in substantially the form heretofore
delivered to the Representative, said Indenture as supplemented by the Seventh,
Eighth, Sixteenth, Twenty-ninth and Thirty-eighth supplemental indentures and to
be supplemented by the Supplemental Indenture being hereinafter referred to as
the "Mortgage."
3. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
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(a) The Company has filed with the Securities and
Exchange Commission (the "Commission") a Registration Statement on Form
S-3 (No. 333-63204) (the "New Registration Statement"), which also
constitutes Post-Effective Amendment No. 1 to three other Registration
Statements on Form S-3, each as set forth on Schedule I (collectively,
the "Post-Effective Amendments" and together with the New Registration
Statement, the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"), for the registration of up to
an aggregate of $1,000,000,000 principal amount of the Company's First
Mortgage Bonds and Debt Securities (collectively, the "Registered
Securities") in unallocated amounts, as each is defined in the
Registration Statement. The Registration Statement has been declared
effective by the Commission, and the Mortgage has been qualified under
the Trust Indenture Act of 1939, as amended (the "1939 Act"). As of the
date hereof, the Company has not sold any Registered Securities. The
term "Registration Statement" shall be deemed to include all amendments
to the date hereof and all documents incorporated by reference therein
(the "Incorporated Documents"). The prospectus included in the
Registration Statement, as it is to be supplemented by a prospectus
supplement, dated on or about the date hereof, substantially in the
form delivered to the Representative prior to the execution hereof,
relating to the Securities (the "Prospectus Supplement") and all prior
amendments or supplements thereto (other than amendments or supplements
relating to securities of the Company other than the Securities),
including the Incorporated Documents, is hereinafter referred to as the
"Prospectus." Any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement or the
Prospectus shall be deemed to refer to and include the filing of any
document under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), deemed to be incorporated therein after the date
hereof and prior to the termination of the offering of the Securities
by the Underwriters; and any references herein to the terms
"Registration Statement" or "Prospectus" at a date after the filing of
the Prospectus Supplement shall be deemed to refer to the Registration
Statement or the Prospectus, as the case may be, as each may be amended
or supplemented prior to such date.
(b) Prior to the termination of the offering of the
Securities, the Company will not file any amendment to the Registration
Statement or supplement to the Prospectus which shall not have
previously been furnished to the Representative or of which the
Representative shall not previously have been advised or to which the
Representative shall reasonably object in writing and which has not
been approved by the Underwriter(s) or their counsel acting on behalf
of the Underwriters.
(c) The Registration Statement, at the time and date it
was declared effective by the Commission, complied, and the
Registration Statement, the Prospectus and the Mortgage, at the date
the Prospectus is filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act ("Rule 424")
and at the Closing Date, will comply, in all material respects, with
the applicable provisions of the Securities Act and the 1939 Act and
the applicable rules and regulations of the Commission thereunder; the
Registration Statement, at the time and date it was declared effective
by the Commission, did not contain an untrue statement of a material
fact or
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omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and the
Prospectus, at the date it is filed with, or transmitted for filing to,
the Commission pursuant to Rule 424 and at the Closing Date, will not
contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the foregoing representations and warranties in
this subparagraph (c) shall not apply to statements or omissions made
in reliance upon and in conformity with information furnished herein or
in writing to the Company by the Representative or by or on behalf of
any Underwriter through the Representative expressly for use in the
Prospectus or to any statements in or omissions from the Statement of
Eligibility (Form T-1) of the Trustee. The Incorporated Documents, when
they were filed with the Commission, complied in all material respects
with the applicable requirements of the Exchange Act and the rules and
regulations of the Commission thereunder, and any documents so filed
and incorporated by reference subsequent to the date hereof and prior
to the termination of the offering of the Securities by the
Underwriters will, when they are filed with the Commission, comply in
all material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder; and, when read
together with the Registration Statement and the Prospectus, none of
such documents included or includes or will include any untrue
statement of a material fact or omitted or omits or will omit to state
any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
(d) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Florida; has corporate power and authority to own, lease and operate
its properties and to conduct its business as contemplated under this
Agreement and the other agreements to which it is a party; and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify would not
have a material adverse effect on the condition, financial or
otherwise, earnings, property, business affairs or business prospects
of the Company and its subsidiaries considered as a whole.
(e) The historical financial statements incorporated by
reference in the Registration Statement present fairly the financial
condition and operations of the Company 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 that the quarterly financial statements incorporated
by reference from any Quarterly Reports on Form 10-Q contain condensed
footnotes prepared in accordance with applicable Exchange Act rules and
regulations; and any accounting firms that have audited any of the
financial statements are independent public or independent certified
public accountants as required by the Securities Act or the Exchange
Act and the rules and regulations of the Commission thereunder.
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(f) Except as reflected in, or contemplated by, the
Registration Statement and the Prospectus, since the respective dates
as of which information is given in the Registration Statement and
Prospectus, and prior to the Closing Date, there has not been any
material adverse change in the condition, financial or otherwise,
earnings, property, business affairs or business prospects of the
Company and its subsidiaries considered as a whole; and since such
dates and prior to the Closing Date, there has not been any material
transaction entered into by the Company other than transactions
contemplated by the Registration Statement and Prospectus or
transactions arising in the ordinary course of business. The Company
has no contingent obligation that is not disclosed in the Registration
Statement and Prospectus that could likely result in a material adverse
change in the condition, financial or otherwise, earnings, property,
business affairs or business prospects of the Company and its
subsidiaries considered as a whole.
(g) The Company has full power and authority to execute,
deliver and perform its obligations under this Agreement. The execution
and delivery of this Agreement, the consummation of the transactions
herein contemplated and the fulfillment of the terms hereof on the part
of the Company to be fulfilled have been duly authorized by all
necessary corporate action of the Company in accordance with the
provisions of its articles of incorporation, as amended (the
"Charter"), by-laws and applicable law; and the Securities, when issued
and delivered as provided herein, will constitute legal, valid and
binding obligations of the Company in accordance with their terms
subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or similar laws affecting mortgagees'
and other creditors' rights generally and (ii) general principles of
equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity and except for the effect on
enforceability of federal or state law limiting, delaying or
prohibiting the making of payments outside the United States; provided,
however, that certain remedies, waivers and other provisions of the
Securities may not be enforceable, but such unenforceability will not
render the Securities invalid as a whole or affect the judicial
enforcement of (i) the obligation of the Company to repay the
principal, together with the interest thereon as provided in the
Securities or (ii) the right of the Trustee to exercise its right to
foreclose under the Mortgage.
(h) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will not result in
a breach of any of the terms or provisions of, or constitute a default
under, the Charter, the Company's by-laws, applicable law or any
indenture, mortgage, deed of trust or other agreement or instrument to
which the Company or any of its subsidiaries is now a party or any
judgment, order, writ or decree of any government or governmental
authority or agency or court having jurisdiction over the Company or
any of its subsidiaries or any of their assets, properties or
operations.
(i) The summaries of the terms of the Securities
contained in the Registration Statement and Prospectus fairly describe
the provisions thereof required to be described by the registration
statement form.
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(j) The Company does not have any significant
subsidiaries as defined in Rule 1-02 of Regulation S-X promulgated
under the Securities Act.
(k) The Mortgage (A) has been duly authorized, executed
and delivered by the Company, and, assuming due authorization,
execution and delivery of the Supplemental Indenture by the Trustee,
constitutes a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject
to (i) applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or similar laws affecting creditors' rights
generally and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding at law or in equity
and except for the effect on enforceability of federal or state law
limiting, delaying or prohibiting the making of payments outside the
United States); and (B) conforms in all material respects to the
description thereof in the Prospectus.
(l) Neither the Company nor any of its subsidiaries is an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended (the "1940 Act").
(m) Except as described in or contemplated by the
Prospectus, there are no pending actions, suits or proceedings
(regulatory or otherwise) against or affecting the Company or any of
its subsidiaries or properties that are likely in the aggregate to
result in any material adverse change in the condition, financial or
otherwise, earnings, property, business affairs or business prospects
of the Company and its subsidiaries considered as a whole, or that are
likely in the aggregate to materially and adversely affect the
Mortgage, the Securities or the consummation of this Agreement or the
transactions contemplated herein or therein.
(n) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder in connection
with the offering, issuance or sale of the Securities hereunder or the
consummation of the transactions herein contemplated or for the due
execution, delivery or performance of the Indenture by the Company,
except such as have already been made or obtained or as may be required
under the Securities Act or state securities laws and except for the
qualification of the Indenture under the 1939 Act.
4. Purchase and Sale. On the basis of the representations,
warranties and covenants herein contained, but subject to the terms and
conditions herein set forth, the Company agrees to sell to each of the
Underwriters, severally and not jointly, and each such Underwriter agrees,
severally and not jointly, to purchase from the Company, the respective
principal amount of Securities set forth opposite the name of such Underwriter
in Schedule II hereto at the purchase price set forth in Schedule I hereto.
5. Reoffering by Underwriters. The Underwriters agree to make
promptly a bona fide public offering of the Securities to the public for sale as
set forth in the Prospectus, subject, however, to the terms and conditions of
this Agreement.
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6. Time and Place of Closing; Default of Underwriters.
(a) Payment for the Securities shall be made at the
place, time and date specified in Schedule I hereto against delivery of
the Securities at the office of First Chicago Trust Company of New
York, 14 Wall Street, New York, New York 10005, or such other place,
time and date as the Representative and the Company may agree. The hour
and date of such delivery and payment are herein called the "Closing
Date." Payment for the Securities shall be by wire transfer of
immediately available funds against delivery to The Depository Trust
Company or to First Chicago Trust Company of New York, as custodian for
The Depository Trust Company, in fully registered global form
registered in the name of CEDE & Co., for the respective accounts
specified by the Representative not later than the close of business on
the business day prior to the Closing Date or such other date and time
not later than the Closing Date as agreed by The Depository Trust
Company or First Chicago Trust Company of New York. For the purpose of
expediting the checking of the certificates by the Representative, the
Company agrees to make the Securities available to the Representative
not later than 10:00 A.M. New York time, on the last full business day
prior to the Closing Date at said office of First Chicago Trust Company
of New York.
(b) If one or more of the Underwriters shall, for any
reason permitted hereunder, cancel its obligation to purchase hereunder
and to take up and pay for the principal amount of the Securities to be
purchased by such one or more Underwriters, the Company shall
immediately notify the Representative, and the remaining Underwriters
shall have the right, within 24 hours of receipt of such notice, either
to take up and pay for (in such proportion as may be agreed upon among
them) or to substitute another Underwriter or Underwriters,
satisfactory to the Company, to take up and pay for the principal
amount of the Securities that such one or more Underwriters did not
purchase. If one or more Underwriters shall, for any reason other than
a reason permitted hereunder, fail to take up and pay for the principal
amount of the Securities to be purchased by such one or more
Underwriters, the Company shall immediately notify the Representative,
and the remaining Underwriters shall be obligated to take up and pay
for (in addition to the respective principal amount of the Securities
set forth opposite their respective names in Schedule II hereto) the
principal amount of the Securities that such defaulting Underwriter or
Underwriters failed to take up and pay for, up to a principal amount
thereof equal to, in the case of each such remaining Underwriter, 10%
of the principal amount of the 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 take up and pay for (in such proportion as may be
agreed upon among them), or to substitute another Underwriter or
Underwriters, satisfactory to the Company, to take up and pay for the
remaining principal amount of the Securities that the defaulting
Underwriter or Underwriters agreed but failed to purchase. If any
unpurchased Securities still remain, then the Company or the
Representative shall be entitled to an additional period of 24 hours
within which to procure another party or
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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 Rules of Fair Practice)
and satisfactory to the Company, to purchase or agree to purchase such
unpurchased Securities on the terms herein set forth. In any such case,
either the Representative or the Company shall have the right to
postpone the Closing Date for a period not to exceed three full
business days from the date agreed upon in accordance with this
paragraph 6, in order that the necessary changes in the Registration
Statement and Prospectus and any other documents and arrangements may
be effected. If (i) neither the non-defaulting Underwriters nor the
Company has arranged for the purchase of such unpurchased Securities by
another party or parties as above provided and (ii) the Company and the
non-defaulting Underwriters have not mutually agreed to offer and sell
the Securities other than the unpurchased Securities, then this
Agreement shall terminate without any liability on the part of the
Company or any Underwriter (other than an Underwriter that shall have
failed or refused, in accordance with the terms hereof, to purchase and
pay for the principal amount of the Securities that such Underwriter
has agreed to purchase as provided in paragraph 4 hereof), except as
otherwise provided in paragraph 7 and paragraph 8 hereof.
7. Covenants of the Company. The Company covenants with each
Underwriter that:
(a) As soon as reasonably possible after the execution
and delivery of this Agreement, the Company will file the Prospectus
with the Commission pursuant to Rule 424 setting forth, among other
things, the necessary information with respect to the terms of offering
of the Securities. The Company will promptly deliver to the
Representative and to counsel for the Underwriters, to the extent not
previously delivered, one fully executed copy or one conformed copy,
certified by an officer of the Company, of the Registration Statement,
as originally filed, and of all amendments thereto, heretofore or
hereafter made (other than those relating solely to securities other
than the Securities), including any post-effective amendment (in each
case including all exhibits filed therewith and all documents
incorporated therein not previously furnished to the Representative),
including signed copies of each consent and certificate included
therein or filed as an exhibit thereto, and will deliver to the
Representative for distribution to the Underwriters as many conformed
copies of the foregoing (excluding the exhibits, but including all
documents incorporated therein) as the Representative may reasonably
request. The Company will also send to the Underwriters as soon as
practicable after the date of this Agreement and thereafter from time
to time as many copies of the Prospectus as the Representative may
reasonably request for the purposes required by the Securities Act.
(b) During such period (not exceeding nine months) after
the commencement of the offering of the Securities as the Underwriters
may be required by law to deliver a Prospectus, if any event relating
to or affecting the Company, or of which the Company shall be advised
in writing by the Representative shall occur, which in the opinion of
the
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Company or the Representative 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, or if it is necessary to amend the Prospectus to comply with
the Securities Act, the Company will forthwith at its expense prepare
and furnish to the Underwriters and dealers named by the Representative
a reasonable number of copies of a supplement or supplements or an
amendment or amendments to the Prospectus that will supplement or amend
the Prospectus so that as supplemented or amended it will comply with
the Securities Act and will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading. In case any
Underwriter is required to deliver a Prospectus after the expiration of
nine months after the commencement of the offering of the Securities,
the Company, upon the request of the Representative, will furnish to
the Representative, 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(a) of the
Securities Act.
(c) The Company will make generally available to its
security holders, as soon as reasonably practicable, but in any event
not later than 16 months after the end of the fiscal quarter in which
the filing of the Prospectus pursuant to Rule 424 occurs, an earning
statement (in form complying with the provisions of Section 11(a) of
the Securities Act, which need not be certified by independent public
accountants) covering a period of twelve months beginning not later
than the first day of the Company's fiscal quarter next following the
filing of the Prospectus pursuant to Rule 424.
(d) The Company will use its best efforts promptly to do
and perform all things to be done and performed by it hereunder prior
to the Closing Date and to satisfy all conditions precedent to the
delivery by it of the Securities.
(e) As soon as reasonably possible after the Closing
Date, the Company will cause the Supplemental Indenture to be recorded
in all recording offices in the State of Florida in which the property
intended to be subject to the lien of the Mortgage is located.
Notwithstanding the first sentence of this subparagraph 7(e), the
Company will, prior to the Closing Date, cause the Supplemental
Indenture to be recorded in the recording offices listed on Schedule
III hereto and filed in the Office of the Secretary of the State of
Florida.
(f) The Company will advise the Representative, or the
Representative's counsel, promptly of the filing of the Prospectus
pursuant to Rule 424 and of any amendment or supplement to the
Prospectus or Registration Statement or of official notice of
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 its best efforts to obtain the
prompt removal thereof.
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(g) The Company will use its best efforts to qualify the
Securities for offer and sale under the Blue Sky or legal investment
laws of such jurisdictions as the Representative may designate, and
will file and make in each year such statements or reports as are or
may be reasonably required by the laws of such jurisdictions; provided,
however, that the Company shall not be required to qualify as a foreign
corporation or dealer in securities, or to file any general consents to
service of process, under the laws of any jurisdiction.
8. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement and the printing of
this Agreement, (ii) the delivery of the Securities to the Underwriters, (iii)
the fees and disbursements of the Company's counsel and accountants, (iv) the
expenses in connection with the qualification of the Securities under securities
laws in accordance with the provisions of paragraph 7(g), including filing fees
and the fees and disbursements of counsel for the Underwriters in connection
therewith, and in connection with the preparation of the Blue Sky Survey and any
Legality Memorandum, such fees and disbursements not to exceed $7,500, (v) the
printing and delivery to the Underwriters of copies of the Registration
Statement and all amendments thereto, of the preliminary prospectuses, and of
the Prospectus and any amendments or supplements thereto, (vi) the printing and
delivery to the Underwriters of copies of the Blue Sky Survey and any Legality
Memorandum, and (vii) the preparation, execution, filing and recording by the
Company of the Supplemental Indenture (such filing and recordation to be
promptly made after execution and delivery of the Supplemental Indenture to the
Trustee under the Mortgage in the counties in which the mortgaged property of
the Company is located); and the Company will pay all taxes, if any (but not
including any transfer taxes), on the issue of the Securities and the filing and
recordation of the Supplemental Indenture. The fees and disbursements of
Underwriters' counsel shall be paid by the Underwriters (subject, however, to
the provisions of this paragraph 8 requiring payment by the Company of fees and
expenses not to exceed $7,500); provided, however, that if this Agreement is
terminated in accordance with the provisions of paragraph 9, 10 or 12, the
Company shall reimburse the Representative for the account of the Underwriters
for the fees and disbursements of Underwriters' counsel. The Company shall not
be required to pay any amount for any expenses of the Representative or of any
other of the Underwriters except as provided in paragraph 7 and in this
paragraph 8. The Company shall not in any event be liable to any of the
Underwriters for damages on account of the loss of anticipated profit.
9. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase and pay for the Securities shall be
subject to the accuracy of the representations and warranties on the part of the
Company as of the date hereof and the Closing Date, to the performance by the
Company of its obligations to be performed hereunder prior to the Closing Date,
and to the following further conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date and no
proceedings for that purpose shall be pending before, or, to the
Company's knowledge, threatened by, the Commission on the Closing Date;
and the Representative shall have received, prior to payment for the
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Securities, a certificate dated the Closing Date and signed by the
Chairman, President or a Vice President of the Company to the effect
that no such stop order is in effect and that no proceedings for such
purpose are pending before or, to the knowledge of the Company,
threatened by the Commission.
(b) At the time of execution of this Agreement, or such
later date as shall have been consented to by the Representative, there
shall have been issued, and on the Closing Date there shall be in full
force and effect, an order of the Florida Public Service Commission
authorizing the issuance and sale of the Securities, which shall not
contain any provision unacceptable to the Representative by reason of
its being materially adverse to the Company (it being understood that
no such order in effect on the date of this Agreement and heretofore
furnished to the Representative or counsel for the Underwriters
contains any such unacceptable provision).
(c) At the Closing Date, the Representative shall receive
favorable opinions from: (1) Hunton & Williams, counsel to the Company,
which opinion shall be satisfactory in form and substance to counsel
for the Underwriters, and (2) Pillsbury Winthrop LLP, counsel for the
Underwriters, in each of which opinions (except as to subdivision (vi)
(as to documents incorporated by reference, at the time they were filed
with the Commission) as to which Pillsbury Winthrop LLP need express no
opinion) said counsel may rely as to all matters of Florida law upon
the opinion of R. Alexander Glenn, Associate General Counsel of the
Company, to the effect that:
(i) The Mortgage has been duly and validly
authorized by all necessary corporate action (with this
opinion required in the Hunton & Williams and Pillsbury
Winthrop LLP opinions only as to the original Indenture dated
as of January 1, 1944 and the Supplemental Indentures
subsequent to, but not including, the Thirty-eighth
Supplemental Indenture), has been duly and validly executed
and delivered by the Company (with this opinion required in
the Hunton & Williams and Pillsbury Winthrop LLP opinions only
as to the original Indenture dated as of January 1, 1944 and
the Supplemental Indentures subsequent to, but not including,
the Thirty-eighth Supplemental Indenture), and is a valid and
binding mortgage of the Company enforceable in accordance with
its terms, except as limited by bankruptcy, insolvency or
other laws affecting mortgagees' and other creditors' rights
and general equitable principles and any implied covenant of
good faith and fair dealing (with this opinion required in the
Hunton & Williams and Pillsbury Winthrop LLP opinions only as
to the original Indenture dated as of January 1, 1944 and the
Supplemental Indentures subsequent to, but not including, the
Thirty-eighth Supplemental Indenture); provided, however, that
certain remedies, waivers and other provisions of the Mortgage
may not be enforceable, but such unenforceability will not
render the Mortgage invalid as a whole or affect the judicial
enforcement of (i) the obligation of the Company to repay the
principal, together with the interest thereon as provided in
the Securities or (ii) the right of the Trustee to exercise
its right to foreclose under the Mortgage;
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(ii) The Mortgage has been duly qualified under
the 1939 Act;
(iii) Assuming authentication of the Securities by
the Trustee in accordance with the Mortgage and delivery of
the Securities to and payment for the Securities by the
Underwriters, as provided in this Agreement, the Securities
have been duly and validly authorized, executed and delivered
and are legal, valid and binding obligations of the Company
enforceable in accordance with their terms, except as limited
by bankruptcy, insolvency or other laws affecting mortgagees'
and other creditors' rights and general equitable principles,
are entitled to the benefits of the security afforded by the
Mortgage, and are secured equally and ratably with all other
bonds outstanding under the Mortgage except insofar as any
sinking or other fund may afford additional security for the
bonds of any particular series;
(iv) The statements made in the Prospectus under
the caption "Description of First Mortgage Bonds" and in the
Prospectus Supplement under the caption "Certain Terms of the
Bonds," insofar as they purport to constitute summaries of the
documents referred to therein, are correct in all material
respects;
(v) This Agreement has been duly and validly
authorized, executed and delivered by the Company;
(vi) The Registration Statement, at the time and
date it was declared effective by the Commission, and the
Prospectus, at the time it was filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 (except as to
the financial statements and other financial and statistical
data constituting a part thereof or incorporated by reference
therein, upon which such opinions need not pass), complied as
to form in all material respects with the requirements of the
Securities Act and the 1939 Act and the applicable
instructions, rules and regulations of the Commission
thereunder; the documents or portions thereof filed with the
Commission pursuant to the Exchange Act and deemed to be
incorporated by reference in the Registration Statement and
the Prospectus pursuant to Item 12 of Form S-3 (except as to
financial statements and other financial and statistical data
constituting a part thereof or incorporated by reference
therein, upon which such opinions need not pass), at the time
they were filed with the Commission, complied as to form in
all material respects with the requirements of the Exchange
Act and the applicable instructions, rules and regulations of
the Commission thereunder; the Registration Statement has
become effective under the Securities Act and, to the best of
the knowledge of said counsel, no stop order suspending the
effectiveness of the Registration Statement
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has been issued and not withdrawn, and no proceedings for a
stop order with respect thereto are threatened or pending
under Section 8 of the Securities Act;
(vii) Nothing has come to the attention of said
counsel that would lead them to believe that the Registration
Statement, at the time and date it was declared effective by
the Commission, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus, at the time it was filed
with, or transmitted for filing to, the Commission pursuant to
Rule 424 or at the Closing Date, included or includes an
untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading (except as to financial
statements and other financial and statistical data
constituting a part of the Registration Statement or the
Prospectus or incorporated by reference therein, upon which
such opinions need not pass);
(d) At the Closing Date, the Representative shall receive
from R. Alexander Glenn, Associate General Counsel of the Company, a
favorable opinion in form and substance satisfactory to counsel for the
Underwriters, to the same effect with respect to the matters enumerated
in subdivisions (i) through (v) and subdivision (vii) of subparagraph
(c) of this paragraph 9 as the opinions required by said subparagraph
(c), and to the further effect that:
(i) The Company is a validly organized and
existing corporation under the laws of the State of Florida;
(ii) The Company is duly authorized by its
Charter to conduct the business that it is now conducting as
set forth in the Prospectus;
(iii) The Company is an electrical utility engaged
in the business of generating, transmitting, distributing and
selling electric power to the general public in the State of
Florida;
(iv) The Company has valid and subsisting
franchises, licenses and permits adequate for the conduct of
its business, except where the failure to hold such
franchises, licenses and permits would not have a material
adverse effect on the condition, financial or otherwise,
earnings, property, business affairs or business prospects of
the Company and its subsidiaries considered as a whole;
(v) The Company has good and marketable title,
with minor exceptions, restrictions and reservations in
conveyances, and defects that are of the nature ordinarily
found in properties of similar character and magnitude and
that, in his opinion, will not in any substantial way impair
the security afforded by the Mortgage, to all the properties
described in the granting clauses of the Mortgage and upon
which the Mortgage purports to create a lien. The description
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in the Mortgage of the above-mentioned properties is legally
sufficient to constitute the Mortgage a lien upon said
properties, including without limitation properties hereafter
acquired by the Company (other than those expressly excepted
and reserved therefrom). Said properties constitute
substantially all the permanent physical properties and
franchises (other than those expressly excepted and reserved
therefrom) of the Company and are held by the Company free and
clear of all liens and encumbrances except the lien of the
Mortgage and excepted encumbrances, as defined in the
Mortgage. The properties of the Company are subject to liens
for current taxes, which it is the practice of the Company to
pay regularly as and when due. The Company has easements for
rights-of-way adequate for the operations and maintenance of
its transmission and distribution lines that are not
constructed upon public highways. The Company has followed the
practice generally of acquiring certain rights-of-way and
easements and certain small parcels of fee property
appurtenant thereto and for use in conjunction therewith, and
certain other properties of small or inconsequential value,
without an examination of title and, as to the title to lands
affected by said rights-of-way and easements, of not examining
the title of the lessor or grantor whenever the lands affected
by such rights-of-way and easements are not of such
substantial value as in the opinion of the Company to justify
the expense attendant upon examination of titles in connection
therewith. In the opinion of said counsel, such practice of
the Company is consistent with sound economic practice and
with the method followed by other companies engaged in the
same business and is reasonably adequate to assure the Company
of good and marketable title to all such property acquired by
it. It is the opinion of said counsel that any such conditions
or defects as may be covered by the above recited exceptions
are not substantial and would not materially interfere with
the Company's use of such properties or with its business
operations. The Company has the right of eminent domain in the
State of Florida under which it may, if necessary, perfect or
obtain title to privately owned land or acquire easements or
rights-of-way required for use or used by the Company in its
public utility operations;
(vi) The Mortgage has been recorded and filed in
such manner and in such places as may be required by law in
order fully to preserve and protect, in all material respects,
the security of the bondholders and all rights of the Trustee
thereunder; and the Supplemental Indenture relating to the
Securities is in proper form for filing for record both as a
real estate mortgage and as a security interest in all
counties in the State of Florida in which any of the property
(except as any therein or in the Mortgage are expressly
excepted) described therein or in the Mortgage as subject to
the lien of the Mortgage is located and, upon such recording,
the Supplemental Indenture will constitute adequate record
notice to perfect the lien of the Mortgage, and preserve and
protect, in all material respects, the security of the
bondholders and all rights of the Trustee, as to all mortgaged
and pledged property acquired by the Company subsequent to the
recording of the Thirty-seventh Supplemental Indenture and
prior to the recording of the Supplemental Indenture;
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(vii) The Mortgage constitutes a valid, direct and
first mortgage lien of record upon all franchises and
properties now owned by the Company (other than those
expressly excepted therefrom and other than those franchises
and properties which are not, individually or in the
aggregate, material to the Company or the security afforded by
the Mortgage) situated in the State of Florida, as described
or referred to in the granting clauses of the Mortgage,
subject to the exceptions as to bankruptcy, insolvency and
other laws stated in subdivision (i) of subparagraph (c)
above;
(viii) The issuance and sale of the Securities have
been duly authorized by all necessary corporate action on the
part of the Company;
(ix) An order has been entered by the Florida
Public Service Commission authorizing the issuance and sale of
the Securities, and to the best of the knowledge of said
counsel, said order is still in force and effect; and no
further filing with, approval, authorization, consent or other
order of any public board or body (except such as have been
obtained under the Securities Act and as may be required under
the state securities or Blue Sky laws of any jurisdiction) is
legally required for the consummation of the transactions
contemplated in this Agreement;
(x) Except as described in or contemplated by
the Prospectus, there are no pending actions, suits or
proceedings (regulatory or otherwise) against the Company or
any of its subsidiaries or properties that are likely, in the
aggregate, to result in any material adverse change in the
condition, financial or otherwise, earnings, property,
business affairs of business prospects of the Company and its
subsidiaries considered as a whole or that are likely, in the
aggregate, to materially and adversely affect the Mortgage,
the Securities or the consummation of this Agreement, or the
transactions contemplated herein or therein; and
(xi) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will not
(i) result in a breach of any of the terms or provisions of,
or constitute a default under, the Charter or the Company's
by-laws or (ii) result in a material breach of any terms or
provisions of, or constitute a default under, any applicable
law, indenture, mortgage, deed of trust or other agreement or
instrument to which the Company is now a party or any
judgment, order, writ or decree of any government or
governmental authority or agency or court having jurisdiction
over the Company or any of its subsidiaries or any of their
assets, properties or operations.
(f) At the Closing Date, the Representative shall have
received from each of KPMG LLP and Deloitte & Touche LLP a letter,
dated the Closing Date, confirming that they are independent certified
public accountants within the meaning of the Securities Act and the
Exchange Act, and of the applicable published rules and regulations
thereunder, and stating in effect: (i) with respect to the letter from
KPMG LLP, that in their opinion,
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the audited financial statements incorporated by reference in the
Registration Statement comply as to form in all material respects with
the applicable accounting requirements of the Securities Act or the
Exchange Act, as applicable, and of the published rules and regulations
thereunder; (ii) with respect to the letter from Deloitte & Touche LLP,
that based on the performance of the procedures specified by the
American Institute of Certified Public Accountants for review of
interim financial information as described in Statement on Auditing
Standards ("SAS") No. 71, Interim Financial Information, on the
unaudited financial statements incorporated by reference in the
Registration Statement, inquiries of officials of the Company
responsible for financial and accounting matters and reading the
minutes of meetings of the Board of Directors, of the Executive
Committee of the Board of Directors and of the shareholders, nothing
came to their attention that caused them to believe that (A) the
unaudited financial statements incorporated by reference in the
Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the Securities
Act or the Exchange Act, as applicable, and the published rules and
regulations thereunder or any material modifications should be made for
them to be in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the most
recent audited financial statements incorporated by reference in the
Registration Statement; or (B) at the date of the latest available
interim balance sheet read by them and at a subsequent date not more
than three business days prior to the date of the letter, there was any
change in the capital stock or long-term debt of the Company, or at the
date of the latest available interim balance sheet read by them, there
was any decrease in net assets as compared with the amount shown on the
most recent balance sheet incorporated by reference in the Registration
Statement, except for changes or decreases that the Registration
Statement discloses have occurred or may occur, for declarations of
dividends or for changes or decreases that are described in the letter;
and (iii) from both KPMG LLP and Deloitte & Touche LLP, covering such
other matters as the Representative shall reasonably request.
(g) At the Closing Date, the Representative shall receive
a certificate of the Chairman, President or a Vice President of the
Company, dated the Closing Date, to the effect that the representations
and warranties of the Company in this Agreement are true and correct as
of the Closing Date.
(h) All legal proceedings taken in connection with the
sale and delivery of the Securities shall have been satisfactory in
form and substance to counsel for the Underwriters, and the Company, as
of the Closing Date, shall be in compliance with any governing order of
the Florida Public Service Commission, except where the failure to
comply with such order would not be material to the offering or
validity of the Securities.
In case any of the conditions specified above in this paragraph 9 shall
not have been fulfilled or waived by 2:00 P.M. on the Closing Date, this
Agreement may be terminated by the Representative by mailing or delivering
written notice thereof to the Company. Any such termination shall be without
liability of any party to any other party except as otherwise provided in
paragraphs 7 and 8.
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10. Conditions of the Company's Obligations. The obligations of
the Company to deliver the Securities 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, and no
proceedings for that purpose shall be pending before or threatened by
the Commission on the Closing Date.
(b) Prior to 12:00 Noon, New York time, on the day
following the date of this Agreement, or such later date as shall have
been consented to by the Company, there shall have been issued and on
the Closing Date there shall be in full force and effect an order of
the Florida Public Service Commission authorizing the issuance and sale
by the Company of the Securities, which shall not contain any provision
unacceptable to the Company by reason of its being materially adverse
to the Company (it being understood that the order in effect as of the
date of this Agreement contains any such unacceptable provision).
In case any of the conditions specified in this paragraph 10 shall not
have been fulfilled at the Closing Date, this Agreement may be terminated by the
Company by mailing or delivering written notice thereof to the Representative.
Any such termination shall be without liability of any party to any other party
except as otherwise provided in paragraphs 7 and 8.
11. Indemnification.
(a) The Company agrees to indemnify and hold harmless
each Underwriter, each officer and director of each Underwriter and
each person who controls any Underwriter within the meaning of Section
15 of the Securities Act 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 under any other statute or common
law and to reimburse each such Underwriter, each such officer and
director, and each such controlling person for any legal or other
expenses (including to the extent hereinafter provided, reasonable
counsel fees) incurred by them, when and as incurred, in connection
with investigating any such losses, claims, damages or liabilities or
in connection with defending any actions, insofar as such losses,
claims, damages, liabilities, expenses or actions arise out of or are
based upon any untrue statement, or alleged untrue statement, of a
material fact contained in the Registration Statement, any preliminary
prospectus or the Prospectus, or in the Registration Statement or
Prospectus as amended or supplemented (if any amendments or supplements
thereto shall have been furnished), or the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that the indemnity agreement contained in this paragraph 11
shall not apply to any such losses, claims, damages, liabilities,
expenses or actions arising out of or based upon any such untrue
statement or alleged untrue statement, or any such omission or alleged
omission, if such statement or omission was made in reliance upon and
in conformity with information furnished herein or in writing to the
Company by any Underwriter through the Representative expressly for use
in the Registration Statement, any
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preliminary prospectus or the Prospectus, or any amendment or
supplement to any thereof, or arising out of, or based upon, statements
in or omissions from that part of the Registration Statement that shall
constitute the Statement of Eligibility under the 1939 Act (Form T-1)
of the Trustee, and provided, further, that the indemnity agreement
contained in this paragraph 11 shall not inure to the benefit of any
Underwriter (or of any person controlling such Underwriter) on account
of any such losses, claims, damages, liabilities, expenses or actions
arising from the sale of the Securities to any person if a copy of the
Prospectus (excluding documents incorporated by reference therein)
shall not have been given or sent to such person by or on behalf of
such Underwriter with or prior to the written confirmation of the sale
involved, unless such Prospectus failed to correct the omission or
misstatement. The indemnity agreement of the Company contained in this
paragraph 11 and the representations and warranties of the Company
contained in paragraph 3 hereof shall remain operative and in full
force and effect regardless of any investigation made by or on behalf
of any Underwriter, and such officer or director or any such
controlling person and shall survive the delivery of the Securities.
The Underwriters agree to notify promptly the Company, and each other
Underwriter, of the commencement of any litigation or proceedings
against them or any of them, or any such officer or director or any
such controlling person, in connection with the sale of the Securities.
(b) Each Underwriter severally, and not jointly, agrees
to indemnify and hold harmless the Company, its officers and directors,
and each person who controls the Company within the meaning of Section
15 of the Securities Act, against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may
become subject under the Securities Act or under 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) incurred by them, when and as incurred, in connection
with investigating any such losses, claims, damages, or liabilities, or
in connection with defending any actions, insofar as such losses,
claims, damages, liabilities, expenses or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any preliminary
prospectus or the Prospectus as amended or supplemented (if any
amendments or supplements thereto shall have been furnished), or the
omission or alleged omission to state therein a material fact 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 herein or in writing to the
Company by such Underwriter or through the Representative on behalf of
such Underwriter expressly for use in the Registration Statement, any
preliminary prospectus or the Prospectus or any amendment or supplement
to any thereof. The indemnity agreement of all the respective
Underwriters contained in this paragraph 11 shall remain operative and
in full force and effect regardless of any investigation made by or on
behalf of the Company or any other Underwriter, or any such officer or
director or any such controlling person, and shall survive the delivery
of the Securities. The Company agrees promptly to notify the
Representative of the commencement of any litigation or
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proceedings against the Company or any of its officers or directors, or
any such controlling person, in connection with the sale of the
Securities.
(c) The Company and each of the Underwriters agree that,
upon the receipt of notice of the commencement of any action against
it, its officers or directors, or any person controlling it as
aforesaid, in respect of which indemnity may be sought on account of
any indemnity agreement contained herein, it will promptly give written
notice of the commencement thereof to the party or parties against whom
indemnity shall be sought hereunder. The Company and each of the
Underwriters agree that the notification required by the preceding
sentence shall be a material term of this Agreement. The omission so to
notify such indemnifying party or parties of any such action shall
relieve such indemnifying party or parties from any liability that it
or they may have to the indemnified party on account of any indemnity
agreement contained herein if such indemnifying party was materially
prejudiced by such omission, but shall not relieve such indemnifying
party or parties from any liability that it or they may have to the
indemnified party otherwise than on account of such indemnity
agreement. In case such notice of any such action shall be so given,
such indemnifying party shall be entitled to participate at its own
expense in the defense or, if it so elects, to assume (in conjunction
with any other indemnifying parties) the defense of such action, in
which event such defense shall be conducted by counsel chosen by such
indemnifying party (or parties) and satisfactory to the indemnified
party or parties who shall be defendant or defendants in such action,
and such defendant or defendants shall bear the fees and expenses of
any additional counsel retained by them; but if the indemnifying party
shall elect not to assume the defense of such action, such indemnifying
parties will reimburse such indemnified party or parties for the
reasonable fees and expenses of any counsel retained by them, as such
expenses are incurred; provided, however, if the defendants (including
any impleaded parties) in any such action include both the indemnified
party and the indemnifying party, and counsel for the indemnified party
shall have concluded, in its reasonable judgment, that there may be a
conflict of interest involved in the representation by such counsel of
both the indemnifying party and the indemnified party, the indemnified
party or parties shall have the right to select separate counsel,
satisfactory to the indemnifying party, to participate in the defense
of such action on behalf of such indemnified party or parties (it being
understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel representing the
indemnified parties who are parties to such action). Each of the
Company and the several Underwriters agrees that without the other
party's prior written consent, which consent shall not be unreasonably
withheld, it will not settle, compromise or consent to the entry of any
judgment in any claim in respect of which indemnification may be sought
under the indemnification provisions of this Agreement, unless such
settlement, compromise or consent (i) includes an unconditional release
of such other party from all liability arising out of such claim 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 party.
(d) If the indemnification provided for in subparagraphs
(a) or (b) above is for any reason unavailable to or insufficient to
hold harmless an indemnified party in respect
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of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate
amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion
as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Underwriters, on the other hand, from
the offering of the Securities pursuant to this Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative
fault of the Company, on the one hand, and of the Underwriters, on the
other hand, in connection with the statements or omissions that
resulted in such losses, liabilities, claims, damages or expenses, as
well as any other relevant equitable considerations. The relative
benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of
the Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by
the Underwriters, in each case as set forth on the cover of the
Prospectus, bear to the aggregate initial public offering price of the
Securities as set forth on such cover. The relative fault of the
Company, on the one hand, and the Underwriters, on the other hand,
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if
contribution pursuant to this paragraph (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to above in this
subparagraph (d). No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this subparagraph (d),
each person, if any, who controls an Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed
the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to
contribution as the Company. The Underwriters' respective obligations
to contribute pursuant to this subparagraph (d) are several in
proportion to the number of Securities set forth opposite their
respective names in Schedule II hereto and not joint.
(e) For purposes of this paragraph 11, it is understood
and agreed that the only information provided by the Underwriters
expressly for use in the Registration Statement and Prospectus were the
following parts of the Section titled "Underwriting": the second, third
and fourth sentences of the second paragraph, the third sentence of the
third paragraph, and all of the fifth paragraph.
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12. Termination Date of this Agreement. This Agreement may be
terminated by the Representative at any time prior to the Closing Date by
delivering written notice thereof to the Company, if on or after the date of
this Agreement but prior to such time (a) there shall have occurred any general
suspension of trading in securities on the New York Stock Exchange, or there
shall have been established by the New York Stock Exchange or by the Commission
or by any federal or state agency or by the decision of any court any limitation
on prices for such trading or any restrictions on the distribution of
securities, or (b) there shall have occurred any new outbreak of hostilities,
including, but not limited to, an escalation of hostilities that existed prior
to the date of this Agreement or any national or international calamity or
crisis, or any adverse change in the financial markets, the effect of which
outbreak, escalation, calamity or crisis, or adverse change on the financial
markets of the United States shall be such as to make it impracticable, in the
reasonable judgment of the Representative, for the Underwriters to enforce
contracts for the sale of the Securities, or (c) the Company shall have
sustained a substantial loss by fire, flood, accident or other calamity that
renders it impracticable, in the reasonable judgment of the Representative, to
consummate the sale of the Securities and the delivery of the Securities by the
several Underwriters at the initial public offering price, or (d) there shall
have been any downgrading or any notice of any intended or potential downgrading
in the rating accorded the Company's securities by any "nationally recognized
statistical rating organization" as that term is defined by the Commission for
the purposes of Securities Act Rule 436(g)(2), or any such organization shall
have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of the Securities, or any of the Company's
other outstanding debt, the effect of which in the reasonable judgment of the
Representative, makes it impracticable or inadvisable to consummate the sale of
the Securities and the delivery of the Securities by the several Underwriters at
the initial public offering price. This Agreement may also be terminated at any
time prior to the Closing Date if in the reasonable judgment of the
Representative the subject matter of any amendment or supplement to the
Registration Statement or Prospectus (other than an amendment or supplement
relating solely to the activity of any Underwriter or Underwriters) filed after
the execution of this Agreement shall have materially impaired the marketability
of the Securities. Any termination hereof pursuant to this paragraph 12 shall be
without liability of any party to any other party except as otherwise provided
in paragraphs 7 and 8.
13. Miscellaneous. The validity and interpretation of this
Agreement shall be governed by the laws of the State of New York. Unless
otherwise specified, time of day refers to New York City time. This Agreement
shall inure to the benefit of, and be binding upon, the Company, the several
Underwriters, and with respect to the provisions of paragraph 11, the officers
and directors and each controlling person referred to in paragraph 11, and their
respective successors. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. The term "successors" as used in this Agreement
shall not include any purchaser, as such purchaser, of any of the Securities
from any of the several Underwriters.
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14. Notices. All communications hereunder shall be in writing or
by telefax and, if to the Underwriters, shall be mailed, transmitted by any
standard form of telecommunication or delivered to the Representative at the
address set forth in Schedule I hereto and if to the Company, shall be mailed or
delivered to it at 410 South Wilmington Street, Raleigh, North Carolina 27601,
attention of Thomas R. Sullivan, Treasurer.
15. Counterparts. This Agreement may be simultaneously executed in
counterparts, each of which when so executed shall be deemed to be an original.
Such counterparts shall together constitute one and the same instrument.
16. Defined Terms. Unless otherwise defined herein, capitalized
terms used in this Underwriting Agreement shall have the meanings assigned to
them in the Registration Statement.
[The remainder of this page has been intentionally left blank.]
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company the enclosed duplicate hereof
whereupon it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
FLORIDA POWER CORPORATION
By: /s/ Peter M. Scott III
------------------------------
Authorized Representative
Accepted as of the date first
above written, as Underwriter
named in, and as the Representative
of the other Underwriters named in, Schedule II.
BANC OF AMERICA SECURITIES LLC
By: /s/ Lily Chang
----------------------------------------
Authorized Representative
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SCHEDULE I
Underwriting Agreement dated July 10, 2001
Registration Statement Nos.: 333-63204 and pre-effective amendment no. 1
thereto, with respect to the $380,000,000
aggregate principal amount of the Company's
First Mortgage Bonds and Debt Securities,
which also constitutes Post-Effective
Amendment No.1 to Registration Statement
Nos. 33-55273, 33-62210 and 333-29897, each
discussed in further detail below.
Post-Effective Amendment No. 1 to
Registration Statement No. 33-55273, with
respect to the $250,000,000 aggregate
principal amount of the Company's First
Mortgage Bonds and Debt Securities.
Post-Effective Amendment No. 1 to
Registration Statement No. 33-62210, with
respect to the $120,000,000 aggregate
principal amount of the Company's First
Mortgage Bonds and Debt Securities.
Post-Effective Amendment No. 1 to
Registration Statement No. 333-29897, with
respect to the $250,000,000 aggregate
principal amount of the Company's First
Mortgage Bonds and Debt Securities.
Representative and Addresse:
Banc of America Securities LLC
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28225
Attention: Brian Hungerford
Designation: First Mortgage Bonds, 6.650% Series due 2011
Principal Amount: $300,000,000
Supplemental Indenture: Thirty-ninth, dated as of July 1, 2001
Secured By: The lien of the Mortgage (as defined in
Section 2 hereof)
Date of Maturity: July 15, 2011
Interest Rate: 6.650% per annum, payable January 15 and
July 15 of each year, commencing January 15,
2002.
Purchase Price: 99.207% of the principal amount thereof,
plus accrued interest from July 18, 2001 to
the date of payment and delivery.
Public Offering Price: 99.857% of the principal amount thereof,
plus accrued interest from July 18, 2001 to
the date of payment and delivery.
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Redemption Terms: Optional--redeemable prior to maturity, in
whole or in part, at the option of the
Company at a make-whole redemption price (as
defined and described in further detail in
the prospectus supplement).
Special--redeemable prior to maturity, in
whole but not in part, upon the occurrence
of specific events, at the option of the
Company at a make-whole redemption price (as
defined and described in further detail in
the prospectus supplement).
Closing Date and Location: July 18, 2001
Hunton & Williams
One Hannover Square, 14th Floor
Raleigh, North Carolina 27601
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SCHEDULE II
UNDERWRITER PRINCIPAL AMOUNT
----------- ----------------
Banc of America Securities LLC $120,000,000
Banc One Capital Markets, Inc. $ 60,000,000
Salomon Smith Barney Inc. $ 60,000,000
SunTrust Equitable Securities Corporation $ 30,000,000
Wachovia Securities, Inc. $ 30,000,000
-----------
TOTAL $300,000,000
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SCHEDULE III
Pursuant to Section 7(e) hereof, the Company shall, prior to the
Closing Date, cause the Supplemental Indenture to be filed in the Office of the
Secretary of State of the State of Florida and recorded in the following County
recording offices in the State of Florida:
1) Citrus
2) Pinellas
3) Polk
4) Orange
5) Pasco
6) Volusia
7) Seminole
8) Osceola
9) Lake
10) Marion
11) Highlands
12) Alachua
13) Sumter
14) Hernando
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