Exhibit 99.1
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STORM-RECOVERY PROPERTY SERVICING AGREEMENT
between
FPL RECOVERY FUNDING LLC,
as Issuer,
and
FLORIDA POWER & LIGHT COMPANY,
as Servicer
Dated as of May 22, 2007
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions and Rules of Construction......................1
ARTICLE TWO
APPOINTMENT AND AUTHORIZATION
Section 2.01. Appointment of Servicer; Acceptance of Appointment.........1
Section 2.02. Authorization..............................................2
Section 2.03. Dominion and Control Over the Storm-Recovery Property......2
ARTICLE THREE
BILLING SERVICES
Section 3.01. Duties of Servicer.........................................2
Section 3.02. Servicing and Maintenance Standards........................4
Section 3.03. Annual Reports on Compliance with Regulation AB............5
Section 3.04. Annual Report by Independent Public Accountants............5
Section 3.05. Opinions of Counsel........................................6
ARTICLE FOUR
SERVICES RELATED TO PERIODIC ADJUSTMENTS, REMITTANCES AND RECONCILIATIONS
Section 4.01. Periodic Adjustments.......................................7
Section 4.02. Limitation of Liability....................................9
Section 4.03. Remittances................................................9
ARTICLE FIVE
CUSTODY OF THE STORM-RECOVERY PROPERTY
Section 5.01. Custody of Storm-Recovery Property Records................10
Section 5.02. Duties of Servicer as Custodian...........................10
Section 5.03. Instructions..............................................12
Section 5.04. Effective Period and Termination..........................12
Section 5.05. Alternative Energy Suppliers..............................12
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ARTICLE SIX
THE SERVICER
Section 6.01. Representations and Warranties of Servicer................12
Section 6.02. Indemnities of Servicer; Release of Claims................14
Section 6.03. Merger or Other Succession to, and Assumption of, the
Obligations of the Servicer...............................16
Section 6.04. Assignment of Servicer's Obligations......................18
Section 6.05. Limitation on Liability of Servicer and Others............18
Section 6.06. FPL Not To Resign as Servicer.............................18
Section 6.07. Servicing Fee.............................................19
Section 6.08. Servicer Expenses.........................................19
Section 6.09. Subservicing..............................................20
Section 6.10. No Servicer Advances......................................20
Section 6.11. Protection of Title.......................................20
ARTICLE SEVEN
DEFAULT
Section 7.01. Servicer Default..........................................20
Section 7.02. Notice of Servicer Default................................22
Section 7.03. Waiver of Past Defaults...................................22
Section 7.04. Appointment of Successor..................................22
Section 7.05. Cooperation with Successor................................23
ARTICLE EIGHT
MISCELLANEOUS PROVISIONS
Section 8.01. Amendment.................................................23
Section 8.02. Maintenance of Accounts and Records.......................25
Section 8.03. Notices...................................................25
Section 8.04. Limitations on Rights of Others...........................26
Section 8.05. Severability..............................................26
Section 8.06. Separate Counterparts.....................................26
Section 8.07. Headings..................................................26
Section 8.08. GOVERNING LAW.............................................26
Section 8.09. Assignment to the Trustee.................................26
Section 8.10. Nonpetition Covenants.....................................27
Section 8.11. Termination...............................................27
EXHIBITS, ANNEXES AND APPENDICES
Exhibit A - Form of Daily Remittance Certificate.....................A-1
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Exhibit B - Form of Routine (Bi-Annual) True-Up Adjustment Request...B-1
Exhibit C - Form of Monthly Servicer Certificate.....................C-1
Exhibit D - Form of Certificate of Compliance........................D-1
Exhibit E - Form of Assessment of Servicing Criteria.................E-1
Exhibit F - Expected Sinking Fund Schedule...........................G-1
Exhibit G - Form of Semiannual Servicer Certificate..................H-1
Exhibit H - Proceedings..............................................I-1
Annex I - Servicing Procedures...............................Annex I-1
Appendix A - Master Definitions...................................App A-1
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This STORM-RECOVERY PROPERTY SERVICING AGREEMENT, dated as of May 22,
2007 (as amended, restated, modified or supplemented from time to time, this
"Agreement"), is between FPL RECOVERY FUNDING LLC, a Delaware limited
liability company, as issuer (the "Issuer"), and FLORIDA POWER & LIGHT
COMPANY, a Florida corporation, as the servicer of the Storm-Recovery Property
hereunder (the "Servicer").
W I T N E S S E T H:
WHEREAS the Servicer is willing to service the Storm-Recovery Property
purchased from the Seller by the Issuer from time to time in accordance with
the Sale Agreement or a Subsequent Sale Agreement;
WHEREAS the Issuer, in connection with ownership of Storm-Recovery
Property, desires to engage the Servicer to carry out the functions described
herein;
WHEREAS, the Commission or its attorney will enforce the Agreement for
the benefit of the Customers.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions and Rules of Construction. Capitalized terms
used but not otherwise defined herein have the meanings assigned to them in
Appendix A hereto. This Agreement shall be construed in accordance with the
Rules of Construction. Whenever any reference is made to a Series of
Additional Bonds or any approval or consent of the Bondholders or Holders of
such Series of Additional Bonds, such reference shall only be given effect if
Storm-Recovery Property related to such Series of Additional Bonds is being
serviced under this Agreement.
ARTICLE TWO
APPOINTMENT AND AUTHORIZATION
Section 2.01. Appointment of Servicer; Acceptance of Appointment.
Subject to Section 6.06 and Article Seven, the Issuer hereby appoints the
Servicer, and the Servicer hereby accepts such appointment, to perform the
Servicer's obligations pursuant to this Agreement on behalf of and for the
benefit of the Issuer or any assignee thereof in accordance with the terms of
this Agreement and applicable law. This appointment and the Servicer's
acceptance thereof may not be revoked except in accordance with the express
terms of this Agreement.
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Section 2.02. Authorization. With respect to all or any portion of the
Storm-Recovery Property, the Servicer shall be, and hereby is, authorized and
empowered by the Issuer on behalf of itself, the Issuer, or both, as the case
may be, to:
(a) execute and deliver any and all instruments, documents or
notices, and
(b) make any filing and participate in proceedings of any kind
with any Governmental Authority, including with the Commission.
The Issuer shall execute and deliver to the Servicer such documents as
have been prepared by the Servicer for execution by the Issuer, and deliver to
the Servicer such other documents as may be in the Issuer's possession, as
necessary or appropriate to enable the Servicer to carry out its servicing and
administrative duties hereunder. Upon the written request of the Servicer, the
Issuer shall furnish the Servicer with any powers of attorney or other
documents necessary or appropriate to enable the Servicer to carry out its
duties hereunder.
Section 2.03. Dominion and Control Over the Storm-Recovery Property.
Notwithstanding any other provision herein, the Servicer and the Issuer agree
that the Issuer is the owner of the Storm-Recovery Property and shall have
dominion and control over the Storm-Recovery Property, and the Servicer, in
accordance with the terms hereof, is acting solely as the servicing agent of
the Issuer with respect to the Storm-Recovery Property. The Servicer hereby
recognizes the security interest of the Trustee in the Series A Storm-Recovery
Property granted pursuant to the Indenture and agrees to hold the proceeds
thereof in trust for the Issuer and the Trustee. The Servicer hereby agrees
that it shall not take any action that is not authorized by this Agreement,
the Statute or the Financing Order, that is not consistent with its customary
procedures and practices, or that shall impair the rights of the Issuer with
respect to the Storm-Recovery Property, in each case unless such action is
required by applicable Requirements of Law or court or regulatory order.
ARTICLE THREE
BILLING SERVICES
Section 3.01. Duties of Servicer. The Servicer, as agent for the Issuer,
shall have the following duties:
(a) Duties of Servicer Generally.
(i) General Duties. The Servicer's duties in general
shall include management, servicing and administration of the
Storm-Recovery Property; obtaining meter reads, calculating
electricity and demand usage, billing, collection and posting of
all payments in respect of the Storm-Recovery Property; responding
to inquiries by Customers, the Commission or any other
Governmental Authority with respect to the Storm-Recovery
Property; delivering Bills or arranging for delivery of Bills to
Customers, accounting for the billing and collection of the
Storm-Recovery Charges, investigating and handling delinquencies,
processing and depositing collections and making periodic
remittances; furnishing periodic reports to the Issuer, the
Commission, each
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Trustee and the Rating Agencies; and taking all necessary action
in connection with Periodic Adjustments as set forth herein.
Without limiting the generality of this Section 3.01(a)(i), in
furtherance of the foregoing, the Servicer hereby agrees that it
shall also have, and shall materially comply with, the duties and
responsibilities relating to data acquisition, usage and xxxx
calculation, billing, customer service functions, collections,
payment processing and remittances set forth in Annex I hereto.
(ii) Commission Regulations Control. Notwithstanding
anything to the contrary in this Agreement, the duties of the
Servicer set forth in this Agreement shall be qualified and
limited in their entirety by the Statute, the Financing Order and
any Commission Regulations as in effect at the time such duties
are to be performed.
(b) Reporting Functions.
(i) Daily Remittance Certificate. With respect to each
Series of Storm-Recovery Bonds, on each Servicer Business Day, the
Servicer shall prepare and deliver a written report substantially
in the form of Exhibit A hereto (the "Daily Remittance
Certificate") to the Issuer and the applicable Trustee.
(ii) Monthly Servicer Certificate. With respect to each
Series of Storm-Recovery Bonds, not later than 15 days after the
end of each month after such Series of Storm-Recovery Bonds are
issued (excluding May, 2007), or if such day is not a Servicer
Business Day, the next succeeding Servicer Business Day, the
Servicer shall deliver a written report substantially in the
form of Exhibit C hereto (the "Monthly Servicer Certificate") to
the Issuer, the Commission, the applicable Trustee and the Rating
Agencies.
(iii) Semiannual Servicer Certificate. With respect to
each Series of Storm-Recovery Bonds, not later than four Servicer
Business Days immediately preceding each Payment Date, the Servicer
shall deliver a written report substantially in the form of
Exhibit G hereto (the "Semiannual Servicer Certificate") to the
Issuer, the Commission, the applicable Trustee and the Rating
Agencies.
(iv) Notification of Laws and Regulations. The Servicer
shall immediately notify the Issuer, each Trustee and the Rating
Agencies in writing of any Requirements of Law or Commission
Regulations hereafter promulgated that have a material adverse
effect on the Servicer's ability to perform its duties under this
Agreement.
(v) Other Information. With respect to each Series of
Storm-Recovery Bonds, upon the reasonable request of the Issuer,
the Commission, the applicable Trustee, or any Rating Agency, the
Servicer shall provide to the Issuer, the Commission, the
applicable Trustee, or the Rating Agencies, as the case may be,
any public financial information in respect of the Servicer, or
any material
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information regarding the Storm-Recovery Property to the extent it
is reasonably available to the Servicer, as may be reasonably
necessary and permitted by applicable Requirements of Law for the
Issuer, the Commission, the applicable Trustee, or the Rating
Agencies to monitor the Servicer's performance hereunder. In
addition, so long as any of the Storm-Recovery Bonds of any Series
are Outstanding, the Servicer shall provide to the Issuer, the
Commission and to the applicable Trustee, within a reasonable time
after written request therefor, any information available to the
Servicer or reasonably obtainable by it that is necessary to
calculate the Storm-Recovery Charges.
(vi) Preparation of Reports. The Servicer shall prepare
and deliver or cause to be prepared and delivered, such additional
reports as required under this Agreement, including the annual
Certificate of Compliance described in Section 3.03 and the Annual
Accountant's Report described in Section 3.04. In addition, the
Servicer shall prepare, procure, deliver and/or file, or cause to
be prepared, procured, delivered or filed, any reports,
attestations, exhibits, certificates or other documents required
to be delivered or filed with the SEC (or any other Governmental
Authority) by the Issuer or the Sponsor under the federal
securities or other applicable laws or in accordance with the
Basic Documents, including, but without limiting the generality of
foregoing, filing with the SEC, if applicable, a copy or copies of
(i) the Monthly Servicer Certificates described in Section
3.01(b)(ii) (under Form 10-D or any other applicable form), (ii)
the Semiannual Servicer Certificates described in Section
3.01(b)(iii) (under Form 10-D or any other applicable form), (iii)
the annual statements of compliance, attestation reports and other
certificates described in Section 3.03, and (iv) the Annual
Accountant's Report (and any attestation required under Regulation
AB) described in Section 3.04. In addition, the appropriate
officer or officers of the Servicer shall (in its separate
capacity as Servicer) sign the Sponsor's annual report on Form
10-K (and any other applicable SEC or other reports, attestations,
certifications and other documents), to the extent that the
Servicer's signature is required by, and consistent with, the
federal securities law and/or any other applicable law.
Section 3.02. Servicing and Maintenance Standards. On behalf of the
Issuer, the Servicer shall (a) manage, service, administer and make
collections in respect of the Storm-Recovery Property with reasonable care and
in material compliance with applicable Requirements of Law, including all
material Commission Regulations, using the same degree of care and diligence
that the Servicer exercises with respect to similar assets for its own account
and, if applicable, for others; (b) follow customary standards, policies and
procedures for the industry in performing its duties as Servicer; (c) use
reasonable efforts, consistent with its customary servicing procedures, to
xxxx and collect the Storm-Recovery Charges; (d) calculate the Storm-Recovery
Charges in accordance with the Statute and the Financing Order; (e) file UCC
financing and continuation statements to create and maintain the first
priority perfected security interest of the applicable Trustee in the
applicable Storm-Recovery Property and use reasonable efforts to otherwise
enforce and maintain the applicable Trustee's rights in respect of such
Storm-Recovery Property; and (f) comply in all material respects with all
applicable Requirements of Law relating to the Storm-Recovery Property. The
Servicer shall follow such
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customary and usual practices and procedures as it shall deem necessary or
advisable in its servicing of all or any portion of the Storm-Recovery
Property, which, in the Servicer's judgment, may include the taking of legal
action at the Issuer's expense.
Section 3.03. Annual Reports on Compliance with Regulation AB.
(a) The Servicer shall deliver to the Issuer, each Trustee and the
Rating Agencies, on or before the earlier of (a) March 31 of each year
beginning March 31, 2008 or (b) with respect to each calendar year during
which the Sponsor's annual report on Form 10-K is required to be filed in
accordance with the Exchange Act and the rules and regulations thereunder, the
date on which the annual report on Form 10-K is required to be filed in
accordance with the Exchange Act and the rules and regulations thereunder,
certificates from an Authorized Officer of the Servicer (i) containing, and
certifying as to, the statements of compliance required by Item 1123 (or any
successor or similar items or rule) of Regulation AB, as then in effect, which
may be in the form of Exhibit D hereto (the "Certificate of Compliance") and
(ii) containing, and certifying as to, the statements and assessment of
compliance required by Item 1122(a) (or any successor or similar items or
rule) of Regulation AB, as then in effect, which may be in the form of Exhibit
E hereto (the "Assessment of Servicing Criteria").
(b) The Servicer shall use commercially reasonable efforts to obtain
from each other party, if any, participating in the servicing function any
additional certifications as to the statements and assessment required under
Item 1122 or Item 1123 of Regulation AB to the extent required in connection
with the filing of the annual report on Form 10-K; provided, however, that a
failure to obtain such certifications shall not be a breach of the Servicer's
duties hereunder. The parties acknowledge that the Trustee's certifications
shall be limited to the Item 1122 certifications described in Exhibit B of the
Indenture.
(c) The initial Servicer, in its capacity as Sponsor, shall post on its
own website or on one maintained by an Affiliate and file with or furnish to
the SEC, in periodic reports and other reports as are required to be filed by
the Issuer, if any, from time to time under Section 13 or Section 15(d) of the
Exchange Act (to the extent permitted by and consistent with the Sponsor's
obligations under applicable law), the information described in Section 3.07
of the Indenture (or any Additional Indenture) to the extent such information
is reasonably available to the Sponsor. The Issuer may suspend the filing of
periodic reports with the SEC to the extent permitted by Section 15(d) of the
Exchange Act. The covenants of the initial Servicer, in its capacity as
Sponsor, pursuant to this Section 3.03(c) shall survive the resignation,
removal or termination of the initial Servicer as Servicer hereunder.
Section 3.04. Annual Report by Independent Public Accountants.
(a) With respect to each Series of Storm-Recovery Bonds, the Servicer
shall cause a firm of independent certified public accountants (which may
provide other services to the Servicer or the Seller) to prepare, and the
Servicer shall deliver to the Issuer, the Commission, the applicable Trustee
and the Rating Agencies, a report addressed to the Servicer (the "Annual
Accountant's Report"), which may be included as part of the Servicer's
customary auditing activities, for the information and use of the Issuer, the
applicable Trustee and the Rating Agencies, on or before March 31 of each
year, beginning March 31, 2008 to and including the
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March 31 succeeding the Retirement Date, to the effect that such firm has
performed an attestation of certain assertions made by management of the
Servicer in connection with the Servicer's compliance with its obligations
under this Agreement during the preceding 12 months ended December 31 (or, in
the case of the first Annual Accountant's Report to be delivered on or before
March 31 2008, the period of time from the date of this Agreement until
December 31, 2007), identifying the results of such procedures and including
any material exceptions noted. In the event such accounting firm requires the
Trustee to agree or consent to the procedures performed by such firm, the
Issuer shall direct the Trustee in writing to so agree; it being understood
and agreed that the Trustee will deliver such letter of agreement or consent
in conclusive reliance upon the direction of the Issuer, and the Trustee will
not make any independent inquiry or investigation as to, and shall have no
obligation or liability in respect of, the sufficiency, validity or
correctness of such procedures.
(b) The Annual Accountant's Report shall also indicate that the
accounting firm providing such report is Independent of the Servicer within
the meaning of the Code of Professional Ethics of the American Institute of
Certified Public Accountants, and shall include the attestation report
required under Item 1122(b) of Regulation AB (or any successor or similar
items or rule) as then in effect.
Section 3.05. Opinions of Counsel. The Servicer shall deliver on behalf
of the Issuer to the Issuer, the Commission, and to each Trustee:
(a) promptly after the execution and delivery of this Agreement
and of each Sale Agreement and of each amendment hereto or thereto, an
Opinion or Opinions of Counsel either:
(i) to the effect that, in the opinion of such counsel, all
filings under the Statute and the UCC that are necessary to
perfect the interests of the Trustee under the Indenture in the
Series A Storm-Recovery Property and, if applicable, any
additional Trustee under any Additional Indenture in any
Subsequent Storm-Recovery Property, to the extent perfection can
be achieved by filing under the Statute and the UCC, have been
executed and filed, and reciting the details of such filings or
referring to prior Opinions of Counsel in which such details are
given, or
(ii) to the effect that, in the opinion of such counsel, no
such action is necessary to perfect such interests; and
(b) within 90 days after the beginning of each calendar year
beginning with the first calendar year beginning more than three full
calendar months after the Closing Date, an Opinion or Opinions of
Counsel, dated as of a date during such 90-day period, either:
(i) to the effect that, in the opinion of such counsel, all
filings under the Statute and the UCC that are necessary to
perfect the interests of the Trustee under the Indenture in the
Series A Storm-Recovery Property and, if applicable, any
additional Trustee under any Additional Indenture in any
Subsequent Storm-
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Recovery Property, to the extent perfection can be achieved by
filing under the Statute and the UCC, have been executed and filed
and reciting the details of such filings or referring to prior
Opinions of Counsel in which such details are given, or
(ii) to the effect that, in the opinion of such counsel, no
such action is necessary to perfect such interests.
(c) Each Opinion of Counsel referred to in clause (a) or (b) above
shall specify any action necessary (as of the date of such opinion) to
be taken in the following year to perfect, preserve and protect such
interests.
ARTICLE FOUR
SERVICES RELATED TO PERIODIC ADJUSTMENTS,
REMITTANCES AND RECONCILIATIONS
Section 4.01. Periodic Adjustments. With respect to each Series of
Storm-Recovery Bonds, from time to time until the Retirement Date, the
Servicer shall identify the need for Periodic Adjustments and shall take
reasonable action to obtain and implement such Periodic Adjustments, all in
accordance with the following:
(a) Expected Sinking Fund Schedule. The Expected Sinking Fund
Schedule for the Bonds is attached hereto as Exhibit F. In connection
with the issuance by the Issuer of any Additional Bonds, the Servicer,
on or prior to the Series Issuance Date for any Series of any Additional
Bonds, shall provide an expected sinking fund schedule relating to each
such new Series of Storm-Recovery Bonds setting forth, as of each
Payment Date through the Retirement Date, the aggregate amount of the
Storm-Recovery Bonds of that Series, expected to be outstanding on such
Payment Date.
(b) Routine True-Up Adjustments.
(i) With respect to each Series of Storm-Recovery Bonds, the
Servicer shall file a Routine True-Up Adjustment Request with the
Commission substantially in the form of Exhibit B hereto (the
"Routine True-Up Adjustment Request") on or before March 31 and
September 30 of each year, commencing September 30, 2007. For the
purpose of preparing each Routine True-Up Adjustment Request, the
Servicer shall: (A) update the assumptions underlying the
calculation of the Storm-Recovery Charges, including electric
energy volume (based upon the most recent forecasts used by the
Servicer for all of its corporate purposes), the rate of charge-
offs based upon the Servicer's most recent experience and estimated
expenses and fees of the Issuer to the extent not fixed, in each
case for the upcoming or then-current Remittance Period (as
applicable); (B) calculate the Bond Revenue Requirement for such
Series of Storm-Recovery Bonds upon such updated assumptions; and
(C) determine the Storm-Recovery Charges to be charged during such
Remittance Period (or the remainder of such Remittance Period)
based upon such
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requirements and determine the Tax Charges to be charged during
such Remittance Period.
(ii) If the Storm-Recovery Bonds of any Series are
Outstanding on or after the Scheduled Final Payment Date of such
Series, the Servicer shall also file quarterly Routine True-Up
Adjustments with the Commission, commencing, in the case of the
Bonds, on or before August 2, 2019.
(iii) If the Storm-Recovery Bonds of any Series are
Outstanding on or after the date that is one year before the Final
Maturity Date of such Series, the Servicer shall also file monthly
Routine True-Up Adjustments with the Commission commencing, in the
case of the Bonds, on or before August 2, 2020.
(iv) The Servicer shall take reasonable actions and make
reasonable efforts to secure any Periodic Adjustments in clauses
(i), (ii) and (iii) above (each, a "Routine True-Up Adjustment").
Each routine true-up filing shall be made no later than sixty (60)
days prior to the proposed effective date of any adjustment. If
the Commission determines that there is any mathematical error in
any Routine True-Up Adjustment Request, the Servicer will promptly
refile a corrected Routine True-Up Adjustment Request.
(c) Non-Routine True-Up Adjustments.
(A) Whenever the Servicer files for a base rate case or any
other rate case which would result in a change in the allocation
of responsibility for the Storm-Recovery Charge and the Tax
Charges, the Servicer shall file a Non-Routine True-Up Adjustment
Request with the Commission designating the adjustments to the
Storm-Recovery Charge and the Tax Charges for each Series of
Storm-Recovery Bonds which would result from such change of
allocation, subject to the review and approval of the Commission
pursuant to the Financing Order.
(B) The Servicer shall also request an amendment to the
true-up adjustment formula if it deems necessary or appropriate to
address any material and recurring deviation between Storm
Recovery Charge Collections and the Bond Revenue Requirements,
subject to the review and approval of the Commission pursuant to
the Financing Order.
(C) A request by the Servicer under either clause (A) or (B)
hereof is known as a "Non-Routine True-Up Adjustment." A
Non-Routine True-Up Adjustment may go into effect simultaneously
with a Routine True-Up Adjustment.
(ii) The Servicer shall take reasonable actions and make
reasonable efforts to secure any Non-Routine True-Up Adjustments.
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(iii) The Servicer shall implement any resulting adjustments
to the true-up adjustment model and any resulting revised
Storm-Recovery Charges as of the effective date of the Non-Routine
True-Up Adjustment.
(d) Notification of Adjustment Requests. Whenever the Servicer
files an Adjustment Request with the Commission, the Servicer shall send
a copy of such filing to the Issuer, each Trustee and the Rating
Agencies concurrently therewith. If any Routine True-Up Adjustment
Request does not become effective on the applicable date as provided in
such filing and in accordance with the Financing Order, the Servicer
shall notify the Issuer, each Trustee and the Rating Agencies by the end
of the second Servicer Business Day after such applicable date.
Section 4.02. Limitation of Liability.
(a) The Issuer and the Servicer expressly agree and acknowledge that:
(i) In connection with any Periodic Adjustment, the Servicer is
acting solely in its capacity as the servicing agent of the Issuer
hereunder.
(ii) Neither the Servicer nor the Issuer shall be responsible in
any manner for, and shall have no liability whatsoever as a result of,
any action, decision, ruling or other determination made or not made, or
any delay (other than any delay resulting from the Servicer's failure to
file the requests required by Section 4.01 in a timely and correct
manner or other breach by the Servicer of its duties under this
Agreement that materially and adversely affects the Periodic
Adjustments), by the Commission in any way related to the Storm-Recovery
Property or in connection with any Periodic Adjustment, the subject of
any filings under Section 4.01.
(iii) Except only to the extent that the Servicer is liable under
Section 6.02, (A) the Servicer shall have no liability whatsoever
relating to the calculation of the Storm-Recovery Charges and the
adjustments thereto (including any Non-Routine True-Up Adjustment),
including as a result of any inaccuracy of any of the assumptions made
in such calculation regarding expected electric energy or demand usage
volumes, the rate of charge-offs and estimated expenses and fees of the
Issuer, so long as the Servicer has not acted in bad faith or in a
grossly negligent manner in connection therewith, and (B) the Servicer
shall have no liability whatsoever as a result of any Person, including
the Bondholders, not receiving any payment, amount or return anticipated
or expected in respect of any Storm-Recovery Bond generally.
(b) Notwithstanding the foregoing, this Section 4.02 shall not relieve
the Servicer of any liability under Section 6.02 for any misrepresentation by
the Servicer under Section 6.01 or for any breach by the Servicer of its
obligations under this Agreement.
Section 4.03. Remittances.
(a) Subject to Section 4.03(b), the Servicer shall, on each Servicer
Business Day, cause to be made a wire transfer of immediately available funds
to the General Subaccount of the Collection Account in an amount equal to the
Estimated Storm-Recovery Charge Payments
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received on each day (whether or not the day such payment is received is a
Servicer Business Day), together with all Estimated Storm-Recovery Charge
Payments for any prior day for which a Remittance has not previously been
made, as calculated and further provided in Annex I hereto. Prior to or
simultaneous with each Remittance to the General Subaccount of the Collection
Account pursuant to this Section 4.03, the Servicer shall provide written
notice to the applicable Trustee of each such Remittance (including the exact
dollar amount to be remitted and the dates of Estimated Storm-Recovery Charge
Payments to which such Remittance corresponds) in the form of Exhibit A
hereto.
(b) On or before each March 1, the Servicer shall calculate the amount
of any Remittance Shortfall or Remittance Excess attributable to the two prior
Remittance Periods and (A) if a Remittance Shortfall exists, the Servicer
shall make a supplemental wire transfer of immediately available funds to the
General Subaccount of the Collection Account on the next Servicer Business Day
following such calculation in the amount of such Remittance Shortfall, or (B)
if a Remittance Excess exists, the Servicer may reduce the amount of
Remittances to be made to the applicable Trustee on succeeding Servicer
Business Days in an amount equal to the amount of such Remittance Excess until
the balance of the Remittance Excess has been reduced to zero. The Servicer
shall deliver a written report setting forth in reasonable detail the
calculation of any Remittance Excess or Remittance Shortfall to the Issuer,
the Commission, the applicable Trustee, and the Rating Agencies.
(c) The Servicer agrees and acknowledges that it will remit Estimated
Storm-Recovery Charge Payments in accordance with this Section 4.03 without
any surcharge, fee, offset, charge or other deduction except as set forth in
Section 4.03(b) or in Section 6.07(b).
(d) The Servicer shall, prior to each Payment Date, direct the Trustee
to apply all amounts on deposit in the General Subaccount of the Collection
Account and any investment earnings on the Subaccounts in the Collection
Account in accordance with Section 8.02(d) of the Indenture.
ARTICLE FIVE
CUSTODY OF THE STORM-RECOVERY PROPERTY
Section 5.01. Custody of Storm-Recovery Property Records. To assure
uniform quality in servicing the Storm-Recovery Property and to reduce
administrative costs, the Issuer hereby revocably appoints the Servicer, and
the Servicer hereby accepts such appointment, to act as the agent of the
Issuer and each Trustee as custodian of the Storm-Recovery Property Records,
all of which are the sole property of the Issuer and which are hereby
constructively delivered to each Trustee, as pledgee of the Issuer with
respect to all Storm-Recovery Property.
Section 5.02. Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer shall hold the Storm-Recovery Property
Records on behalf of the Issuer and each Trustee, as custodian, and shall
maintain such accurate and complete accounts, records and computer systems
pertaining to the Storm-Recovery Property Records as shall enable the Issuer
to comply with this Agreement, the Indenture and any
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Additional Indenture. In performing its duties as custodian, the Servicer
shall act with reasonable care, using that degree of care and diligence that
the Servicer exercises with respect to comparable assets that the Servicer
services for itself or, if applicable, for others. The Servicer shall promptly
report to the Issuer, the Commission and each Trustee any material failure on
its part to hold the Storm-Recovery Property Records and maintain its
accounts, records and computer systems as herein provided and promptly take
appropriate action to remedy any such failure. Nothing herein shall be deemed
to require an initial review or any periodic review by the Issuer or any
Trustee of the Storm-Recovery Property Records. The Servicer's duties to hold
the Storm-Recovery Property Records on behalf of the Issuer set forth in this
Section 5.02, to the extent such Storm-Recovery Property Records have not been
previously transferred to a Successor Servicer pursuant to Article Seven,
shall terminate one year and one day after the earlier of the date on which
(i) the Servicer is succeeded by a Successor Servicer in accordance with
Article Seven and (ii) no Storm-Recovery Bonds are Outstanding.
(b) Maintenance of and Access to Records. The Servicer shall maintain at
all times records and accounts that will clearly identify Storm-Recovery
Charges as having been billed on behalf of the Issuer. The Servicer shall
maintain the Storm-Recovery Property Records at 000 Xxxxxxxx Xxxxxxxxx, Xxxx
Xxxxx, Xxxxxxx 00000 or at such other office as shall be specified to the
Issuer, the Commission and each Trustee by written notice at least 30 days
prior to any change in location. The Servicer shall make available for
inspection to the Issuer, the Commission and each Trustee or their respective
duly authorized representatives, attorneys or auditors the Storm-Recovery
Property Records at such times during normal business hours as the Issuer, the
Commission or any Trustee shall reasonably request and which do not
unreasonably interfere with the Servicer's normal operations. Nothing in this
Section 5.02(b) shall affect the obligation of the Servicer to observe any
applicable law (including any Commission Regulations) prohibiting disclosure
of information regarding the Customers, and the failure of the Servicer to
provide access to such information as a result of such obligation shall not
constitute a breach of this Section 5.02(b).
(c) Release of Documents. Upon instruction from the Trustee in
accordance with the Indenture, the Servicer shall release any Storm-Recovery
Property Records to the Trustee, the Trustee's agent or the Trustee's
designee, as the case may be, at such place or places as the Trustee may
designate, as soon as practicable.
(d) Defending Storm-Recovery Property Against Claims. To the extent not
undertaken by the Seller pursuant to Section 4.08 of the Sale Agreement, the
Servicer shall negotiate for the retention of legal counsel and such other
experts as may be needed to institute and maintain any action or proceeding,
on behalf of and in the name of the Issuer, necessary to compel performance by
the Commission or the State of any of their obligations or duties under the
Statute and the Financing Order, and the Servicer agrees to assist the Issuer
and its legal counsel in taking such legal or administrative actions,
including defending against or instituting and pursuing legal actions and
appearing or testifying at hearings or similar proceedings, as may be
reasonably necessary to attempt to block or overturn any attempts to cause a
repeal of, modification of or supplement to the Statute or the Financing
Order, or the rights of holders of Storm-Recovery Property by legislative
enactment, constitutional amendment or other means that would be adverse to
Holders of the Bonds or any Series of Additional Bonds. In any proceedings
related to the exercise of the power of eminent domain by any municipality to
acquire a portion of FPL's electric distribution facilities, the Servicer will
assert that that the
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court ordering such condemnation must treat such municipality as a successor
to FPL under the Statute and the Financing Order. The costs of any such action
shall be payable as an Operating Expense in accordance with the priorities set
forth in Section 8.02(d) of the Indenture and any Additional Indenture. The
Servicer's obligations pursuant to this Section 5.02 shall survive and
continue notwithstanding the fact that the payment of Operating Expenses
pursuant to Section 8.02 of the Indenture and any Additional Indenture may be
delayed; provided, that, the Servicer is obligated to institute and maintain
such action or proceedings only if it is being reimbursed on a current basis
for its costs and expenses in taking such actions in accordance with Section
8.02 of the Indenture and any Additional Indenture, and is not required to
advance its own funds to satisfy these obligations.
Section 5.03. Instructions. For so long as any Storm-Recovery Bonds
remain Outstanding, the Servicer shall be deemed to have received proper
instructions with respect to the Storm-Recovery Property Records upon its
receipt of written instructions signed by an Authorized Officer of the
Trustee.
Section 5.04. Effective Period and Termination. The Servicer's
appointment as custodian shall become effective as of the Closing Date and
shall continue in full force and effect until a Successor Servicer has assumed
such obligations in accordance with Section 7.04.
Section 5.05. Alternative Energy Suppliers. So long as any of the
Storm-Recovery Bonds are Outstanding, the Servicer shall take reasonable
efforts to assure that no AES bills or collects Storm-Recovery Charges on
behalf of the Issuer unless required by applicable law or regulation and, to
the extent permitted by applicable law or regulation, the Rating Agency
Condition is satisfied. If an AES does xxxx or collect Storm-Recovery Charges
on behalf of the Issuer, upon the reasonable request of the Issuer, the
Commission, any Trustee, or any Rating Agency, the Servicer shall take
reasonable steps to assure that such an AES provides to the Issuer, the
Commission, each Trustee or the Rating Agencies, as the case may be, any
public financial information in respect of such AES, or any material
information regarding the Storm-Recovery Property to the extent it is
reasonably available to such AES, as may be reasonably necessary and permitted
by law for the Issuer, the Commission, any Trustee or the Rating Agencies to
monitor such AES' performance hereunder. In addition, so long as any of the
Storm-Recovery Bonds are Outstanding, Servicer will use commercially
reasonable efforts to ensure that such AES provide to the Issuer and to any
Trustee, within a reasonable time after written request therefor, any
information available to the AES or reasonably obtainable by it that is
necessary to calculate the Storm-Recovery Charges.
ARTICLE SIX
THE SERVICER
Section 6.01. Representations and Warranties of Servicer. The Servicer
makes the following representations and warranties as of the Series Issuance
Date for the applicable Series of Storm-Recovery Bonds, on which the Issuer
and the Commission (for the benefit of the Customers) have relied and will
rely in acquiring and authorizing the acquisition of the Storm-Recovery
Property applicable to such Series of Storm-Recovery Bonds and in entering
into or in authorizing this Agreement or any amendment hereto. The
representations and warranties shall
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survive the execution and delivery of this Agreement, the sale of any of the
Storm-Recovery Property to the Issuer and the pledge thereof to the applicable
Trustee pursuant to the Indenture or any Additional Indenture; provided,
however, that such representations and warranties shall cease to be in effect
with respect to the Issuer one year following the repayment or redemption of
all of the Storm-Recovery Bonds of such Series.
(a) Organization and Good Standing. The Servicer is a corporation
duly organized and in good standing or equivalent status under the laws
of the state of its incorporation, with the corporate power and
authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently conducted
and to execute, deliver and carry out the terms of this Agreement, and
has the power, authority and legal right to service the Storm-Recovery
Property.
(b) Due Qualification. The Servicer is duly qualified to do
business as a foreign corporation in good standing or equivalent status,
and has obtained all necessary licenses and approvals in, all foreign
jurisdictions, in which the ownership or lease of property or the
conduct of its business (including the servicing of the Storm-Recovery
Property as required by this Agreement) requires such qualifications,
licenses or approvals (except where the failure to so qualify and obtain
such licenses and approvals would not be reasonably likely to have a
material adverse effect on the Servicer's business, operations, assets,
revenues, properties or prospects or materially and adversely affect the
servicing of the Storm-Recovery Property).
(c) Power and Authority. The Servicer has the corporate power and
authority to execute and deliver this Agreement and to carry out its
terms; and the execution, delivery and performance of this Agreement
have been duly authorized by the Servicer by all necessary corporate
action.
(d) Binding Obligation. This Agreement constitutes a legal, valid
and binding obligation of the Servicer, enforceable against the Servicer
in accordance with its terms subject to bankruptcy, receivership,
insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity (regardless of whether considered in a proceeding
in equity or at law).
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
will not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time) a
default under, the Mortgage and Deed of Trust, the articles of
incorporation or by-laws of the Servicer, or any other material
indenture, agreement or other instrument to which the Servicer is a
party or by which it is bound; or result in the creation or imposition
of any Lien upon any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (except as contemplated in the
Indenture and as set forth in Section 4.02 of the Sale Agreement); or
violate any law or any order, rule or regulation applicable to the
Servicer of any Governmental Authority having jurisdiction over the
Servicer or its properties in any material respect.
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(f) Approvals. Except for filings with the Commission pursuant to
Article IV of this Agreement, the storm-recovery property notice under
the Statute with the Florida Secured Transaction Registry, filings of
any financing statements or continuation statements under the UCC and
filings with the SEC or other Governmental Authorities pursuant to this
Agreement, no approval, authorization, consent, order or other action
of, or filing with, any Governmental Authority is required in connection
with the execution and delivery by the Servicer of this Agreement, the
performance by the Servicer of the transactions contemplated hereby or
the fulfillment by the Servicer of the terms hereof, except those that
have been obtained or made.
(g) No Proceedings. Except as set forth in Exhibit H, to the
Servicer's knowledge, there are no proceedings or investigations pending
or threatened against the Servicer before any Governmental Authority
having jurisdiction over the Servicer or its properties:
(i) seeking to prevent the issuance of such Series of
Storm-Recovery Bonds or the consummation of any of the
transactions contemplated by this Agreement or any of the other
Basic Documents or, if applicable, any Additional Indenture or
Subsequent Sale Agreement;
(ii) seeking any determination or ruling that might
materially and adversely affect the performance by the Servicer of
its obligations under, or the validity or enforceability against
the Servicer of, this Agreement or any of the other Basic
Documents or, if applicable, any Additional Indenture or
Subsequent Sale Agreement; or
(iii) relating to the Servicer and which might materially
and adversely affect the federal or state income, gross receipts
or franchise tax attributes of the Storm-Recovery Bonds.
(h) Reports and Certificates. Each report and certificate
delivered in connection with any filing made to the Commission by the
Servicer on behalf of the Issuer with respect to the Storm-Recovery
Charges or Periodic Adjustments will constitute a representation and
warranty by the Servicer that each such report or certificate, as the
case may be, is true and correct in all material respects. To the extent
that any such report or certificate is based in part upon or contains
assumptions, forecasts or other predictions of future events, the
representation and warranty of the Servicer with respect thereto will be
limited to the representation and warranty that such assumptions,
forecasts or other predictions of future events are reasonable based
upon historical performance and the facts known to the Servicer on the
date such report or certificate is delivered.
Section 6.02. Indemnities of Servicer; Release of Claims.
(a) The Servicer shall be liable in accordance herewith only to the
extent of the obligations specifically undertaken by the Servicer under this
Agreement.
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(b) The Servicer shall indemnify the Indemnified Persons, and defend and
hold harmless each such Indemnified Person from and against, any and all
Losses that may be imposed upon, incurred by or asserted against any such
Indemnified Person as a result of:
(i) the Servicer's willful misconduct, bad faith or gross
negligence that results in a Servicer Default; and
(ii) the Servicer's material breach of any of its representations
or warranties in this Agreement that results in a Servicer Default;
Notwithstanding the foregoing, the Servicer shall not be liable for any Losses
resulting from the willful misconduct, bad faith or gross negligence of any
Indemnified Person or resulting from a breach of a representation or warranty
made by such Indemnified Person in any of the Basic Documents or, if
applicable, any Additional Indenture or Subsequent Sale Agreement that gives
rise to the Servicer's breach.
Promptly after receipt by an Indemnified Person of notice of its
involvement in any action, demand, proceeding or investigation, such
Indemnified Person shall, if a claim for indemnification in respect thereof is
to be made against the Servicer under this Section 6.02, notify the Servicer
in writing of such involvement. Failure by an Indemnified Person to so notify
the Servicer shall relieve the Servicer from the obligation to indemnify and
hold harmless such Indemnified Person under this Section 6.02 only to the
extent that the Servicer has actually been prejudiced as a result of such
failure. With respect to any action, proceeding or investigation brought by a
third party for which indemnification may be sought under this Section 6.02,
the Servicer shall be entitled to assume the defense of any such action,
proceeding or investigation. Upon assumption by the Servicer of the defense of
any such action, proceeding or investigation, the Indemnified Person shall
have the right to participate in such action or proceeding and to retain its
own counsel (including local counsel), and the Servicer shall bear the
reasonable fees, costs and expenses of such separate counsel. The Indemnified
Person shall not settle or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought under this Section 6.02
(whether or not the Servicer is an actual or potential party to such claim or
action) unless the Servicer agrees in writing to such settlement, compromise
or consent and such settlement, compromise or consent includes an
unconditional release of the Servicer from all liability arising out of such
claim, action, suit or proceeding.
(c) The Servicer shall indemnify each Trustee and its respective
officers, directors and agents for, and defend and hold harmless each such
Person from and against, any and all Losses that may be imposed upon, incurred
by or asserted against any such Person as a result of the acceptance or
performance of the trusts and duties contained herein and in the Indenture,
except to the extent that any such Loss is due to the willful misconduct, bad
faith or gross negligence of such Trustee. The foregoing indemnity is extended
to each Trustee solely in its individual capacity and not for the benefit of
the Bondholders or any other Person. Such amounts with respect to any Trustee
shall be deposited and distributed in accordance with the Indenture or
Additional Indenture as applicable.
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(d) The Servicer shall indemnify the Commission, on behalf of the
Customers, to the extent Customers incur Losses associated with higher
servicing fees payable to a Successor Servicer as a result of the Servicer's
negligence, misconduct, or termination of this Agreement for cause. Further,
if the Servicer remains an entity subject to the Commission's regulatory
authority as a public utility (or otherwise for ratemaking purposes), the
Servicer hereby acknowledges and agrees that the Commission, subject to the
outcome of an appropriate Commission proceeding, may take such action as the
Commission deems necessary or appropriate under its regulatory authority to
require the Servicer to make Customers whole for any Losses they incur in
connection with the failure of any material representation, or warranty by the
Servicer under this Agreement, or by reason of the Servicer's bad faith,
willful misconduct, or failure to conduct itself prudently as may be
determined by the Commission, including without limitation Losses attributable
to higher Storm-Recovery Charges imposed on Customers by reason of additional
Operating Expenses. The Servicer hereby acknowledges and agrees that such
action by the Commission may include, but is not limited to, adjustments to
the Servicer's other regulated rates and charges or credits to Customers. If
the Servicer does not remain, or is not, subject to the Commission's
regulatory authority as a public utility (or otherwise for ratemaking
purposes), such Servicer shall indemnify the Commission, on behalf of the
Customers, for any Losses incurred by Customers by reason of the Servicer's
negligence, misconduct, or termination for cause, including without limitation
Losses attributable to higher Storm-Recovery Charges imposed on Customers by
reason of additional Operating Expenses. The Servicer's indemnification under
this Section 6.02(d) shall survive the termination of this Agreement, and any
amounts paid with respect thereto shall be remitted and deposited with the
Indenture Trustee for deposit in the Collection Account, unless otherwise
directed by the Commission. Notwithstanding anything to the contrary in this
Agreement or in any other Basic Document, so long as any Storm-Recovery Bonds
are Outstanding, any indemnity payments to the Commission (for the benefit of
Customers) pursuant to this Section 6.02(d) shall be promptly remitted to the
Trustee for deposit in the applicable Collection Account.
(e) The Servicer's indemnification obligations under Section 6.02(b) and
(c) for events occurring prior to the removal or resignation of the applicable
Trustee or the termination of this Agreement shall survive the resignation or
removal of the applicable Trustee or the termination of this Agreement and
shall include reasonable costs, fees and expenses of investigation and
litigation (including the Issuer's and the applicable Trustee's reasonable
attorneys' fees and expenses actually incurred).
(f) Except to the extent expressly provided for in the Basic Documents
or, if applicable, any Additional Indenture or Subsequent Sale Agreement
(including the Servicer's claims with respect to the Servicing Fees and the
Seller's claim for payment of the purchase price of the Storm-Recovery
Property applicable thereto), the Servicer hereby releases and discharges the
Released Parties from any and all actions, claims and demands whatsoever which
the Servicer shall or may have against any such Released Party relating to the
Storm-Recovery Property or the Servicer's activities with respect thereto
other than any actions, claims and demands arising out of the willful
misconduct, bad faith or gross negligence of the Released Parties.
Section 6.03. Merger or Other Succession to, and Assumption of, the
Obligations of the Servicer. Any Person:
16
(a) into which the Servicer may be merged or consolidated and which
succeeds to all or the major part of the electric distribution business of the
Servicer,
(b) which results from the division of the Servicer into two or more
Persons and which succeeds to all or the major part of the electric
distribution business of the Servicer,
(c) which may result from any merger or consolidation to which the
Servicer shall be a party and which succeeds to all or the major part of the
electric distribution business of the Servicer,
(d) which may succeed to the properties and assets of the Servicer
substantially as a whole and which succeeds to all or the major part of the
electric distribution business of the Servicer, or
(e) which may otherwise succeed to all or the major part of the electric
distribution business of the Servicer, which Person in any of the foregoing
cases executes an agreement of assumption to perform every obligation of the
Servicer under this Agreement, shall be a Successor Servicer hereunder without
the execution or filing of any document or any further act by any of the
parties to this Agreement; provided, however that:
(i) immediately after giving effect to such transaction, no
representation or warranty made pursuant to Section 6.01 shall have been
breached and no Servicer Default, and no event that, after notice or
lapse of time, or both, would become a Servicer Default, shall have
occurred and be continuing;
(ii) the Servicer shall have delivered to the Issuer, the
Commission, each Trustee and the Rating Agencies an Officer's
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, reorganization or succession and such agreement
of assumption comply with this Section 6.03 and that all conditions
precedent, if any, provided for in this Agreement relating to such
transaction have been complied with;
(iii) the Servicer shall have delivered to the Issuer, each
Trustee, the Commission and the Rating Agencies an Opinion of Counsel
stating that, in the opinion of such counsel, either:
(A) all filings to be made by the Servicer, including
filings under the Statute and the UCC, that are necessary fully to
preserve and protect the interests of the applicable Trustee in
the applicable Storm-Recovery Property have been executed and
filed and reciting the details of such filings, or
(B) no such action is necessary to preserve and protect such
interests; and
(iv) the Rating Agencies shall have received prior written notice
of such transaction;
The Servicer shall not consummate any transaction referred to in clauses (a),
(b), (c), (d) or (e) above except upon execution of the above-described
agreement of assumption and
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compliance with subclauses (i), (ii), (iii), and (iv) of clause (e) above.
When any Person acquires the properties and assets of the Servicer
substantially as a whole and becomes the successor to the Servicer in
accordance with the terms of this Section 6.03, then upon the satisfaction of
all of the other conditions of Section 5.04 and of this Section 6.03, the
Servicer shall automatically and without further notice be released from its
obligations hereunder.
Section 6.04. Assignment of Servicer's Obligations. The Servicer may not
assign its obligations hereunder to any successor unless either (i) the Rating
Agency Condition has been satisfied and the Commission has approved such
assignment, or (ii) the Servicer is replaced by a Successor Servicer pursuant
to Section 6.03.
Section 6.05. Limitation on Liability of Servicer and Others. (a) The
Servicer shall not be liable to the Issuer or any Trustee, except as provided
under this Agreement, for any action taken or for refraining from the taking
of any action pursuant to this Agreement or for errors in judgment; provided,
however, this provision shall not protect the Servicer against any liability
that would otherwise be imposed by reason of willful misconduct, bad faith or
gross negligence in the performance of its duties or by reason of reckless
disregard of obligations and duties under this Agreement; and provided further
that nothing in this Section 6.05 shall limit the Servicer's liabilities or
obligations of the Servicer to indemnify set forth in Section 6.02 of this
Agreement. The Servicer and any director, officer, employee or agent of the
Servicer may rely in good faith on the advice of counsel reasonably acceptable
to each Trustee or on any document of any kind, prima facie properly executed
and submitted by any Person, respecting any matters arising under this
Agreement.
(b) The Servicer acknowledges that the Commission has authority to
enforce all provisions of this Agreement for the benefit of Customers,
including without limitation the enforcement of Section 6.02(d).
(c) Except as provided in this Agreement, including without limitation
Section 6.02(d), the Servicer shall not be under any obligation to appear in,
prosecute or defend any legal action except as directly related to one of the
Servicer's enumerated duties in this Agreement or related to its obligation to
pay indemnification.
Section 6.06. FPL Not To Resign as Servicer. Subject to the provisions
of Sections 6.03 and 6.04, FPL shall not resign from the obligations and
duties imposed on it as Servicer under this Agreement except upon a
determination that the performance of its duties under this Agreement shall no
longer be permissible under applicable Requirements of Law. Notice of any such
determination permitting the resignation of FPL shall be communicated to the
Issuer, the Commission, each Trustee and each Rating Agency at the earliest
practicable time (and, if such communication is not in writing, shall be
confirmed in writing at the earliest practicable time), and any such
determination shall be evidenced by an Opinion of Counsel to such effect
delivered to the Issuer, the Commission and each Trustee concurrently with or
promptly after such notice. No such resignation shall become effective until a
Successor Servicer has been approved by the Commission and has assumed the
servicing obligations and duties hereunder of the Servicer in accordance with
Section 7.04.
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Section 6.07. Servicing Fee.
(a) In consideration for its services hereunder, until the Retirement
Date, the Servicing Fee for each Series of Storm-Recovery Bonds shall be
$326,000 per annum payable by the Issuer in semiannual installments in arrears
on each Payment Date pursuant to Section 8.02(d)(ii) of the Indenture. Upon
appointment of a Successor Servicer, the percentage set forth in the preceding
sentence shall be adjusted to the market rate for such services at such time,
provided that the percentage shall not exceed 0.6% of the initial Principal
Balance of each series of Storm-Recovery Bonds, unless the Commission has
approved the appointment of the Successor Servicer or the Commission does not
act to either approve or disapprove such appointment on or before the date
which is 45 days after notice of the proposed appointment of the Successor
Servicer is provided to the Commission in the same manner substantially as
provided in Section 8.01(b)(i). Any portion of the Servicing Fee not paid on
any Payment Date shall be added to the Servicing Fee payable on the subsequent
Payment Date.
(b) The Servicer and the Issuer acknowledge and agree that the
Servicer's actual collections of Storm Bond Repayment Charges on some days
might exceed the Servicer's deemed collections, and that the Servicer's actual
collections of Storm Bond Repayment Charges on other days might be less than
the Servicer's deemed collections. The Servicer and the Issuer further
acknowledge and agree that the amount of these variances are likely to be
small and are not likely to be biased in favor of over-remittances or
under-remittances. Consequently, so long as the Servicer faithfully makes all
daily remittances based on historical average days sales outstanding, as
provided for herein, the Servicer and the Issuer agree that no actual or
deemed investment earnings shall be payable in respect of such
over-remittances or under-remittances. However, the Servicer shall remit at
least annually to the Trustee, for the benefit of the Issuer, any late charges
received from Customers in respect of Storm Bond Repayment Charges.
(c) The parties hereto agree that the foregoing fees constitute a fair
and reasonable price for the obligations to be performed by the Servicer and
that such compensation, together with expenses paid pursuant to Section 6.08,
shall constitute an Operating Expense under the Indenture.
Section 6.08. Servicer Expenses. Except for filing fees and fees and
expenses for attorneys, accountants, printing or other professional services
retained by the Issuer (or procured by the Servicer on behalf of the Issuer)
to meet the Issuer's obligations under the Basic Documents and, if applicable,
any Additional Indenture or Subsequent Sale Agreement, the Servicer shall be
required to pay all expenses incurred by the Servicer in performing its
activities hereunder. Upon requisition to the Trustee and in accordance with
the priorities set forth in Section 8.02(d) of the Indenture and any
Additional Indenture, the Servicer may recover filing fees and fees and
expenses for attorneys, accountants, or other professional services as an
Operating Expense (in addition to the Servicing Fee specified in Section 6.07)
provided such services are customarily required, and provided in support of
the duties and activities of the Servicer set forth in this Agreement and the
terms of such arrangements are negotiated by the Servicer in good faith.
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Section 6.09. Subservicing. The Servicer may at any time appoint one or
more subservicers to perform all or any portion of its obligations as Servicer
hereunder subject to the Rating Agency Condition unless such subservicer is an
Affiliate of the Servicer. The Servicer shall notify the Rating Agencies of
any appointment of an Affiliate of the Servicer as a subservicer. The Servicer
shall remain obligated and be liable to the Issuer, each Trustee and the
Bondholders for the servicing and administering of the Storm-Recovery Property
in accordance with the provisions hereof without diminution of such obligation
and liability by virtue of the appointment of such subservicer and to the same
extent and under the same terms and conditions as if the Servicer alone were
servicing and administering the Storm-Recovery Property. The fees and expenses
of each subservicer shall be as agreed between the Servicer and its
subservicer from time to time, and none of the Issuer, the Customers, any
Trustee or the Bondholders shall have any responsibility therefor. Any such
appointment shall not constitute a Servicer resignation under Section 6.06. In
the event any subservicer participates in the "servicing function" within the
meaning of Item 1122 of Regulation AB, the Servicer shall be responsible for
obtaining from each subservicer and delivering to the Issuer any assessment of
compliance and attestation required to be delivered by the Servicer under
Section 3.04(a)(iv).
Section 6.10. No Servicer Advances. The Servicer shall not make any
advances of Interest on or Principal of any Series of Storm-Recovery Bonds.
Section 6.11. Protection of Title. The Servicer shall take such actions
and execute and file such filings and cause to be executed and filed such
filings, all in such manner and in such places as may be required by law to
fully preserve, maintain and protect the interests of the Issuer and each
Trustee in the Storm-Recovery Property, including all filings required under
the Statute and the UCC relating to the transfer of ownership of the
Storm-Recovery Property by the Seller to the Issuer or the security interest
granted by the Issuer to each Trustee in the applicable Storm-Recovery
Property. The Servicer shall deliver (or cause to be delivered) to the Issuer
and the Trustee file-stamped copies of, or filing receipts for, any document
filed as provided above, as soon as available following such filing.
ARTICLE SEVEN
DEFAULT
Section 7.01. Servicer Default. If any one of the following events
(each, a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to remit to the applicable
Trustee, on behalf of the Issuer, any funds actually collected as part
of the Storm-Recovery Property and required to be remitted pursuant to
Section 4.03 with respect to any Series of Storm-Recovery Bonds that
continues unremedied for a period of five Business Days after written
notice of such failure is received by the Servicer and the Commission
from the Issuer or the applicable Trustee; or
(b) any failure by the Servicer duly to observe or perform in any
material respect any other covenant or agreement of the Servicer set
forth in this Agreement, which failure:
20
(i) materially and adversely affects the Storm-Recovery
Property or the rights of the Bondholders, and
(ii) continues unremedied for a period of 60 days after
written notice of such failure has been given to the Servicer by
the Issuer, the Commission or by the applicable Trustee or after
discovery of such failure by an officer of the Servicer; or
(c) any representation or warranty made by the Servicer in this
Agreement proves to have been incorrect when made, which has a material
adverse effect on the Issuer or the Bondholders and which material
adverse effect continues unremedied for a period of 60 days after the
date on which written notice thereof has been given to the Servicer by
the Issuer, the Commission or the applicable Trustee or after discovery
of such failure by an officer of the Servicer, as the case may be; or
(d) an Insolvency Event occurs with respect to the Servicer;
then, and in each and every case, so long as the Servicer Default shall not
have been remedied, the Trustee shall, at the direction of the Holders of a
majority of the Outstanding Amount of the Storm-Recovery Bonds of any Series
or by the Commission, by notice then given in writing to the Servicer (a
"Termination Notice"), terminate all the rights and obligations (other than
the indemnification obligations set forth in Section 6.02 and the obligation
under Section 7.04 to continue performing its functions as Servicer until a
Successor Servicer is appointed) of the Servicer under this Agreement. In
addition, upon a Servicer Default, the Issuer and the applicable Trustee shall
be entitled to apply to the Commission or any court of competent jurisdiction
for sequestration and payment to the applicable Trustee of revenues arising
with respect to the applicable Storm-Recovery Property. The Trustee shall not
give a Termination Notice upon instruction of the Commission unless the Rating
Agency Condition is satisfied.
On or after the receipt by the Servicer of a Termination Notice, all
authority and power of the Servicer under this Agreement, whether with respect
to the Storm-Recovery Property, the related Storm-Recovery Charges or
otherwise, shall, upon appointment of a Successor Servicer pursuant to Section
7.04, without further action, pass to and be vested in such Successor Servicer
and, without limitation, each Trustee is hereby authorized and empowered to
execute and deliver, on behalf of the predecessor Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments,
and to do or accomplish all other acts or things necessary or appropriate to
effect the purposes of such Termination Notice, whether to complete the
transfer of the Storm-Recovery Property Records and related documents, or
otherwise. The predecessor Servicer shall cooperate with the Successor
Servicer, each Trustee and the Issuer in effecting the termination of the
responsibilities and rights of the predecessor Servicer under this Agreement,
including the transfer to the Successor Servicer for administration by it of
all cash amounts that shall at the time be held by the predecessor Servicer
for remittance, or shall thereafter be received by it with respect to the
Storm-Recovery Property or the related Storm-Recovery Charges. As soon as
practicable after receipt by the Servicer of such Termination Notice, the
Servicer shall deliver the Storm-Recovery Property Records to the Successor
Servicer. All reasonable costs and expenses (including attorneys fees and
expenses) incurred in connection with transferring the Storm-Recovery Property
Records to the Successor Servicer and amending this Agreement to reflect
21
such succession as Servicer pursuant to this Section 7.01 shall be paid by the
predecessor Servicer upon presentation of reasonable documentation of such
costs and expenses. Termination of FPL as Servicer shall not terminate FPL's
rights or obligations under the Sale Agreement or any other Basic Document to
which FPL is a party.
Section 7.02. Notice of Servicer Default. The Servicer shall deliver to
the Issuer, the Commission, each Trustee and each Rating Agency promptly after
having obtained knowledge thereof, but in no event later than five Business
Days thereafter, in an Officer's Certificate of any event or circumstance
which, with the giving of notice or the passage of time, would become a
Servicer Default under Section 7.01.
Section 7.03. Waiver of Past Defaults. The applicable Trustee, with the
written consent of the Commission and the consent of the Holders of the
majority of the Outstanding Amount of the Storm-Recovery Bonds of all Series,
may waive in writing any default by the Servicer in the performance of its
obligations hereunder and its consequences, except a default in making any
required Remittances to the applicable Trustee in accordance with this
Agreement. Upon any such waiver of a past default, such default shall cease to
exist, and any Servicer Default arising therefrom shall be deemed to have been
remedied for every purpose of this Agreement. No such waiver shall extend to
any subsequent or other default or impair any right consequent thereto.
Section 7.04. Appointment of Successor.
(a) Upon the Servicer's receipt of a Termination Notice pursuant to
Section 7.01 or the Servicer's resignation in accordance with the terms of
this Agreement, the predecessor Servicer shall continue to perform its
functions as Servicer under this Agreement and shall be entitled to receive
the requisite portion of the Servicing Fees, until a Successor Servicer has
assumed in writing the obligations of the Servicer hereunder pursuant to an
assumption agreement or pursuant to this Section 7.04. In the event of the
Servicer's removal or resignation hereunder, the Trustee(s), as assignee(s) of
the Issuer, at the direction of Holders of a majority of the Outstanding
Amount of the Storm-Recovery Bonds of all Series or of the Commission, shall
appoint a Successor Servicer, and the Successor Servicer shall accept its
appointment by a written assumption in form acceptable to the Issuer and the
Trustee. If, within 30 days after the delivery of the Termination Notice, a
Successor Servicer has not been appointed and accepted such appointment, the
Trustee, at the direction of the Holders of not less than a majority of the
Outstanding Amount of the Bonds, shall petition the Commission or a court of
competent jurisdiction to appoint a Successor Servicer under this Agreement. A
Person shall qualify as a Successor Servicer only if:
(i) such Person is permitted to perform the duties of the Servicer
pursuant to the Statute, the Commission Regulations, the Financing Order
and this Agreement;
(ii) the Rating Agency Condition has been satisfied;
(iii) such Person enters into a servicing agreement or agreements
with the Issuer and FPL having substantially the same provisions as this
Agreement, and additionally providing for such Person to service the Tax
Charges for the benefit of FPL; and
22
(iv) if applicable, its compensation is approved or acquiesced to
by the Commission pursuant to Section 6.07(a) hereof.
(b) Upon appointment, the Successor Servicer shall be the successor in
all respects to the predecessor Servicer under this Agreement and shall be
subject to all the responsibilities, duties and liabilities arising thereafter
relating thereto placed on the predecessor Servicer and shall be entitled to
the Servicing Fee and all the rights granted to the predecessor Servicer by
the terms and provisions of this Agreement.
(c) The Successor Servicer may resign only if it is prohibited from
serving as such by applicable law.
Section 7.05. Cooperation with Successor. The Servicer covenants and
agrees with the Issuer that it will, on an ongoing basis, cooperate with the
Successor Servicer and provide whatever information is, and take whatever
actions are, reasonably necessary to assist the Successor Servicer in
performing its obligations hereunder.
ARTICLE EIGHT
MISCELLANEOUS PROVISIONS
Section 8.01. Amendment.
(a) Subject to Section 8.01(b), this Agreement may be amended by the
Servicer and the Issuer, with the consent of each Trustee and the satisfaction
of the Rating Agency Condition. Promptly after the execution of any such
amendment or consent, the Issuer shall furnish written notification of the
substance of such amendment or consent to each of the Rating Agencies. Prior
to the execution of any amendment to this Agreement, the Issuer and each
Trustee shall be entitled to receive and rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by
this Agreement and the Opinion of Counsel referred to in Section 3.06. Subject
to Section 8.01(b), the Issuer and each Trustee may, but shall not be
obligated to, enter into any such amendment which affects their own rights,
duties or immunities under this Agreement or otherwise.
(b) Notwithstanding anything to the contrary in this Section 8.01, no
amendment or modification of this Agreement, nor any waiver required by
Section 7.03 hereof, shall be effective except upon satisfaction of the
conditions precedent in this paragraph (b).
(i) At least 15 days prior to the effectiveness of any such
amendment or modification and after obtaining the other necessary
approvals set forth in Section 8.01(a) (except that the consent of each
Trustee may be subject to the consent of Bondholders if such consent is
required or sought by the Trustee in connection with such amendment or
modification) or prior to the effectiveness of any waiver of a default
approved by the Holders of a majority of the Outstanding Amount of Bonds
of all Series as provided in Section 7.03, the Servicer shall have
delivered to the Commission's executive director and general counsel
written notification of any proposed amendment, which notification shall
contain:
23
(A) a reference to Docket No. 060038-EI;
(B) an Officer's Certificate stating that the proposed
amendment or modification has been approved by all parties to this
Agreement or alternatively, the waiver of default has been
approved by the Holders of a majority of the Outstanding Amount of
Bonds of all Series; and
(C) a statement identifying the person to whom the
Commission is to address any response to the proposed amendment or
to request additional time.
(ii) If the Commission or an authorized representative of the
Commission, within 15 days (subject to extension as provided in clause
(iii)) of receiving a notification complying with subparagraph (i),
shall have delivered to the office of the person specified in clause
(i)(C) a written statement that the Commission might object to the
proposed amendment or modification, or to the waiver of default, then,
subject to clause (iv) below, such proposed amendment or modification,
or the waiver of default, shall not be effective unless and until the
Commission subsequently delivers a written statement that it does not
object to such proposed amendment or modification.
(iii) If the Commission or an authorized representative of the
Commission, within 15 days of receiving a notification complying with
subparagraph (i), shall have delivered to the office of the person
specified in clause (i)(C) a written statement requesting an additional
amount of time not to exceed thirty days (or, in the case of a waiver of
default, 15 days) in which to consider such proposed amendment or
modification, then such proposed amendment or modification shall not be
effective if, within such extended period, the Commission shall have
delivered to the office of the person specified in clause (i)(C) a
written statement as described in subparagraph (ii), unless and until
the Commission subsequently delivers a written statement that it does
not object to such proposed amendment or modification.
(iv) If (A) the Commission or an authorized representative of the
Commission, shall not have delivered written notice that the Commission
might object to such proposed amendment or modification, or the waiver
of default, within the time periods described in subparagraphs (ii) or
(iii), whichever is applicable, or (B) the Commission or authorized
representative of the Commission, has delivered such written notice but
does not within 60 days of the delivery of the notification in (a)
above, provide subsequent written notice confirming that it does in fact
object and the reasons therefore or advise that it has initiated a
proceeding to determine what action it might take with respect to the
matter, then the Commission shall be conclusively deemed not to have any
objection to the proposed amendment or modification or waiver of
default, as the case may be, and such amendment or modification or
waiver of default, as the case may be, may subsequently become effective
upon satisfaction of the other conditions specified in Section 8.01(a).
(v) Following the delivery of a statement from the Commission or
an authorized representative of the Commission to the Servicer under
subparagraph (ii), the
24
Servicer and the Issuer shall have the right at any time to withdraw
from the Commission further consideration of any proposed amendment,
modification or waiver of default.
(c) For the purpose of this Section 8.01, an "authorized representative
of the Commission" means any person authorized to act on behalf of the
Commission, as evidenced by an Opinion of Counsel (which may be the general
counsel) to the Commission.
Section 8.02. Maintenance of Accounts and Records.
(a) The Servicer shall maintain accounts and records as to the
Storm-Recovery Property accurately and in accordance with its standard
accounting procedures.
(b) The Servicer shall permit each Trustee and its agents at any time
during normal business hours, upon reasonable notice to the Servicer and to
the extent it does not unreasonably interfere with the Servicer's normal
operations, to inspect, audit and make copies of and abstracts from the
Servicer's records regarding the Storm-Recovery Property and the
Storm-Recovery Charges. Nothing in this Section 8.02(b) shall affect the
obligation of the Servicer to observe any applicable law (including any
Commission Regulation) prohibiting disclosure of information regarding the
Customers, and the failure of the Servicer to provide access to such
information as a result of such obligation shall not constitute a breach of
this Section 8.02(b).
Section 8.03. Notices. Unless otherwise specifically provided herein,
all notices, directions, consents and waivers required under the terms and
provisions of this Agreement shall be in English and in writing, and any such
notice, direction, consent or waiver may be given by United States first-class
mail, reputable overnight courier service, facsimile transmission or
electronic mail (confirmed by telephone, United States first-class mail or
reputable overnight courier service in the case of notice by facsimile
transmission or electronic mail) or any other customary means of
communication, and any such notice, direction, consent or waiver shall be
effective when delivered or transmitted, or if mailed, five days after deposit
in the United States first-class mail with proper postage for first-class mail
prepaid,
(a) in the case of the Servicer, at Florida Power & Light Company
at 000 Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000, Attention:
Treasurer.
(b) in the case of the Issuer, at FPL Recovery Funding, LLC, 000
Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000, Attention: Treasurer;
(c) in the case of the Trustee, at the address provided for
notices or communications to the Trustee in the Indenture;
(d) in the case of Moody's, at Xxxxx'x Investors Service, Inc.,
ABS Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000;
(e) in the case of Standard & Poor's, to Standard & Poor's Ratings
Services, a Division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset Backed Surveillance
Department; and
25
(f) in the case of Fitch, at Fitch, Inc., 0 Xxxxx Xxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: ABS Surveillance;
(g) in the case of the Commission, Florida Public Services
Commission, 0000 Xxxxxxx Xxx Xxxx., Xxxxxxxxxxx, Xxxxxxx, 00000-0000,
Attention: Executive Director and General Counsel;
or, as to each of the foregoing, at such other address as shall be designated
by written notice to the other parties.
Section 8.04. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Servicer, the Issuer, the
Commission, on behalf of itself and Customers, and each Trustee, on behalf of
itself and the applicable Bondholders, and nothing in this Agreement, whether
express or implied, shall be construed to give to any other Person any legal
or equitable right, remedy or claim in any Collateral or under or in respect
of this Agreement or any covenants, conditions or provisions contained herein.
Notwithstanding anything to the contrary contained herein, for the avoidance
of doubt, any right, remedy or claim to which any Customer may be entitled
pursuant to the Financing Order and this Agreement may be asserted or
exercised only by the Commission for the benefit of such Customer.
Section 8.05. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
Section 8.06. Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 8.07. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 8.08. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA, WITHOUT REFERENCE TO ITS
CONFLICT OF LAWS PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 8.09. Assignment to the Trustee.
(a) The Servicer hereby acknowledges and consents to any pledge,
assignment and grant of a security interest by the Issuer to the Trustee
pursuant to the Indenture or to any Trustee pursuant to any Additional
Indenture, for the benefit of the applicable Bondholders and the Trustee, of
all right, title and interest of the Issuer in, to and under the
Storm-Recovery Property owned by the Issuer and the proceeds thereof and the
assignment of any or all of the Issuer's rights hereunder to such Trustee or
Trustees.
26
(b) In no event shall any Trustee have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder or in any of the certificates, notices or agreements
delivered pursuant hereto, as to all of which recourse shall be had solely to
the assets of the Issuer.
(c) The Trustee, in acting hereunder, is entitled to all rights,
benefits, protections, immunities and indemnities accorded to it under the
Indenture.
Section 8.10. Nonpetition Covenants. Notwithstanding any prior
termination of this Agreement, the Indenture or any Additional Indenture, the
Servicer hereby covenants and agrees that it shall not, prior to the date
which is one year and one day after the termination of the Indenture and any
Additional Indenture and the payment in full of the Storm-Recovery Bonds and
any other amounts owed under the Indenture or any Additional Indenture,
including any amounts owed to third-party credit enhancers, acquiesce in,
petition or otherwise invoke or cause the Issuer to invoke the process of any
Governmental Authority the purpose of commencing or sustaining an involuntary
case against the Issuer under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Issuer or any
substantial part of the property of the Issuer, or ordering the winding up or
liquidation of the affairs of the Issuer.
Section 8.11. Termination. This Agreement shall terminate when all
Series of Storm-Recovery Bonds have been retired, redeemed or legally defeased
in full in accordance with the Indenture and, if applicable, any Additional
Indenture. Notwithstanding the foregoing, the Servicer's obligations under
Section 6.02(c) and Section 6.02(d) to indemnify the Trustee and the
Commission, on behalf of Customers, shall survive termination of this
Agreement.
27
IN WITNESS WHEREOF, the parties hereto have caused this Storm-Recovery
Property Servicing Agreement to be duly executed by their respective officer
as of the day and year first above written.
FPL RECOVERY FUNDING LLC,
as Issuer
By: /s/ Xxxxx Xxxxxxxx
_____________________________________
Name: Xxxxx Xxxxxxxx
Title: Assistant Treasurer
FLORIDA POWER & LIGHT COMPANY,
as Servicer
By: /s/ Xxxxx Xxxxxxxx
_____________________________________
Name: Xxxxx Xxxxxxxx
Title: Assistant Treasurer
ACKNOWLEDGED AND ACCEPTED:
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President
EXHIBIT A
FORM OF DAILY REMITTANCE CERTIFICATE
Pursuant to Section 3.01(b)(i) of the Storm-Recovery Property Servicing
Agreement, dated as of May 22, 2007 (the "Agreement"), between FLORIDA
POWER & LIGHT COMPANY as servicer (the "Servicer"), and FPL RECOVERY FUNDING
LLC, the Servicer does hereby certify as follows:
Capitalized terms used herein have their respective meanings as set
forth in the Agreement. References herein to certain sections and subsections
are references to the respective sections of the Agreement.
In accordance with Section 4.03(a) of the Agreement, the Servicer will
remit to the Trustee for deposit in the Collection Account, on a daily basis,
an amount equal to the product of the Billed Storm-Recovery Charges for a
particular billing date multiplied by one hundred percent less the Estimated
Charge-Off Percent. Such product shall constitute the amount of the Estimated
Storm-Recovery Charge Payments. Such amount shall be deemed to have been
received by the Servicer on the day (the "Deemed Receipt Day") based upon the
Weighted Average Days Outstanding, i.e., Estimated Storm-Recovery Charge
Payments will be deemed to be received on the day which is the Weighted
Average Days Outstanding plus one following the billing date and such
Estimated Storm-Recovery Bond Charges shall be remitted on such Deemed Receipt
Day, or if such day is not a Servicer Business Day, on the next Servicer
Business Day, together with any Estimated Storm-Recovery Bond Charges for
which remittances have not been made.
Billing Date __/__/__
Deemed Receipt Day __/__/__
Remittance Date __/__/__
Billed Storm Recovery Charges $__________
100% - Estimated Charge-Off Percent _____%
Estimated Storm-Recovery Charge Payments $__________
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Daily Remittance Certificate this _____ day of __________.
By: __________________________________
Name:
Title:
A-1
EXHIBIT B
FORM OF ROUTINE (BI-ANNUAL) TRUE-UP ADJUSTMENT REQUEST
DATE:
Executive Secretary
Florida Public Service Commission
0000 Xxxxxxx Xxx Xxxx.
Xxxxxxxxxxx, XX 00000-0000
Re: Docket No. 060038-EI
Dear __________________:
As required by Section 366.8260(2)(b) of Florida Statutes xx.xx.
366.8260(1) through and including 366.8260(11) and pursuant to the Order
issued after rehearing on July 21, 2006 in Docket No. 060038-EI ("Financing
Order"), Florida Power & Light Company ("Company") as Servicer (or any
Successor Servicer) of the Senior Secured Bonds, Series A ("Bonds"), and on
behalf of The Bank of New York (the "Trustee") under the Indenture, dated as
of May 22, 2007 between FPL Recovery Funding LLC (the "Issuer") and the
Trustee, as assignee of the Issuer, hereby requests an adjustment to the storm
recovery bond repayment charges ("Storm-Recovery Charges") and the storm
recovery bond tax charges (the "Tax Charges").
This proposed adjustment is intended to satisfy Section 366.8260(2)(b)
and the Financing Order by ensuring that the Storm-Recovery Charges will
recover amounts sufficient to timely provide all payments of debt service and
other required amounts and charges in connection with the Bonds during the
upcoming Remittance Period. The proposed adjustments to the Tax Charges will
ensure recovery of the associated tax liability for the related Storm-Recovery
Charges.
Using the formula approved by the Florida Public Service Commission in
the Financing Order, this filing modifies the variables used in the
Storm-Recovery Charges and provides the resulting adjusted Storm-Recovery
Charges and Tax Charges. Attachments A-1 and A-2 show the resulting values of
the Storm-Recovery Charges and Tax Charges for each class of customers, as
calculated in accordance with the Financing Order, such charges to be
effective as of the first day of the upcoming Remittance Period. Pursuant to
Section 366.8260(2)(b) of the Statute, the allocation of Storm Recovery
Charges and Tax Charges has been made in accordance with the [rate
case/settlement agreement dated as of ____] The calculations and supporting
data for charges are appended to the Attachments.
In accordance with the Financing Order, the proposed adjustments to the
charges will be effective on the earlier of (i) [insert date 60 days after
letter date] or (ii) such date the Commission administratively approves the
adjustment, including, if applicable, the correction of any mathematical error
by the Commission.
Respectfully submitted,
Attachment
B-1
ATTACHMENT A-1
to EXHIBIT B
CALCULATION OF REVENUE REQUIREMENTS
Line
No. Description
-- ----------------------------------------------------------------------------------------------------------------------------
1 Storm Bond Repayment Charge (remitted to SPE)
----------------------------------------------------------------------------------------------------------------------------
2
3
4 True-up for the Current Remittance Period Beginning _____ and Ending _____:
5 Current Remittance Period Bond Revenue Requirements
6 Current Remittance Period Actual Daily Cash Receipt Transfers and Interest Income:
7 Daily Cash Receipts Transferred to the SPE (1)
8 Interest Income on Subaccounts at the SPE
9 Total Current Period Actual Daily Cash Receipts Transfers and Interest Income (Line 7 + 8)
10 (Over)/Under Collections of Current Remittance Period Requirements (Line 5 - 9)
11
12 Upcoming Remittance Period Beginning _____ and Ending _____
13 Principal
14 Interest
15 Servicing Costs
16 Other On-Going Costs
17 (Over)/Under Collections of Current Remittance Period Requirements (Line 10)
18
Total Periodic Bond Revenue Requirements to be Billed During Upcoming Remittance Period
(Line 13+14+15+16-/+17)
19
20 Forecasted kWh Sales for the Upcoming Remittance Period (adjusted for uncollectibles)
21 Average Retail Storm Bond Repayment Charge (Current and Forecasted) per kWh (Line 18 / 20)
22
23
24 Storm Bond Tax Charge (retained at FPL)
----------------------------------------------------------------------------------------------------------------------------
25
26
27 True-up for the Current Remittance Period Beginning _____ and Ending _____:
28 Current Remittance Period Revenue Requirements
29 Current Remittance Period Revenue
30 (Over)/Under Collections of Current Remittance Period Requirements (Line 28 - 29)
31
32 Upcoming Remittance Period Beginning _____ and Ending _____:
33 Principal Payment (Line 13) less Amortization of Debt Issuance Costs * (1-Tax Rate) * Tax Rate
34
35 Total Periodic Tax Requirement to be Billed During Upcoming Remittance Period (Line 30 + 33)
36 Forecasted kWh Sales for the Upcoming Remittance Period (adjusted for uncollectibles)
37 Average Retail Storm Bond Tax Charge (Current and Forecasted) per kWh (line 35 / 36)
38
39
40 Total Average Retail Storm Charge (Current and Forecasted) per kWh (Line 21 + 37) (2)
Current Factors to
be Billed through
the End of the Factors to be Billed
Calculation of the Current in the Upcoming
Line True-Up Remittance Period Remittance Period
No. (1) (2) (1) - (2) = (3)
-- ------------------------ ------------------------- ---------------------------
1
2
3
4
------------------------
5
------------------------
6
7
8
------------------------
9
------------------------
10
========================
11
12
13
14
15
16
17
------------------------ ------------------------- ---------------------------
18
======================== ========================= ===========================
19
20
======================== ========================= ===========================
21
======================== ========================= ===========================
22
23
24
25
26
27
28
29
------------------------
30
========================
31
32
------------------------
33
========================
34
35
======================== ========================= ===========================
36
======================== ========================= ===========================
37
======================== ========================= ===========================
38
39
40
======================== ========================= ===========================
Notes:
------
(1) Includes estimated daily cash transfers between measurement date and the
end of the current remittance period.
(2) Resulting charges as a result of allocation of this amount to each rate
class are shown on Attachment 2.
Attachment A-1-1 to Exhibit B
ATTACHMENT A-2
to EXHIBIT B
RESULTING STORM BOND REPAYMENT CHARGE
AND STORM BOND TAX CHARGE
-------------------------------------------------------------------------------------------------------------------------
Storm Bond Storm Bond Tax
Rate Schedule Repayment Charge Charge Total Storm Charges
-------------------------------------------------------------------------------------------------------------------------
XX-0, XXX-0
XX-0, XXX-0, XXXX-1
GSD-1, GSDT-1,
HLTF (21-499 KW)
XXXX-0, XXXXX-0,
HLTF (500-1,999 KW)
XX-0, XXX-0
XXXX-0, XXXXX-0,
HLTF (2000+KW)
XX-0, XXX-0
XXXX-0, XXXXX-0,
XX-0, XXX-0
XX-0
MET
CILC-1(G)
CILC-1(D)
CILC-1(T)
XX-0, XX-0
XX-0
XX-0, XXXX0
XXX-0(X), XXXX-0(X)
SST-1(D1), SST-1(D2)
SST-1(D3), ISST-1(D)
-------------------------------------------------------------------------------------------------------------------------
Attachment A-2-1 to Exhibit B
EXHIBIT C
FORM OF MONTHLY SERVICER CERTIFICATE
Pursuant to Section 3.01(b)(ii) of the Storm-Recovery Property Servicing
Agreement, dated as of May 22, 2007 (the "Agreement"), between FLORIDA POWER
& LIGHT COMPANY as servicer (the "Servicer"), and FPL RECOVERY FUNDING LLC,
the Servicer does hereby certify as follows:
Capitalized terms used herein have their respective meanings as set
forth in the Agreement.
For the Monthly Period Ending:_____________
X. Xxxxxxxx and Remittances:
a) kWh Consumption during Month:
b) Applicable Storm-Recovery Charges:
c) Total Storm-Recovery Charges Amount Invoiced this Month:
d) Cumulative Storm-Recovery Charges Amount Invoiced this Remittance Period:
e) Total Storm-Recovery Charges Remitted this Month:
f) Cumulative Storm-Recovery Charges Amount Remitted this Remittance Period:
B. Balances in Subaccounts (at end of month):
a) Collection Account Balance:
b) Excess Funds Subaccount Balance:
c) Capital Subaccount Balance:
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Monthly Servicer Certificate this __ day of __________.
FLORIDA POWER & LIGHT COMPANY,
as Servicer
By: ____________________________________
Name:
Title:
C-1
EXHIBIT D
FORM OF CERTIFICATE OF COMPLIANCE
The undersigned hereby certifies that he/she is the duly elected and
acting ________ of FLORIDA POWER & LIGHT COMPANY, as servicer (the "Servicer")
under the Storm-Recovery Property Servicing Agreement, dated as of May 22,
2007 (the "Servicing Agreement"), between the Servicer and FPL RECOVERY
FUNDING LLC (the "Issuer"), and further certifies on behalf of the Servicer
that:
1. A review of the activities of the Servicer and of its performance
under the Servicing Agreement during the twelve months ended December 31,
_____ has been made under the supervision of the undersigned pursuant to
Section 3.04 of the Servicing Agreement; and
2. To the undersigned's knowledge, based on such review, the Servicer
has fulfilled all of its material obligations in all material respects under
the Servicing Agreement throughout the twelve months ended December 31, ___,
except as listed on Annex A hereto. [or describe any Event of Default, or any
act or omission, which with either the passage of time or the giving of
notice, could become an Event of Default]
Executed as of this ___ day of ________.
By: ____________________________________
Name:
Title:
D-1
ANNEX A TO EXHIBIT D
LIST OF ACTUAL OR POTENTIAL SERVICER EVENTS OF DEFAULTS
Nature of Actual or
Potential Event of
Default Status
------------------------- ------------
Annex A to Exhibit D
EXHIBIT E
FORM OF ASSESSMENT OF SERVICING CRITERIA
1. I, ________________________________, the _______________________ of
the Servicer, am responsible for assessing the Servicer's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the "Servicing
Criteria").
2. With respect to each of the Servicing Criteria, I have made the
following assessment of the Servicing Criteria in accordance with Item 1122(d)
of Regulation AB, with such discussion regarding the performance of such
Servicing Criteria during the fiscal year covered by the Issuer's Form 10-K
Report (such fiscal year, the "Assessment Period"):
--------------------------------------------------------------------------------------------------------------
Applicable
Servicing Criteria Servicing Criteria
--------------------------------------------------------------------------------------------------------------
Reference Criteria
--------------------------------------------------------------------------------------------------------------
General Servicing Considerations
--------------------------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to Applicable;
monitor any performance or other triggers assessment below.
and events of default in accordance with
the transaction agreements.
--------------------------------------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are Not applicable; no
outsourced to third parties, policies and servicing activities
procedures are instituted to monitor the were outsourced.
third party's performance and compliance
with such servicing activities.
--------------------------------------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction Not applicable;
agreements to maintain a back-up servicer documents do not
for the storm-recovery property are provide for a
maintained. back-up servicer.
--------------------------------------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions Not applicable; rules
policy is in effect on the party of the Florida
participating in the servicing function commission govern
throughout the reporting period in the performance
amount of coverage required by and requirements of
otherwise in accordance with the terms of persons handling
the transaction agreements. customer collections.
--------------------------------------------------------------------------------------------------------------
E-1
--------------------------------------------------------------------------------------------------------------
Applicable
Servicing Criteria Servicing Criteria
--------------------------------------------------------------------------------------------------------------
Reference Criteria
--------------------------------------------------------------------------------------------------------------
Cash Collection and Administration
--------------------------------------------------------------------------------------------------------------
1122(d)(2)(i) Payments on storm-recovery property are Applicable;
deposited into the appropriate custodial assessment below.
bank accounts and related bank clearing
accounts no more than two business days
following receipt, or such other number
of days specified in the transaction
agreements.
--------------------------------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on Applicable;
behalf of an obligor or to an investor assessment below.
are made only by authorized personnel.
--------------------------------------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding Applicable, but no
collections, cash flows or distributions, current assessment
and any interest or other fees charged required; no advances
for such advances, are made, reviewed and by the Servicer or
approved as specified in the transaction the Trustee are
agreements. permitted under the
transaction documents.
--------------------------------------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for the transaction, Applicable, but no
such as cash reserve accounts or accounts current assessment is
established as a form of required; no reserve
overcollateralization, are separately accounts are held by
maintained (e.g., with respect to the Servicer.
commingling of cash) as set forth in the Reserve and other
transaction agreements. transaction accounts
are maintained and
applied by the
Trustee in accordance
with the Indenture.
--------------------------------------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained at a Applicable, but no
federally insured depository institution current assessment
as set forth in the transaction required; all "custodial
agreements. For purposes of this accounts" were
criterion, "federally insured depository maintained by the
institution" with respect to a foreign Trustee and invested in
financial institution means a foreign accordance
financial
--------------------------------------------------------------------------------------------------------------
E-2
--------------------------------------------------------------------------------------------------------------
Applicable
Servicing Criteria Servicing Criteria
--------------------------------------------------------------------------------------------------------------
Reference Criteria
--------------------------------------------------------------------------------------------------------------
institution that meets the with indenture
requirements of Rule 13k-1(b)(1) of the requirements.
Securities Exchange Act.
--------------------------------------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to Not applicable; all
prevent unauthorized access. transfers made by
wire transfer.
--------------------------------------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly Partially applicable;
basis for all asset-backed securities reconciliations of
related bank accounts, including estimated remittances
custodial accounts and related bank of storm-recovery
clearing accounts. These reconciliations charge remittances
are (A) mathematically accurate; with actual
(B) prepared within 30 calendar days storm-recovery bond
after the bank statement cutoff date, or collections are made
such other number of days specified in on an annual basis as
the transaction agreements; (C) reviewed required by
and approved by someone other than the Section 4.03 of the
person who prepared the reconciliation; Servicing Agreement.;
and (D) contain explanations for assessment below
reconciling items. These reconciling
items are resolved within 90 calendar
days of their original identification, or
such other number of days specified in
the transaction agreements.
--------------------------------------------------------------------------------------------------------------
Investor Remittances and Reporting
--------------------------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to Applicable;
be filed with the Commission, are assessment below.
maintained in accordance with the
transaction agreements and applicable
Commission requirements. Specifically,
such reports (A) are prepared in
accordance with timeframes and other
terms set forth in the transaction
agreements; (B) provide information
calculated in accordance with the terms
specified in the transaction agreements;
(C) are filed with the Commission as
required by its rules and regulations;
and (D) agree with investors' or the
trustee's records as to the total unpaid
principal balance and number of pool
assets serviced by the Servicer.
--------------------------------------------------------------------------------------------------------------
E-3
--------------------------------------------------------------------------------------------------------------
Applicable
Servicing Criteria Servicing Criteria
--------------------------------------------------------------------------------------------------------------
Reference Criteria
--------------------------------------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated Applicable;
and remitted in accordance with assessment below.
timeframes, distribution priority and
other terms set forth in the transaction
agreements.
--------------------------------------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are Not applicable;
posted within two business days to the transaction documents
Servicer's investor records, or such do not permit
other number of days specified in the Servicer to disburse
transaction agreements. payments to
investors.
--------------------------------------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the Not applicable;
investor reports agree with cancelled bondholders are paid
checks, or other form of payment, or by the Trustee in
custodial bank statements. accordance with terms
of the Indenture.
--------------------------------------------------------------------------------------------------------------
Pool Asset Administration
--------------------------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on storm-recovery Applicable;
property is maintained as required by the assessment below.
transaction agreements or related
documents.
--------------------------------------------------------------------------------------------------------------
1122(d)(4)(ii) Storm-recovery property and related Applicable;
documents are safeguarded as required by assessment below.
the transaction agreements.
--------------------------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions Applicable but no
to the asset pool are made, reviewed and current assessment
approved in accordance with any required; no removals
conditions or requirements in the or substitutions of
transaction agreements. pool assets are
contemplated or
allowed under the
transaction documents.
--------------------------------------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on pool assets, including any Applicable;
payoffs, made in accordance with the assessment below.
related storm-recovery property documents
are posted to the Servicer's obligor
records
--------------------------------------------------------------------------------------------------------------
E-4
--------------------------------------------------------------------------------------------------------------
Applicable
Servicing Criteria Servicing Criteria
--------------------------------------------------------------------------------------------------------------
Reference Criteria
--------------------------------------------------------------------------------------------------------------
maintained no more than two business days
after receipt, or such other number of days
specified in the transaction agreements, and
allocated to principal, interest or other items
(e.g., escrow) in accordance with the related
storm-recovery documents.
--------------------------------------------------------------------------------------------------------------
1122(d)(4)(v) The Servicer's records regarding the Not applicable;
storm-recovery property agree with the because underlying
Servicer's records with respect to an obligation
obligor's unpaid principal balance. (storm-recovery
charge) is not an
interest bearing
instrument
--------------------------------------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or Applicable;
status of an obligor's storm-recovery assessment below.
property are made, reviewed and approved
by authorized personnel in accordance
with the transaction agreements and
related pool asset documents.
--------------------------------------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions Applicable;
(e.g., forbearance plans, modifications assessment below.
and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable)
are initiated, conducted and concluded in
accordance with the timeframes or other
requirements established by the transaction
agreements.
--------------------------------------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection efforts Applicable, but does
are maintained during the period any pool not require
asset is delinquent in accordance with assessment. No
the transaction agreements. Such records explicit
are maintained on at least a monthly documentation
basis, or such other period specified in requirement with
the transaction agreements, and describe respect to delinquent
the entity's activities in monitoring accounts are imposed
delinquent storm-recovery charges under the
including, for example, phone calls, transactional
letters and payment rescheduling plans in documents due to
cases where delinquency is deemed availability of
temporary (e.g., illness or unemployment). "true-up" mechanism;
and any such
documentation is
maintained in accordance
with applicable Florida
commission rules and
regulations.
--------------------------------------------------------------------------------------------------------------
E-5
--------------------------------------------------------------------------------------------------------------
Applicable
Servicing Criteria Servicing Criteria
--------------------------------------------------------------------------------------------------------------
Reference Criteria
--------------------------------------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of Not applicable;
return for storm-recovery property with storm-recovery
variable rates are computed based on the charges are not
related storm-recovery property documents. interest bearing
instruments.
--------------------------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an Applicable, but does
obligor (such as escrow accounts): not require
(A) such funds are analyzed, in assessment; Servicer
accordance with the obligor's maintains customer
storm-recovery property documents, on at deposits in
least an annual basis, or such other accordance with the
period specified in the transaction Florida commission
agreements; (B) interest on such funds is rules and regulations.
paid, or credited, to obligors in
accordance with applicable storm-recovery
property documents and state laws; and
(C) such funds are returned to the
obligor within 30 calendar days of full
repayment of the related storm-recovery
property, or such other number of days
specified in the transaction agreements.
--------------------------------------------------------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor Not applicable.
(such as tax or insurance payments) are
made on or before the related penalty or
expiration dates, as indicated on the
appropriate bills or notices for such
payments, provided that such support has
been received by the servicer at least 30
calendar days prior to these dates, or
such other number of days specified in
the transaction agreements.
--------------------------------------------------------------------------------------------------------------
1122(d)(4)(xii) Any late payment penalties in connection Not applicable;
with any payment to be made on behalf of servicer cannot make
an obligor are paid from the servicer's advances of its own
funds and not charged to the obligor, funds on behalf of
unless the late payment was due to the customers under the
obligor's error or omission. transactional
documents.
--------------------------------------------------------------------------------------------------------------
E-6
--------------------------------------------------------------------------------------------------------------
Applicable
Servicing Criteria Servicing Criteria
--------------------------------------------------------------------------------------------------------------
Reference Criteria
--------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an Not applicable;
obligor are posted within two business servicer cannot make
days to the obligor's records maintained advances of its own
by the servicer, or such other number of funds on behalf of
days specified in the transaction customers to pay
agreements. principal or interest
on the bonds. Servicer
may make advances of
attorney/ accountant
fees to defend
storm-recovery property.
--------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and Applicable;
uncollectible accounts are recognized and assessment below.
recorded in accordance with the
transaction agreements.
--------------------------------------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other Not Applicable: No
support, identified in Item 1114(a)(1) external credit
through (3) or Item 1115 of Regulation support or
AB, is maintained as set forth in the derivatives were
transaction agreements. employed.
--------------------------------------------------------------------------------------------------------------
3. Based on such review, and to the best of my knowledge, the Servicer
is in compliance in all material respects with the applicable servicing
criteria set forth above for the Assessment Period, [with the exception of the
following instance(s) of material noncompliance:]
1. [Include narrative of any material noncompliance with servicing
obligations]
4. The registered public accounting firm's attestation report has been
issued in accordance with Section 1122(b) of Regulation AB for such fiscal
year.
Executed this _____ day of _____, ____.
FLORIDA POWER & LIGHT COMPANY,
as Servicer
Date:
E-7
By:____________________________________
Name:
Title:
E-8
EXHIBIT F
EXPECTED SINKING FUND SCHEDULE
F-1
EXHIBIT G
FORM OF SEMIANNUAL SERVICER CERTIFICATE
Pursuant to Section 3.01(b)(iii) of the Storm-Recovery Property
Servicing Agreement, dated as of May 22, 2007 (the "Agreement"), between
FLORIDA POWER & LIGHT COMPANY, as servicer and FPL RECOVERY FUNDING LLC, the
Servicer does hereby certify, for the ________, 20__ Payment Date, as follows:
Capitalized terms used herein have their respective meanings as set
forth in the Agreement. References herein to certain sections and subsections
are references to the respective sections of the Agreement, unless otherwise
indicated.
1. Estimated Storm-Recovery Charges and Aggregate Amounts Available for the
Current Payment Date:
i. Amount Remitted [Month] [Year]:
ii. Amount Remitted [Month] [Year]:
iii. Amount Remitted [Month] [Year]:
iv. Amount Remitted [Month] [Year]:
v. Amount Remitted [Month] [Year]:
vi. Amount Remitted [Month] [Year]:
vii. Total Amount Remitted for this Period (sum of i. through
vi. above):
viii. Net Earnings on Collection Account:
ix. Operating Expenses Paid to Date:
x. General Subaccount Balance (sum of vii. and viii. above minus
ix.):
xi. Excess Funds Subaccount Balance:
xii. Capital Subaccount Balance:
xiii. Collection Account Balance (sum of x. through xiii. above):
2. Principal Balance Outstanding as of Prior Payment Date by Tranche:
i. Tranche A-1
ii. Tranche A-2
iii. Tranche A-3
iv. Tranche A-4
v. Total:
3. Required Funding/Payments as of Current Payment Date:
a) Projected Principal Balances and Payments
Projected Principal Balance Principal Due
--------------------------------- -------------------
i. Tranche A-1
ii. Tranche A-2
iii. Tranche A-3
iv. Tranche A-4
v. Total:
G-1
b) Required Interest Payments
Days in
Interest Rate Applicable Period Interest Due
------------------- ----------------------- ------------------
i. Tranche A-1
ii. Tranche A-2
iii. Tranche A-3
iv. Tranche A-4
v. Total:
c) Projected Subaccount Payments and Levels
Capital Subaccount Funding Projected Level Funding Required
------------------------------ ------------------- --------------------
4. Allocation of Remittances as of Current Payment Date Pursuant to Section
8.02 of Indenture:
a) Operating Expenses
i. Trustee Fees and Expenses:
ii. Servicing Fee:
iii. Administration Fee:
iv. Other Operating Expenses (subject to [ $ _____ ] cap):
v. Total:
b) Interest
Aggregate
---------------
i. Tranche A-1
ii. Tranche A-2
iii. Tranche A-3
iv. Tranche A-4
v. Total:
G-2
c) Principal
Aggregate
---------------
i. Tranche A-1
ii. Tranche A-2
iii. Tranche A-3
iv. Tranche A-4
v. Total:
d) Other Payments
i. Operating Expenses (in excess of [$______]):
ii. Funding of Capital Subaccount (to required amount):
iii. Interest Earnings on Capital Subaccount to FPL Recovery Funding
LLC
iv. Deposits to Excess Funds Subaccount:
v. Total:
5. Outstanding Principal Balance and Collection Account Balance as of
Current Payment Date (after giving effect to payments to be made on such
Payment Date):
a) Principal Balance Outstanding:
i. Tranche A-1
ii. Tranche A-2
iii. Tranche A-3
iv. Tranche A-4
v. Total:
b) Collection Account Balances Outstanding:
i. Capital Subaccount:
ii. Excess Funds Subaccount:
iii. Total:
6. Shortfalls in Interest and Principal Payments as of Current Payment Date
(if applicable):
a) Interest Shortfall
i. Tranche A-1
ii. Tranche A-2
iii. Tranche A-3
iv. Tranche A-4
v. Total:
G-3
b) Principal Shortfall
i. Tranche A-1
ii. Tranche A-2
iii. Tranche A-3
iv. Tranche A-4
v. Total:
7. Shortfalls in Capital Subaccount as of Current Payment Date (if
applicable):
8. Storm-Recovery Charges In Effect (By Class) For This Period:
G-4
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Semiannual Servicer Certificate this __ day of __________.
FLORIDA POWER & LIGHT COMPANY,
as Servicer
By:____________________________________
Name:
Title:
G-5
EXHIBIT H
PROCEEDINGS
H-1
ANNEX I
SERVICING PROCEDURES
The Servicer agrees to comply with the following servicing procedures:
Section 1. Definitions
Capitalized terms used herein and not otherwise defined herein shall
have the meanings set forth in the Agreement.
Section 2. Data Acquisition
(a) Installation and Maintenance of Meters. The Servicer shall cause
to be installed, replaced and maintained meters in accordance with the
Servicer Policies and Practices.
(b) Meter Reading. In accordance with the Servicer Policies and
Practices, the Servicer shall obtain usage measurements for each Customer or
determine any Customer's usage on the basis of estimates in accordance with
Commission Regulations.
(c) Cost of Metering. The Issuer shall not be obligated to pay any
costs associated with the metering duties set forth in this Section 2,
including the costs of installing, replacing and maintaining meters, nor shall
the Issuer be entitled to any credit against the Servicing Fee for any cost
savings realized by the Servicer as a result of new metering and/or billing
technologies.
Section 3. Usage and Xxxx Calculation
The Servicer shall obtain a calculation of each Customer's usage (which
may be based on data obtained from such Customer's meter read or on usage
estimates determined in accordance with Commission Regulations) in accordance
with the Servicer Policies and Practices and shall determine therefrom Billed
Storm-Recovery Charges.
Section 4. Billing
(a) Commencement of Billing. The Servicer shall implement the
Storm-Recovery Charges as of the date following Closing Date for any Series of
Storm-Recovery Bonds and shall thereafter xxxx each Customer for each
Customer's Billed Storm-Recovery Charges in accordance with the provisions of
this Section 4.
(b) Frequency of Bills; Billing Practices. In accordance with the
Servicer Policies and Practices, the Servicer shall generate and issue a Xxxx
to each Customer. In the event that the Servicer makes any material
modification to the Servicer Policies and Practices, it shall notify the
Issuer, the Trustee and the Rating Agencies as soon as practicable, and in no
event later than 60 Servicer Business Days after such modification goes into
effect, but the Servicer may not make any modification that will materially
adversely affect the Bondholders.
Annex I-1
(c) Format.
(i) The Customer's Xxxx will contain a separate line item
identifying the monthly charge representing the Storm Recovery Property.
The Customer's Xxxx shall contain in text or in a footnote, text
substantially to the effect that the monthly charge representing Storm
Recovery Property has been approved by the Financing Order, and that a
portion of the monthly charge is being collected by the Servicer, as
servicer, on behalf of the Issuer as owner of the Storm-Recovery
Property.
(ii) The Servicer shall conform to such requirements in respect of
the format, structure and text of Bills delivered to Customers as
Commission Regulations shall from time to time prescribe. To the extent
that Xxxx format, structure and text are not prescribed by applicable
law or by Commission Regulations, the Servicer shall, subject to clause
(i) of this subsection (c), determine the format, structure and text of
all Bills in accordance with its reasonable business judgment, the
Servicer Policies and Practices and historical practice.
(d) Delivery. Except as provided in the next sentence, the Servicer
shall deliver all Bills to Customers (i) by United States mail in such class
or classes as are consistent with the Servicer Policies and Practices or (ii)
by any other means, whether electronic or otherwise, that the Servicer may
from time to time use in accordance with the Servicer Policies and Practices.
The Servicer shall pay from its own funds all costs of issuance and delivery
of all Bills that it renders, including printing and postage costs as the same
may increase or decrease from time to time.
Section 5. Customer Service Functions
The Servicer shall handle all Customer inquiries and other Customer
service matters according to the Servicer Policies and Practices.
Section 6. Collections; Payment Processing; Remittance
(a) Collection Efforts, Policies, Procedures.
(i) The Servicer shall collect Billed Storm-Recovery Charges
(including late charges in respect of Storm Recovery Charges) from
Customers as and when the same become due in accordance with such
collection procedures as it follows with respect to comparable assets
that it services for itself or others including, in accordance with
Commission Regulations and the Servicer Policies and Practices, that:
(A) The Servicer shall prepare and deliver overdue notices
to Customers.
(B) The Servicer shall deliver past-due and shut-off
notices.
(C) The Servicer may employ the assistance of collection
agents.
Annex I-2
(D) The Servicer shall apply Customer deposits to the
payment of delinquent accounts.
(ii) The Servicer shall not waive any late payment charge or any
other fee or charge relating to delinquent payments, if any, or waive,
vary or modify any terms of payment of any amounts payable by a
Customer, in each case unless such waiver or action: (A) would be in
accordance with the Servicer Policies and Practices and (B) would comply
in all material respects with applicable law.
(iii) The Servicer shall accept payment from Customers in respect
of Billed Storm-Recovery Charges in such forms and methods and at such
times and places in accordance with the Servicer Policies and Practices.
(b) Payment Processing, Allocation, Priority of Payments. The Servicer
shall post all payments received to Customer accounts as promptly as
practicable, and, in any event, substantially all payments shall be posted no
later than two Servicer Business Days after receipt.
(c) Investment of Estimated Storm-Recovery Charge Payments Received.
Prior to remittance on the applicable Remittance Date, the Servicer may invest
Estimated Storm-Recovery Charges Payments at its own risk and for its own
benefit, and such investments and funds shall not be required to be segregated
from the other investments and funds of the Servicer. The Servicer shall be
entitled to retain as additional compensation any interest earnings on
Estimated Storm-Recovery Charges Payments invested by it.
(d) Calculation of Estimated Storm-Recovery Charge Payments and
Estimated Storm-Recovery Charge Payments; Remittances. In accordance with
Section 4.03(a) of the Agreement, the Servicer will remit to the Trustee for
deposit in the Collection Account, on a daily basis, an amount equal to the
product of the Billed Storm-Recovery Charges for a particular billing date
multiplied by one hundred percent less the Estimated Charge-Off Percent. Such
product shall constitute the amount of the Estimated Storm-Recovery Charge
Payments. Such amount shall be deemed to have been received by the Servicer on
the day (the "Deemed Receipt Day") based upon the Weighted Average Days
Outstanding, i.e., Estimated Storm-Recovery Charge Payments will be deemed to
be received on the day which is the Weighted Average Days Outstanding plus one
following the billing date and such Estimated Storm-Recovery Bond Charges
shall be remitted on such Deemed Receipt Day, or if such day is not a Servicer
Business Day, on the next Servicer Business Day, together with any Estimated
Storm-Recovery Bond Charges for which remittances have not been made.
Pursuant to Section 4.03(b) of the Agreement, on or before March 1 of
each year, the Servicer shall reconcile actual Storm-Recovery Charge
collections (including any late charges) with Estimated Storm-Recovery Charge
Payments remitted during the previous two Remittance Periods. Not less often
than semi-annually in connection with each Routine True-Up Adjustment Request,
the Servicer shall recalculate the Weighted Average Days Outstanding and the
Deemed Charge-Off Percentage.
Annex I-3
(e) Remittances.
(i) The Issuer shall cause to be established the Collection
Account in the name of the Trustee in accordance with Section 8.02 of
the Indenture.
(ii) The Servicer shall make or cause to be made Remittances to
the Collection Account in accordance with Section 4.03 of the Agreement.
(iii) Any change of account or change of institution affecting the
Collection Account shall not take effect until the Issuer has provided
at least 15 Servicer Business Days written notice thereof to the
Servicer.
(f) Partial Collections. Upon a partial payment of amounts billed,
including amounts billed under special contracts, such partial payments shall
be allocated ratably among the Storm-Recovery Charges, the Tax Charge and the
Seller's other billed amounts (including any accrued interest and late fees),
in chronological order of their due date, based on the ratio of each component
of the xxxx to the total xxxx. If more than one Series of Storm-Recovery Bonds
are Outstanding, partial payments allocable to Storm-Recovery Charges shall be
allocated pro rata based upon the amount of Storm Recovery Charges owing with
respect to each Series.
(g) No Advances. The Servicer shall not be obligated to advance any of
its own funds to the Issuer.
Annex I-4
APPENDIX A
MASTER DEFINITIONS
Unless the context otherwise requires:
With respect to all terms contained herein, unless the context otherwise
requires: (i) a term has the meaning assigned to it; (ii) an accounting term not
otherwise defined has the meaning assigned to it in accordance with generally
accepted accounting principles as in effect from time to time in the United
States; (iii) "or" is not exclusive; (iv) "including" means including without
limitation; (v) words in the singular include the plural and words in the plural
include the singular; (vi) any agreement, instrument or statute defined or
referred to herein or in any instrument or certificate delivered in connection
herewith means such agreement, instrument or statute as from time to time
amended, modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments incorporated
therein; (vii) references to a Person are also to its successors and permitted
assigns; (viii) the words "hereof", "herein" and "hereunder" and words of
similar import when used in any Basic Document shall refer to such Basic
Document as a whole and not to any particular provision of such Basic Document;
(ix) Section, subsection, Schedule and Exhibit references in any Basic Document
are references to Sections, subsections, Schedules and Exhibits in or to such
Basic Document unless otherwise specified; (x) references to "writing" include
printing, typing, lithography and other means of reproducing words in a visible
form; and (xi) the term "proceeds" has the meaning set forth in the applicable
UCC.
Act has the meaning specified in Section 11.03(a) of the Indenture.
Additional Bonds means each Series of storm-recovery bonds, if any, other
than the Bonds, issued by the Issuer pursuant to the Financing Order.
Additional Indenture means any indenture entered into between the Issuer
and the applicable trustee in connection with the issuance of any Additional
Bonds.
Additional Related Agreements has the meaning set forth in the Fourth
Preamble to the Administration Agreement.
Adjustment Request means any filing made with the Commission by the
Servicer on behalf of the Issuer for a Periodic Adjustment.
Administration Agreement means the Administration Agreement dated as of
May 22, 2007, between the Administrator and the Issuer.
Administrator means FPL, as administrator under the Administration
Agreement.
AES means an alternative energy supplier which is authorized by law to
sell electric service to a customer using the transmission or distribution
system of FPL.
Affiliate means, with respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this
definition, control when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms controlling and controlled have meanings correlative to
the foregoing.
Allocable Share means with respect to any Operating Expense which is not
specifically attributable to any Series of Storm-Recovery Bonds (by contract,
invoice or otherwise), for each Series of Storm-Recovery Bonds, the proportion
of such Operating Expenses which represents the same amount which the
Outstanding Amount of such Series of Storm-Recovery Bonds bears to the aggregate
Outstanding Amount of all Storm-Recovery Bonds as of the date of such
determination, all as calculated by the Servicer.
Alternative Grant has the meaning specified in the Granting Clause of the
Indenture.
Annual Accountant's Report has the meaning set forth in Section 3.04 of
the Servicing Agreement.
Authenticating Agent means each authenticating agent appointed pursuant to
Section 2.15 of the Indenture.
Authorized Denominations means, with respect to any Tranche of Bonds,
$100,000 and integral multiples of $1,000 above that amount, except that one
bond of each Tranche may have a denomination of less than $100,000.
Authorized Officer means, with respect to:
(a) the Issuer, (i) any Manager and (ii) any person authorized by
the Managers pursuant to the Issuer LLC Agreement;
(b) the Seller, the chairman of the board, the vice chairman of the
board, the chief executive officer, the president, any executive vice
president, any senior vice president, any vice president, the chief
financial officer, the treasurer, any assistant treasurer, the corporate
secretary, any assistant corporate secretary, the controller or any
assistant controller of the Seller;
(c) the Servicer, the chairman of the board, the vice chairman of
the board, the chief executive officer, the president, any executive vice
president, any senior vice president, any vice president, the chief
financial officer, the treasurer, any assistant treasurer, the corporate
secretary, any assistant corporate secretary, the controller or any
assistant controller of the Servicer;
(d) the Administrator, the chairman of the board, the vice chairman
of the board, the chief executive officer, the president, any executive
vice president, any senior vice president, any vice president, the chief
financial officer, the treasurer, any assistant treasurer, the corporate
secretary, any assistant corporate secretary, the controller or any
assistant controller of the Administrator;
Appendix A-2
(e) the Trustee, any officer within the Corporate Trust Office of
the Trustee, including any vice president, assistant vice president,
secretary, assistant secretary or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject;
(f) any other corporation, the chief executive officer, chief
operating officer, chief financial officer, chief information officer,
president, executive vice president, any vice president, the secretary or
the treasurer of such corporation; and with respect to any limited
liability company, any manager thereof; and
(g) any limited liability company, any manager thereof.
Basic Documents means the Formation Documents, the Sale Agreement, any
Bills of Sale, the Servicing Agreement, the Administration Agreement, the
Indenture, any Additional Indenture, and the Underwriting Agreement.
Xxxx of Sale means any xxxx of sale issued by the Seller to the Issuer
pursuant to the Sale Agreement evidencing the sale of Storm-Recovery Property by
the Seller to the Issuer.
Billed Storm-Recovery Charges means the dollar amounts billed to Customers
in respect of a Storm Recovery Charge.
Bills means each of the regular monthly bills, summary bills and other
bills issued to Customers by FPL on its own behalf and in its capacity as
Servicer.
Bond or Bonds means the FPL Recovery Funding LLC Senior Secured Bonds,
Series A, issued pursuant to the Indenture.
Bond Purchase Agreement means, collectively, the Notice of Sale, dated
April 23, 2007, as amended by a Pricing Notice, dated May 11, 2007, as accepted
by a Bid, dated May 15, 2007, executed and delivered by Wachovia Capital
Markets, LLC and accepted by the Issuer and FPL, including, in each case,
attachments and exhibits.
Bond Register has the meaning specified in Section 2.05(a) of the
Indenture.
Bond Revenue Requirement for any upcoming Remittance Period shall equal
(i) the sum of (a) 100% of actual amounts expected to be due and past due
relating to Principal and Interest on the Storm-Recovery Bonds and Operating
Expenses; and (b) any amounts needed to replenish the Capital Subaccount (net of
future amounts expected to be deposited to the Capital Subaccount prior to the
upcoming Remittance Period); minus (ii) the sum of any (a) amounts on deposit in
the Excess Funds Subaccount as of the Measure Date (net of future amounts
expected to be withdrawn from the Excess Funds Subaccount prior to the upcoming
Remittance Period) and (b) amounts estimated to be remitted during the upcoming
Remittance Period from amounts billed during the current Remittance Period.
Appendix A-3
Bondholder or Holder means the Person in whose name a Storm-Recovery Bond
is registered in the Bond Register.
Book-Entry Bond or Book-Entry Bonds means beneficial interests in the
Bonds, ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.11 of the Indenture.
Business Day means any day other than a Saturday or Sunday or a day on
which banking institutions in Juno Beach, Florida, or in New York, New York, are
required or authorized by law or executive order to remain closed.
Capital Subaccount, with respect to the Bonds, has the meaning specified
in Section 8.02(a) of the Indenture, and, with respect to any Additional Bonds,
has the meaning set forth in the applicable Additional Indenture.
Cede & Co. means DTC, in its capacity as nominee of the Clearing Agency.
Certificate of Compliance has the meaning set forth in Section 3.03(a) of
the Servicing Agreement.
Clearing Agency means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act, and includes its nominees.
Clearing Agency Participant means a broker, dealer, bank, other financial
institution or other Person for whom a Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing Agency.
Closing Date means May 22, 2007
Code means the Internal Revenue Code of 1986 and Treasury Regulations
promulgated thereunder.
Collateral has the meaning specified in the Granting Clause of the
Indenture.
Collection Account, with respect to the Bonds, has the meaning specified
in Section 8.02(a) of the Indenture and, with respect to any Additional Bonds,
has the meaning set forth in the applicable Additional Indenture.
Commission means the Florida Public Service Commission.
Commission Condition means the satisfaction of any precondition to any
amendment or modification to or action under any Basic Documents through the
obtaining of Commission consent or acquiescence, as described in the related
Basic Document.
Commission Regulations means any applicable regulations, orders, rules or
guidelines promulgated, issued or adopted by the Commission, as in effect from
time to time.
Appendix A-4
Corporate Trust Office means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered, which
office at the date of the execution of the Indenture is located at 000 Xxxxxxx
Xxxxxx, 0 Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset Backed Securities,
Phone: (000) 000-0000, Fax: (000) 000-0000, or at such other address as the
Trustee may designate from time to time by notice to the Bondholders and the
Issuer, or the principal corporate trust office of any successor Trustee (the
address of which the successor Trustee will notify the Bondholders and the
Issuer in writing).
Covenant Defeasance Option has the meaning specified in Section 4.01(b) of
the Indenture.
Customer means each electric customer receiving transmission or
distribution service from FPL or its successors or assignees under
Commission-approved rate schedules or under special contracts, even if the
customer elects to purchase electricity from an AES following a fundamental
change in regulation of public utilities in the State.
Daily Remittance Report has the meaning specified in Section 3.01(b)(i) of
the Servicing Agreement.
Deemed Receipt Day has the meaning specified in Section 6(d) of Annex I to
the Servicing Agreement.
Deemed Charge-Off Percent means the Servicer's actual system wide
charge-off percentage, as adjusted for estimates of partially paid bills.
Default means any occurrence that is, or with notice or the lapse of time
or both would become, an Event of Default.
Defeasance Subaccount, with respect to the Bonds, has the meaning
specified in Section 8.02(a) of the Indenture and, with respect to any
Additional Bonds, has the meaning set forth in the applicable Additional
Indenture.
Definitive Bonds means the Bonds issued, in fully registered form, issued
in accordance with the instructions of the Clearing Agency pursuant to Section
2.11 and Section 2.13 of the Indenture, in lieu of the maintenance of a system
of Book-Entry Bonds by the Clearing Agency.
Delaware Secretary of State means the Office of the Secretary of State of
the State of Delaware.
Delaware UCC means the Uniform Commercial Code, as in effect in the State
of Delaware.
DTC means The Depository Trust Company, a limited-purpose trust company
organized under the laws of the State of New York, and includes any nominee of
DTC in whose name any Book-Entry Bonds are registered.
Appendix A-5
DTC Agreement means the letter of representations or similar agreement
among the Issuer, the Trustee and DTC, as the initial Clearing Agency, dated on
or about the Closing Date, relating to the Bonds.
XXXXX means the SEC's electronic data gathering, analysis and retrieval
system.
Eligible Deposit Account means either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate trust
department of a depository institution organized under the laws of the United
States or any one of the states (or any domestic branch of a foreign bank),
having corporate trust powers and acting as trustee for funds deposited in such
account, so long as any of the securities of such depository institution shall
have a credit rating from each Rating Agency in one of its three highest rating
categories.
Eligible Guarantor Institution means a firm or other entity identified in
Rule 17Ad-15 under the Exchange Act as "an eligible guarantor institution,"
including (as such terms are defined therein):
(a) a bank;
(b) a broker, dealer, municipal securities broker or dealer or
government securities broker or dealer;
(c) a credit union;
(d) a national securities exchange, registered securities
association or clearing agency; or
(e) a savings association that is a participant in a securities
transfer association.
Eligible Institution means (a) the corporate trust department of the
Trustee; provided, that an account with the Trustee will only be an Eligible
Deposit Account if it is a segregated trust account, or (b) a depository
institution organized under the laws of the United States or any state or any
domestic branch of a foreign bank, (i) that has either (A) a long-term unsecured
debt rating of "AAA" by Standard & Poor's, "Aaa" by Moody's and "AAA" by Fitch,
or (B) a certificate of deposit rating of "A-1+" by Standard & Poor's and if
rated by Fitch, "F1+", or any other long-term, short-term or certificate of
deposit rating acceptable to the applicable Rating Agencies and (ii) whose
deposits are insured by the FDIC. If so qualified under clause (b) above, the
Trustee may be considered an Eligible Institution for the purposes of clause (a)
of this definition.
Eligible Investment means:
(a) direct obligations of, and obligations fully and unconditionally
guaranteed as to timely payment by, the United States;
(b) demand deposits, time deposits, certificates of deposit or
bankers' acceptances of any depository institution incorporated under the
laws of the United States
Appendix A-6
or any state, or any domestic branch of a foreign bank, and subject to the
supervision and examination by federal or state banking or depository
institution authorities, so long as at the time of the investment or
contractual commitment to invest therein, the commercial paper or other
short-term unsecured debt obligations, other than any obligations thereof
where the rating is based on the credit of a person other than that
depository institution, shall have a credit rating from each of the Rating
Agencies in the highest investment category granted thereby;
(c) commercial paper or other short-term obligations of any
corporation (other than the Seller) organized under the laws of the United
States or any state having a rating, at the time of the investment or
contractual commitment to invest therein, from each of the Rating Agencies
in the highest short-term or long-term investment category granted
thereby;
(d) investments in money market funds having a rating in the highest
investment category granted thereby (including funds for which the Trustee
or any of its Affiliates is investment manager or advisor) from Moody's,
Standard & Poor's, and Fitch, if rated by Fitch;
(e) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States or any
agency or instrumentality thereof the obligations of which are backed by
the full faith and credit of the United States, in either case entered
into with a depository institution or trust company, acting as principal,
described in clause (b) of the definition of Eligible Institutions;
(f) repurchase obligations with respect to any security or whole
loan entered into with: (A) a depository institution or trust company,
acting as principal, described in clause (b) of the definition of Eligible
Institution, except that the rating referred to in the proviso in clause
(b) of the definition of Eligible Institution above shall be "A-1+" or
higher in the case of Standard & Poor's, (B) a broker/dealer, acting as
principal registered as a broker or dealer under Section 15 of the
Exchange Act, the unsecured short-term debt obligations of which are rated
"P-1" by Moody's, "F1+" by Fitch, if rated by Fitch, and at least "A-1+"
by Standard & Poor's at the time of entering into this repurchase
obligation or (C) an unrated broker/dealer, acting as principal, that is a
wholly-owned subsidiary of a non-bank or bank holding company the
unsecured short term debt obligations of which are rated "P-1" by Moody's,
"F1+" by Fitch, if rated by Fitch, and at least "A-1+" by Standard &
Poor's at the time of purchase; and
(g) any other investment permitted by each of the Rating Agencies
(except in the case of Fitch, where notice shall be sufficient); provided,
that unless otherwise permitted by the applicable Rating Agencies, upon
the failure of any Eligible Institution to maintain any applicable rating
set forth in this definition or in the definition of "Eligible
Institution," the related investments shall be reinvested in other
Eligible Investments within ten days; and, provided further, that no
obligation of, or security issued by, the Seller shall constitute an
Eligible Investment.
Appendix A-7
Estimated Charge-Off Percent means the Servicer's good faith estimate of
the Deemed Charge-Off Percent.
Estimated Storm-Recovery Charge Payments means an amount equal to the
product of the Billed Storm-Recovery Charges for a particular billing date
multiplied by one hundred percent less the Estimated Charge-Off Percent.
Event of Default has the meaning specified in Section 5.01 of the
Indenture.
Excess Funds Subaccount, with respect to the Bonds, has the meaning
specified in Section 8.02(a) of the Indenture and, with respect to any
Additional Bonds, the meaning set forth in the applicable Additional Indenture.
Exchange Act means the Securities Exchange Act of 1934.
Expected Sinking Fund Schedule means, with respect to each Tranche of
Storm-Recovery Bonds, the expected sinking fund schedule for Principal thereof,
as set forth in Schedule A to the Indenture.
FDIC means the Federal Deposit Insurance Corporation.
Fiduciaries means the Trustee and each separate trustee, co-trustee,
listing agent, transfer agent, registrar or Paying Agent.
Final Maturity Date means, for each Tranche of Storm-Recovery Bonds, the
date by which all Principal of and Interest on such Tranche of Storm-Recovery
Bonds is required to be paid.
Final Prospectus means the prospectus dated May 17, 2007.
Financing Costs has the meaning specified in the Statute.
Financing Order means the order of the Commission, Docket No. 060038,
issued after rehearing on July 21, 2006, as amended or supplemented in
accordance with the Statute.
Fitch means Fitch, Inc., or any successor thereto.
Formation Documents means the Issuer LLC Agreement and the Issuer
Certificate of Formation.
FPL means Florida Power & Light Company, and any of its successors or
permitted assigns.
General Subaccount, with respect to the Bonds, has the meaning specified
in Section 8.02(a) of the Indenture and, with respect to any Additional Bonds,
has the meaning set forth in the applicable Additional Indenture.
Governmental Authority means any nation or government, any federal, state,
local or other political subdivision thereof and any court, administrative
agency or other instrumentality
Appendix A-8
or entity exercising executive, legislative, judicial, regulatory or
administrative function of government.
Grant means mortgage, pledge, bargain, sell, warrant, alienate, remise,
release, convey, assign, transfer, create, and xxxxx x xxxx upon and a security
interest in and right of set-off against, deposit, set over and confirm. Grant,
used as a noun, and Granting, used as an adjective, have correlative meanings
consistent with preceding sentence. A Grant of the Collateral or of any other
agreement or instrument shall include all rights, powers and options (but none
of the obligations) of the Granting party thereunder, including the immediate
and continuing right to claim for, collect, receive and give receipt for
principal, interest and other payments in respect of the Collateral or such
other agreement or instrument and all other amounts payable thereunder, to give
and receive notices and other communications, to make waivers or other
agreements, to exercise all rights and options, to bring Proceedings in the name
of the Granting party or otherwise and generally to do and receive anything that
the Granting party is or may be entitled to do or receive thereunder or with
respect thereto.
Holder or Bondholder means the Person in whose name any Bond or Additional
Bond is registered.
Indemnified Person means the Issuer and each Trustee (for itself and on
behalf of the applicable Storm-Recovery Bondholders) and each of their
respective trustees, members, managers, officers, directors, employees and
agents.
Indemnity Amount means the amount of any indemnification obligation
payable under the Basic Documents.
Indenture means the Indenture, dated as of May 22, 2007, between the
Issuer and the Trustee, as the same may be amended or supplemented from time to
time.
Independent means, when used with respect to any specified Person, that
the Person (a) is in fact independent of each Interested Party, (b) does not
have any direct financial interest or any material indirect financial interest
in any Interested Party, and (c) is not connected with any Interested Party as
an officer, employee, promoter, underwriter, trustee, partner, director or
individual performing similar functions.
Independent Certificate means a certificate or opinion to be delivered to
the Trustee under the circumstances described in, and otherwise complying with,
the applicable requirements of Section 11.01 of the Indenture, made by an
Independent accountant or other expert appointed by an Issuer Order and approved
by the Trustee in the exercise of reasonable care, which certificate or opinion
shall state that the signer has read the definition of "Independent" in this
Appendix A and that the signer is Independent within the meaning thereof.
Independent Manager has the meaning set forth in the Issuer LLC Agreement.
Initial Payment Date means, with respect to the Bonds, February 1, 2008.
Insolvency Event means, with respect to a specified Person,
Appendix A-9
(a) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of such Person or any substantial
part of its property in an involuntary case under any applicable federal
or state bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official for such Person or for any
substantial part of its property, or ordering the winding-up or
liquidation of such Person's affairs, and such decree or order shall
remain unstayed and in effect for a period of 90 consecutive days or
(b) the commencement by such Person of a voluntary case under any
applicable federal or state bankruptcy, insolvency or other similar law
now or hereafter in effect, or the consent by such Person to the entry of
an order for relief in an involuntary case under any such law, or the
consent by such Person to the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official for such
Person or for any substantial part of its property, or the making by such
Person of any general assignment for the benefit of creditors, or the
failure by such Person generally to pay its debts as such debts become
due, or the taking of action by such Person in furtherance of any of the
foregoing.
Interest means, for any Payment Date for any Series, or any Tranche within
a Series, the sum, without duplication, of:
(a) an amount equal to the amount of interest accrued at the
applicable Interest Rate from the prior Payment Date with respect to that
Series or Tranche (or, if there has been no prior Payment Date, from the
Closing Date);
(b) any unpaid interest as of the day following the prior Payment
Date, to the extent permitted by applicable law, plus any interest accrued
on such unpaid interest at the applicable Interest Rate, to the extent
permitted by applicable law;
(c) if the Storm-Recovery Bonds have been declared due and payable,
all accrued and unpaid interest thereon; and
(d) with respect to a Series, or any Tranche within a Series, to be
redeemed prior to the next Payment Date, the amount of interest that will
be payable as interest on such Series or Tranche upon such redemption.
Interest Rate means, with respect to any Series, or any Tranche within a
Series, the rate at which Interest accrues on the Principal Balance of
Storm-Recovery Bonds of such Tranche.
Interested Party means the Issuer, any other obligor upon the
Storm-Recovery Bonds, FPL or any Affiliate of any of the foregoing.
Investment Company Act means the Investment Company Act of 1940.
Issuance Advice and Initial True-Up Adjustment Letter means the letter
delivered to the Commission pursuant to the Financing Order on or about the
Closing Date.
Appendix A-10
Issuer means FPL Recovery Funding LLC, a Delaware limited liability
company, or its successor under the Indenture or the party named as such in the
Indenture until a successor replaces it and, thereafter, means the successor.
Issuer Certificate of Formation means the Certificate of Formation of the
Issuer which was filed with the Secretary of State of the State of Delaware on
March 6, 2007.
Issuer LLC Agreement means the Limited Liability Company Agreement between
the Issuer and FPL, as sole Member, effective April 16, 2007.
Issuer Officer's Certificate means a certificate signed by any Authorized
Officer of the Issuer, under the circumstances described in, and complying with
the applicable requirements of, Section 11.01 of the Indenture, and delivered to
the Trustee.
Issuer Order or Issuer Request means a written order or request,
respectively, signed in the name of the Issuer by any one of its Authorized
Officers and delivered to the Trustee.
Legal Defeasance Option has the meaning specified in Section 4.01(b) of
the Indenture.
Lien means a security interest, lien, charge, pledge or encumbrance of any
kind.
Losses means, collectively, any and all liabilities, obligations, losses,
damages, payments, costs or expenses of any kind whatsoever.
Manager has the meaning set forth in the Issuer LLC Agreement.
Measure Date means, in any Remittance Period, the date of the
Storm-Recovery Charge and Tax Charge calculations.
Member means FPL, as the sole member of the Issuer, in its capacity as
such member under the Issuer LLC Agreement.
Monthly Servicer Certificate has the meaning specified in Section
3.01(b)(ii) of the Servicing Agreement.
Moody's means Xxxxx'x Investors Service, Inc.
Mortgage and Deed of Trust means that certain Mortgage and Deed of Trust
executed by FPL in favor of Bankers Trust Company and The Florida National Bank
of Jacksonville, as trustees, dated as of January 1, 1944, as subsequently
supplemented.
New York UCC means the Uniform Commercial Code, as in effect in the State
of New York.
Non-Routine True-Up Adjustment has the meaning specified in Section
4.01(c)(i) of the Servicing Agreement.
Appendix A-11
Non-Routine True-Up Adjustment Request means an Adjustment Request filed
with the Commission in accordance with the Financing Order, if applicable, with
respect to any Non-Routine True-Up Adjustment.
Notice of Default has the meaning specified in Section 5.01(d) of the
Indenture.
Officer's Certificate means a certificate of the Servicer, the Seller or
the Administrator signed by an Authorized Officer.
Operating Expenses means, with respect to the Issuer, all fees, costs,
expenses and Indemnity Amounts owed by the Issuer, including all amounts owed by
the Issuer to the Trustee, the Servicing Fee, the fees and expenses payable by
the Issuer to the Administrator under the Administration Agreement, the fees and
expenses payable by the Issuer to the Independent Managers and the Special
Member of the Issuer, fees of the Rating Agencies, legal fees and expenses of
the Servicer pursuant to Section 5.02(d) and Section 6.08 of the Servicing
Agreement, legal and accounting fees, costs and expenses of the Issuer, and
legal, accounting or other fees, costs and expenses of the Seller (including any
costs and expenses incurred by the Seller pursuant to Section 4.08 or Section
4.10 of the Sale Agreement) under or in connection with the Basic Documents and
the Financing Order.
Opinion of Counsel means one or more written opinions of counsel who,
except as otherwise expressly provided in the Indenture, may be counsel to an
Interested Party, which counsel shall be reasonably acceptable to the Trustee,
the Issuer or the Rating Agencies, as applicable, and which shall be in form
reasonably satisfactory to the applicable Trustee.
Outstanding with respect to Storm-Recovery Bonds means, as of the date of
determination, all Storm-Recovery Bonds theretofore authenticated and delivered
under the Indenture or any Additional Indenture, except:
(a) Storm-Recovery Bonds theretofore canceled by the applicable
Registrar or delivered to the applicable Registrar for cancellation;
(b) Storm-Recovery Bonds or portions thereof for the payment of
which money in the necessary amount has been theretofore deposited with
the applicable Trustee or any Paying Agent in trust for the Holders of
such Storm-Recovery Bonds, and if such Storm-Recovery Bonds are to be
redeemed, notice of such redemption has been duly given pursuant to the
Indenture or provision therefor, satisfactory to the applicable Trustee,
made; and
(c) Predecessor Storm-Recovery Bonds.
provided that in determining whether the Holders of the requisite Outstanding
Amount of the Storm-Recovery Bonds or any Tranche or Series thereof have given
any request, demand, authorization, direction, notice, consent or waiver under
any Basic Document, Additional Indenture or Subsequent Sale Agreement,
Storm-Recovery Bonds owned by any Interested Party shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the applicable
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Storm-Recovery Bonds
that the applicable Trustee
Appendix A-12
knows to be so owned shall be so disregarded. Storm-Recovery Bonds so owned that
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the applicable Trustee the pledgee's right so
to act with respect to such Storm-Recovery Bonds and that the pledgee is not an
Interested Party.
Outstanding Amount means the aggregate principal amount of all Outstanding
Storm-Recovery Bonds or, if the context requires, all Storm-Recovery Bonds of a
Tranche or Series, Outstanding at the date of determination.
Paying Agent means the Trustee or any other Person, that meets the
eligibility standards for the Trustee specified in Section 6.11 of the Indenture
and is authorized by the Issuer to make the payments of Principal of and
Interest on the Storm-Recovery Bonds on behalf of the Issuer.
Payment Date means, with respect to each Series or Tranche within a Series
of Storm-Recovery Bonds, each date or dates specified as Payment Dates for such
Series or Tranche.
Periodic Adjustments means each Routine True-Up Adjustment and Non-Routine
True-Up Adjustment made pursuant to the terms of the Financing Order and in
accordance with Section 4.01 of the Servicing Agreement.
Person means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust (including any beneficiary
thereof), business trust, limited liability company, unincorporated organization
or government or any agency or political subdivision thereof.
Predecessor Storm-Recovery Bond means, with respect to any particular
Bond, every previous Bond evidencing all or a portion of the same debt as that
evidenced by such particular Bond; and for the purpose of this definition, any
Bond authenticated and delivered under Section 2.06 of the Indenture in lieu of
a mutilated, lost, destroyed or stolen Bond shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Bond.
Principal means, with respect to any Payment Date and each Tranche or
Series: (i) the amount of principal scheduled to be paid on such Payment Date in
accordance with the Expected Sinking Fund Schedule; (ii) the amount of principal
due on the Final Maturity Date of such Tranche or Series if such Payment Date is
the Final Maturity Date; (iii) the amount of principal due as a result of the
occurrence and continuance of an Event of Default and acceleration of the
Storm-Recovery Bonds; and (iv) any overdue payments of principal.
Principal Balance means, with respect to each Tranche or Series of
Storm-Recovery Bonds as of any Payment Date, the Outstanding Amount of the
applicable Tranche or Series of Storm-Recovery Bonds.
Pro Rata has the meaning specified in Section 8.02(e) of the Indenture.
Proceeding means any suit in equity, action at law or other judicial or
administrative proceeding.
Appendix A-13
Projected Principal Balance means, as of any Payment Date, the projected
Outstanding Amount for such Payment Date for such Tranche or Series of
Storm-Recovery Bonds set forth in the Expected Sinking Fund Schedule.
Protected Purchaser has meaning specified in Article 8-303 of the Delaware
UCC.
Qualified Costs means, with respect to the Bonds or any Additional Bonds,
the Financing Costs, Storm-Recovery Reserves and Storm-Recovery Costs approved
in the Financing Order.
Rating Agency means, as of any date, any rating agency rating the
Storm-Recovery Bonds of any Tranche or Series at the time of original issuance
thereof at the request of the Issuer, or any successor to such rating agency. If
such organization or successor is no longer in existence, in lieu thereof
"Rating Agency" means a nationally recognized statistical rating organization or
other comparable Person designated by the Issuer, notice of which designation
shall be given to each Trustee, the Member and the Servicer.
Rating Agency Condition means, with respect to any action, the
notification in writing to each Rating Agency of such action, and written
confirmation from Standard & Poor's and, with respect to the issuance of
Additional Bonds only, written confirmation from all of the Rating Agencies
(except in the case of Fitch, where notice shall be sufficient), in all
instances sent to the Servicer, each Trustee and the Issuer, to the effect that
such action or issuance, as applicable, will not result in a suspension,
reduction or withdrawal of the then-current rating by such Rating Agency of any
Outstanding Tranche or Series of Storm-Recovery Bonds.
Record Date means, with respect to any Payment Date, the Business Day
prior to such Payment Date or, with respect to any Definitive Storm-Recovery
Bonds, the last Business Day of the month preceding such Payment Date; or such
other record date as may be specified in or pursuant to the Indenture.
Registrar has the meaning specified in Section 2.05(a) of the Indenture.
Regulation AB means the rules of the SEC promulgated under Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
ss.ss.229.1100-229.1123, as such may be amended from time to time.
Related Agreements has the meaning set forth in the Second Preamble to the
Administration Agreement.
Released Parties means the Issuer (including its Member, Managers,
officers, employees and agents, if any) and the Trustee (including its
respective officers, directors and agents).
Remittance means each remittance by the Servicer to the Trustee of
Storm-Recovery Charge payments.
Remittance Date means each Servicer Business Day on which a Remittance is
to be made by the Servicer pursuant to Section 4.03 of the Servicing Agreement.
Appendix A-14
Remittance Excess means the amount, if any, calculated for a particular
period, by which all Storm-Recovery Charge collections during such period exceed
Estimated Storm-Recovery Charge Payments during such period.
Remittance Period means each six-month period commencing on June 1 and
December 1 of each year; provided, however, that the initial Remittance Period
shall commence on the Closing Date and end on December 1, 2007.
Remittance Shortfall means the amount, if any, calculated for a particular
period, by which Estimated Storm-Recovery Charge Payments during such period
exceed Storm-Recovery Charge collections during such period.
Required Capital Amount means, with respect to each Series of
Storm-Recovery Bonds, the amount required to be deposited in the Capital
Subaccount on the Closing Date.
Requirement of Law means any foreign, federal, state or local laws,
statutes, regulations, rules, codes or ordinances enacted, adopted, issued or
promulgated by any Governmental Authority or common laws.
Retirement Date means, with respect to each Series of the Storm-Recovery
Bonds, the day on which the final payment is made to the Storm-Recovery
Bondholders in respect of the last Outstanding Storm-Recovery Bond of such
Series.
Retiring Trustee means the Trustee, during the period following its
resignation and removal, but prior to the effective date of the appointment of a
successor Trustee.
Routine True-Up Adjustment has the meaning set forth in Section
4.01(b)(iii) of the Servicing Agreement.
Routine True-Up Adjustment Request means an Adjustment Request filed with
the Commission in respect of a Routine True-Up Adjustment, substantially in the
form of Exhibit B to the Servicing Agreement.
Rules of Construction has the meaning set forth in the first paragraph of
this Appendix A.
Sale Agreement means the Storm-Recovery Property Sale Agreement dated as
of May 22, 2007, between the Seller and the Issuer.
Scheduled Final Payment Date means, with respect to each Tranche of
Storm-Recovery Bonds, the date when all Interest and Principal is scheduled to
be paid with respect to that Tranche in accordance with the related Expected
Sinking Fund Schedule.
SEC means the U.S. Securities and Exchange Commission.
Secured Obligations has the meaning specified in the Granting Clause of
the Indenture.
Securities Act means the Securities Act of 1933.
Appendix A-15
Seller means FPL, in its capacity as seller of the Storm-Recovery Property
to the Issuer pursuant to the Sale Agreement.
Seller's Agent means the Issuer, acting as the agent of the Seller,
pursuant to Section 2.01(c)(i) of the Sale Agreement.
Semiannual Servicer Certificate has the meaning assigned to that term in
Section 3.01(b)(iii) of the Servicing Agreement.
Series means any series of Storm-Recovery Bonds issued by the issuer
pursuant to the Indenture or any Additional Indenture pursuant to the Financing
Order.
Series Issuance Date means with respect to the first FPL Recovery Funding
LLC Senior Secured Bonds, Series A, the Closing Date, and with respect to any
other Series, the date on which the Storm-Recovery Bonds are to be issued in
accordance with the applicable Additional Indenture.
Series A Purchase Price is $650,344,803.72.
Series A Storm-Recovery Charge means the "storm-recovery charge"
authorized by the Statute and Financing Order which is part of the Series A
Storm-Recovery Property.
Series A Storm-Recovery Property means the "storm-recovery property" as
defined in the Statute and the Financing Order that is transferred by the Seller
to the Issuer as of the Closing Date pursuant to the Sale Agreement and the
related Xxxx of Sale.
Servicer means FPL, as the servicer of the Storm-Recovery Property, and
each successor to FPL (in the same capacity) pursuant to Section 6.03 or 7.04 of
the Servicing Agreement.
Servicer Business Day means any Business Day on which the Servicer's
offices in the State are open for business.
Servicer Default means the occurrence of an event specified in Section
7.01 of the Servicing Agreement.
Servicer Policies and Practices means, with respect to the Servicer's
duties under Annex I to the Servicing Agreement, the policies and practices of
the Servicer applicable to such duties that the Servicer follows with respect to
comparable assets that it services for itself or others and in accordance with
Commission Regulations. The Servicer shall provide ten days' prior written
notice to the Rating Agencies of any amendment to the Servicer Policies and
Practices that would adversely affect the Bondholders in any material respect.
Servicer's Officer's Certificate means a certificate signed by any
Authorized Officer of the Servicer, under the circumstances described in, and
complying with the applicable requirements of, Section 9.03 of the Indenture,
and delivered to the Commission.
Servicing Agreement means the Storm-Recovery Property Servicing Agreement
dated as of May 22, 2007, between the Issuer and the Servicer.
Appendix A-16
Servicing Fee means the fee payable to the Servicer for services rendered,
in accordance with Section 6.07 of the Servicing Agreement.
Special Member has the meaning set forth in the Issuer LLC Agreement.
Special Payment Date has the meaning set forth in Section 2.03(j) of the
Indenture.
Sponsor means FPL, in its capacity as "sponsor" of the Storm Recovery
Bonds within the meaning of Regulation AB.
Standard & Poor's means Standard & Poor's Ratings Services, a Division of
The XxXxxx-Xxxx Companies, Inc., or any successor thereto.
State means the State of Florida.
State Pledge means the pledge in Section 366.8260(11), Florida Statutes.
Statute means Section 366.8260, Florida Statutes.
Storm Bond Repayment Charge means Storm-Recovery Charges.
Storm Bond Tax Charge means the storm-recovery charge collected pursuant
to the Statute by the Servicer for the benefit of FPL to recover FPL's tax
liabilities associated with the receipt of the Storm-Recovery Charges by the
Issuer.
Storm-Recovery Bond means the Bonds issued pursuant to the Indenture and
any Additional Bonds.
Storm-Recovery Bond Register means the Bond Register and any register the
Issuer shall provide for registration of any Additional Bonds and the
registration of transfers of such Additional Bonds.
Storm-Recovery Charge means the storm bond repayment charge authorized by
the Commission to be imposed on all electric Customers by FPL to recover
Qualified Costs pursuant to the Financing Order.
Storm-Recovery Charge Collections means amounts collected in respect of
Storm-Recovery Charges or the Storm-Recovery Property.
Storm-Recovery Costs has the meaning specified in the Statute.
Storm-Recovery Property means the Storm-Recovery Property that is
authorized under the Financing Order, and that is sold by the Seller to the
Issuer under the Sale Agreement or under a Subsequent Sale Agreement, but does
not include the right to any revenues, collections, claims, rights, payments,
money or proceeds of or arising from the Tax Charges.
Storm-Recovery Property Records means any and all documents and records
that the Servicer shall keep on file, in accordance with its customary
procedures, relating to the Storm-Recovery Property, including copies of the
Financing Order and all documents filed with the
Appendix A-17
Commission in connection with any Periodic Adjustment and computational records
relating thereto.
Storm-Recovery Reserves has the meaning specified in the Statute.
Subaccount, with respect to the Bonds, means any of the subaccounts of the
Collection Account specified in Section 8.02 of the Indenture and, with respect
to any Additional Bonds, has the meaning set forth in the applicable Additional
Indenture.
Subsequent Financing Order means a financing order of the Commission
issued to FPL under the Statute subsequent to the Financing Order.
Subsequent Sale Agreement means a sale agreement pursuant to which
Subsequent Storm-Recovery Property is transferred on a Subsequent Transfer Date.
Subsequent Storm-Recovery Property means Storm-Recovery Property sold by
the Seller to the Issuer as of a Subsequent Transfer Date pursuant to a
Subsequent Sale Agreement and the xxxx of sale delivered on or prior to the
Subsequent Transfer Date, as identified in such xxxx of sale, unless the
applicable Additional Indenture specifies such storm-recovery property is
subject to a different servicing agreement.
Subsequent Transfer Date means the date that a sale of Subsequent
Storm-Recovery Property will be effective, as specified in a written notice
provided by the Seller to the Issuer pursuant to the Subsequent Sale Agreement.
Successor Servicer means a successor Servicer appointed by the Trustee
pursuant to Section 7.04 of the Servicing Agreement which succeeds to all the
rights and duties of the Servicer under the Servicing Agreement.
Supplemental Indenture means a supplemental indenture entered into by the
Issuer and the Trustee pursuant to Article Nine of the Indenture.
Tax Charges means the storm bond tax charges authorized by the Commission
to be imposed on all electric Customers by FPL to recover Qualified Costs
pursuant to the Financing Order.
Termination Notice has the meaning set forth in Section 7.01 of the
Servicing Agreement.
Tranche means any one of the tranches of Storm-Recovery Bonds of any
Series.
Transfer Date means the Closing Date or any Subsequent Transfer Date, as
applicable.
Trust Indenture Act or TIA means the Trust Indenture Act of 1939, as in
force on the effective date hereof the Indenture, unless otherwise specifically
provided.
Trustee means The Bank of New York, a New York banking corporation or its
successor, as trustee under the Indenture, or any successor trustee under the
Indenture, or, as the context
Appendix A-18
requires, the trustee under any Additional Indenture, or any successor trustee
under the Additional Indenture.
Uniform Commercial Code or UCC means, unless the context otherwise
requires, the Uniform Commercial Code, as in effect in the relevant
jurisdiction, as amended from time to time.
United States means the United States of America.
U.S. Government Obligations means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States
(including any agency or instrumentality thereof) for the timely payment of
which the full faith and credit of the United States are pledged and which are
not callable at the issuer's option.
Weighted Average Days Outstanding means the weighted average number of
days FPL's monthly retail Customer Bills remain outstanding during the calendar
year as determined from time to time by FPL.
Appendix A-19
