EXHIBIT 1(b)
FLORIDA POWER & LIGHT COMPANY
SECURED MEDIUM-TERM NOTES, SERIES
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DISTRIBUTION AGREEMENT
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[Date]
[Names and Addresses of Agents]
Ladies and Gentlemen:
The undersigned, Florida Power & Light Company, a Florida
corporation ("FPL"), hereby confirms its agreement with each of
you (individually, an "Agent" and collectively, the "Agents") as
follows:
1. APPOINTMENT OF AGENTS.
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(a) FPL has authorized by appropriate corporate action and
proposes to issue and sell in the manner contemplated by this
agreement up to $ aggregate principal amount of
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Securities (as defined in Section 3(a) hereof) registered
pursuant to the Registration Statement (as defined in
Section 3(a) hereof).
(b) Subject to the terms and conditions stated in this
agreement, FPL hereby appoints each of you as Agent for the
purpose of offering and selling the Securities. FPL reserves
the right to sell the Securities on its own behalf directly to
investors and, from time to time, to appoint additional agents
to sell the Securities, provided that FPL shall furnish the
Agents with reasonable advance notification of the addition of
any agent to sell the Securities and further provided that
each such additional agent shall be required to execute a
distribution agreement in form and substance substantially
similar to this agreement, except that FPL and each such
additional agent may change the form and substance of the
commission rate schedule contained in each respective
distribution agreement in any manner acceptable to FPL and
such additional agent. FPL further reserves the right to
change the principal amount of Securities to be sold by the
Agents pursuant to this agreement, provided that FPL shall
furnish the Agents with reasonable advance notification of
such change. The foregoing shall not be construed to prevent
FPL from selling at any time any of its securities, including
the Securities in a firm commitment underwriting pursuant to
an underwriting agreement that does not provide for a
continuous offering of such securities. In the event that FPL
shall sell securities during the period between the time at
which FPL has accepted an offer to purchase Securities
solicited by an Agent from such purchaser under the terms and
conditions of this agreement and the Settlement Date (as
defined in Section 4 hereof) and such sale directly results in
the failure of such purchaser to accept delivery or pay for
the Securities, FPL shall be obligated to pay the Agent a
commission in respect of such Securities to be calculated in
accordance with Exhibit B attached hereto.
(c) On the basis of the representations and warranties
contained herein, but subject to the terms and conditions
herein set forth, each Agent agrees, as agent of FPL, to use
its reasonable best efforts when requested by FPL to solicit
offers to purchase the Securities upon the terms and
conditions set forth in the Prospectus (as defined in Section
3(a) hereof) and the Administrative Procedures attached hereto
as Exhibit A, as they may be amended from time to time (the
"Procedures").
(d) Administrative procedures relating to the offer and sale
of the Securities, the issue and delivery of certificates
representing the Securities and payment for the Securities are
set forth in the Procedures. Each Agent and FPL agree to
perform the respective duties and obligations to be performed
by each of them as provided in the Procedures. The Procedures
may be amended only by a written agreement between FPL and the
Agents. The Agents agree that the principal amount of
Securities to be offered and sold from time to time, the
prices, the interest rates or the method, if any, of
determining such interest rates, the maturities, redemption
provisions, and other terms at which the Securities are to be
offered and sold will be in compliance with limitations
established by FPL with the Agents in accordance with the
Procedures.
(e) Promptly upon the Settlement Date, each Agent will be
paid a commission for such Agent's services in acting as an
agent for FPL in the sale of the Securities and not for a
purchase by such Agent as principal, in accordance with the
schedule set forth in Exhibit B hereto.
(f) Upon execution of this Distribution Agreement by FPL and
each Agent, it is agreed that the Distribution Agreement,
dated ("Prior Distribution Agreement"), among FPL
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and each of the Agents is terminated in accordance with
Section 11 of such Prior Distribution Agreement.
2. DESCRIPTION OF SECURITIES. FPL proposes to issue the
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Securities under its Mortgage and Deed of Trust, dated as of
January 1, 1944, to Bankers Trust Company, as Trustee (the
"Trustee"), and The Florida National Bank of Jacksonville (now
resigned), as heretofore supplemented, pursuant to the
Supplemental Indenture relating to a principal
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amount not to exceed $ of First Mortgage Bonds,
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designated Secured Medium-Term Notes, Series (the "Series
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Notes") dated as of (the "Supplemental Indenture"),
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previously delivered to the Agents. On the date hereof,
$ aggregate principal amount of such Series
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Notes remain unissued under the Supplemental Indenture. The
Mortgage and Deed of Trust as it may be supplemented as of any
Settlement Date is hereafter called the "Mortgage".
The Securities shall have the maturities, interest rates or
the method, if any, of determining interest rates, redemption
provisions, and other terms as set forth in the Prospectus. The
Securities will be issued, and the terms thereof established,
from time to time by FPL in accordance with the Mortgage and the
Procedures.
3. REPRESENTATIONS AND WARRANTIES OF FPL. FPL represents
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and warrants to each Agent that:
(a) It has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3,
including a prospectus ("registration statement
No. 33-61390"), for the registration of $1,220,300,000
aggregate principal amount of its First Mortgage Bonds under
the Securities Act of 1933, as amended (the "Securities Act"),
which registration statement has been declared effective by
the Commission. FPL also filed with the Commission a
registration statement on Form S-3, including a prospectus
("registration statement No. ") for the registration
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of $210,000,000 of its First Mortgage Bonds, which
registration statement has been declared effective by the
Commission. All but $290,000,000 principal amount of First
Mortgage Bonds registered with the Commission under the
Securities Act pursuant to registration statement
No. 33-61390, as amended, have been previously issued.
Subsequent to the date hereof, it will file with the
Commission any additional registration statement or
registration statements ("Subsequent Registration Statement")
with respect to its First Mortgage Bonds necessary to assure
that Securities (as defined below) offered and sold in
accordance with the terms of this Distribution Agreement are
registered under the Securities Act. References herein to the
term "Registration Statement" as of any given date shall
initially mean registration statement No. and
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registration statement No. 33-61390, each as amended or
supplemented to such date, including all documents
incorporated by reference therein as of such date pursuant to
Item 12 of Form S-3 ("Incorporated Documents"). If FPL files
a Subsequent Registration Statement with respect to its First
Mortgage Bonds which FPL has notified the Agents will be
available for offer and sale in accordance with the terms of
this Distribution Agreement ("Future Bonds"), at and after the
time such Subsequent Registration Statement is declared
effective by the Commission, references herein to the term
"Registration Statement" as of any given date shall mean such
Subsequent Registration Statement and, until such time as all
First Mortgage Bonds registered pursuant to registration
statement No. 33-63190 and/or registration statement
No. ("Current Bonds") have been issued and sold
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(assuming that all Current Bonds are issued and sold before
any Future Bonds) or deregistered, as the case may be, said
registration statement No. 33-63190 and/or registration
statement No. , each as may be amended or
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supplemented at such time, including as of such time all
Incorporated Documents. References herein to the term
"Prospectus" at a particular time shall mean the combined
prospectus forming a part of registration statement
No. or, after the Subsequent Registration
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Statement is declared effective by the Commission, the
prospectus or combined prospectus forming a part of the
Subsequent Registration Statement, each as may be supplemented
by a prospectus supplement or prospectus supplements relating
to, as the case may be, Current Bonds or Future Bonds,
designated as Secured Medium-Term Notes, Series
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("Securities"), proposed to be filed pursuant to Rule 424(b)
of the general rules and regulations of the Securities Act
("Rule 424"), and as it may have been amended or supplemented
at such time (other than, when referring to the Prospectus
relating to a particular offering of Securities, amendments or
supplements relating to Securities other than the Securities
being offered at a particular time), including all
Incorporated Documents. References herein to the term
"Effective Date" shall be deemed initially to refer to the
later of the time and date registration statement
No. was declared effective or the time and date of
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the filing thereafter of FPL's most recent Annual Report on
Form 10-K and, after any Subsequent Registration Statement has
been declared effective by the Commission, references to the
term "Effective Date" shall be deemed to refer to the later of
the time and date the Subsequent Registration Statement was
declared effective or the time and date of the filing
thereafter of FPL's most recent Annual Report on Form 10-K.
For purposes of this agreement, any Incorporated Document
filed with the Commission shall be deemed an amendment to the
Registration Statement and a supplement to the Prospectus.
(b) At the Effective Date, the Registration Statement fully
complied, and on each date the Prospectus is filed with, or
transmitted for filing to, the Commission pursuant to Rule 424
(such date, the "Rule 424 Date") and on any Settlement Date,
the Prospectus and the Mortgage will fully comply, in all
material respects with the applicable provisions of the
Securities Act and the Trust Indenture Act of 1939, as amended
(the "1939 Act"), respectively, and, in each case, the
applicable instructions, rules and regulations of the
Commission thereunder; at the Effective Date, the Registration
Statement did not contain, and on any Settlement Date, the
Registration Statement will not contain, an untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading; on each Rule 424 Date and on any
Settlement Date, the Prospectus will not include any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein,
in the light of the circumstances under which they were made,
not misleading; and the Incorporated Documents when filed with
the Commission, fully complied or will fully comply in all
material respects with the applicable provisions of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the applicable instructions, rules and regulations
of the Commission thereunder; provided, that the foregoing
representations and warranties in this subsection (b) shall
not apply to statements or omissions made in reliance upon and
in conformity with information furnished in writing to FPL by
or on behalf of any Agents for use in connection with the
preparation of the Registration Statement or the Prospectus,
or to any statements in or omissions from the Statements of
Eligibility and Qualification on Form T-1, or amendments
thereto, of the Trustee under the Mortgage.
(c) The financial statements included as part of or
incorporated by reference in the Prospectus present fairly the
financial condition and operations of FPL at the respective
dates or for the respective periods to which they apply; such
financial statements have been prepared in each case in
accordance with generally accepted accounting principles
consistently applied throughout the periods involved except as
otherwise indicated in the Registration Statement; and
Deloitte & Touche LLP, who have audited the audited financial
statements, are independent public accountants as required by
the Securities Act and the Exchange Act and the rules and
regulations of the Commission thereunder.
(d) Except as reflected in or contemplated by the
Registration Statement and the Prospectus, since the
respective most recent dates as of which information is given
in the Registration Statement and Prospectus, there has not
been any material adverse change in the business, properties
or financial condition of FPL nor has any material transaction
been entered into by FPL other than changes and transactions
contemplated by the Registration Statement and Prospectus, and
transactions in the ordinary course of business. FPL has no
material contingent obligation which is not disclosed in the
Registration Statement and Prospectus.
(e) The consummation of the transactions herein contemplated
and the fulfillment of the terms hereof on the part of FPL to
be fulfilled have been duly authorized by all necessary
corporate action of FPL in accordance with the provisions of
its Restated Articles of Incorporation, as amended (the
"Charter"), by-laws and applicable law, and the Securities
when issued and delivered as provided herein will constitute
legal, valid and binding obligations of FPL in accordance with
their terms, except as limited by bankruptcy, insolvency or
other laws affecting mortgagees' and other creditors' rights
generally and equitable limitations on the enforceability of
specific remedies.
(f) The consummation of the transactions herein contemplated
and the fulfillment of the terms hereof and the compliance by
FPL with all the terms and provisions of the Mortgage will not
result in a breach of any of the terms or provisions of, or
constitute a default under, FPL's Charter or by-laws or any
indenture, mortgage, deed of trust or other agreement or
instrument to which FPL is now a party, or violate any law or
any order, rule, decree or regulation applicable to FPL of any
Federal or state court, regulatory board or body or
administrative agency having jurisdiction over FPL or any of
its property, except where such breach, default or violation
would not have a material adverse effect on the business,
properties or financial condition of FPL.
(g) All the property to be subjected to the lien of the
Mortgage will be adequately described therein.
4. SETTLEMENT. Delivery of Securities in fully registered
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form shall be made in accordance with the Procedures. The date
of authentication and issuance of the Global Security (as defined
in the Procedures attached hereto) sold against delivery to FPL
of funds in payment therefor is herein called the "Settlement
Date." Delivery of, and payment for, Securities sold to the
Agents as principal shall be made in accordance with the Terms
Agreement (as defined in Section 12 hereof) relating to such
Securities.
5. OBLIGATIONS OF AGENTS.
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(a) In soliciting purchases of the Securities from FPL by
others (including customers of the Agents), each Agent will be
acting as sales agent for FPL and not as principal. Each
Agent will use its reasonable best efforts to solicit and
receive offers to purchase the Securities on behalf of FPL as
contemplated hereby; provided, that each Agent in its sole
discretion may suspend from time to time its efforts in
offering for sale, and soliciting purchases of, the
Securities. In any transaction where an Agent has acted as
agent for FPL and has not purchased as principal, the Agent
will make reasonable efforts to obtain performance by each
purchaser of Securities from FPL, but the Agent will not have
any liability to FPL in the event any such purchase is not
consummated for any reason. FPL also understands that under
no circumstances shall an Agent be obligated to purchase any
Securities for its own account except to the extent that such
Agent has acted as principal in purchasing Securities or has
made a firm commitment with FPL in connection with an offering
which has been expressly authorized by FPL and agreed to by
such Agent. Unless FPL and the Agents shall otherwise agree,
all purchases by an Agent as principal shall be made pursuant
to a Terms Agreement.
(b) Each Agent agrees that in carrying out the transactions
contemplated by this agreement, it will observe and comply
with all securities or blue sky laws, regulations, rules and
ordinances in any jurisdiction in which the Securities may be
offered, sold or delivered applicable to it as Agent
hereunder. Each Agent agrees not to cause any advertisement
of the Securities to be published in any newspaper or
periodical or posted in any public place and not to publicly
issue any circular relating to the Securities other than the
Prospectus, except in any case with the express consent of
FPL.
6. COVENANTS OF FPL. FPL agrees:
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(a) To advise the Agents (i) when any amendment to the
Registration Statement, except any Incorporated Documents, has
become effective or any supplement to the Prospectus has been
filed, (ii) of any request by the Commission for any amendment
of the Registration Statement or the Prospectus or for any
additional information with respect to the Registration
Statement or the Prospectus, (iii) of the issuance by the
Commission of any "stop order" suspending the effectiveness of
the Registration Statement or the institution, or advice from
the Commission that it is considering the institution, of any
proceeding for that purpose, and (iv) of the receipt by FPL of
any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such
purpose. FPL will use its best efforts to prevent the
issuance of any such "stop order" and, if issued, to obtain as
soon as possible the withdrawal thereof. FPL will not file
any amendment to the Registration Statement or supplement to
the Prospectus unless FPL has furnished the Agents through
Winthrop, Xxxxxxx, Xxxxxx & Xxxxxxx, who are acting as counsel
for the Agents ("Counsel for the Agents") copies for its
review prior to filing, except that FPL is not required to so
furnish the Agents with copies of any amendment to the
Registration Statement or supplement to the Prospectus if such
amendment or supplement is a Form 8-K filed solely for the
purpose of filing, pursuant to Item 601 of Regulation S-K,
exhibits unrelated to the transactions contemplated by this
Distribution Agreement;
(b) To furnish such proper information as may be lawfully
required and otherwise cooperate in qualifying the Securities
for offer and sale under the blue sky laws of such
jurisdictions as the Agents may designate and will pay filing
fees in connection with such qualification, in the aggregate
not exceeding $5,000, provided that FPL shall not be required
to qualify as a foreign corporation or dealer in securities,
or to file any consents to service of process under the laws
of any jurisdictions, or to meet other requirements deemed by
FPL to be unduly burdensome;
(c) To prepare and file, from time to time, such statements
and reports as are or may be required of it as the issuer of
the Securities to continue such qualifications under such
securities laws in effect for so long as this agreement
remains in effect;
(d) To furnish to the Agents and Counsel for the Agents one
signed copy of the Registration Statement, or if a signed copy
is not available, one conformed copy of the Registration
Statement certified by an officer of FPL to be in the form as
originally filed, including Incorporated Documents and all
exhibits except those incorporated by reference, including a
signed or conformed copy of each consent and certificate
included therein or filed as an exhibit thereto. FPL will
furnish the Agents as soon as practicable after the date of
this agreement as many copies of the Prospectus as the Agents
may reasonably request for the purposes contemplated by the
Securities Act;
(e) To deliver to the Agents without charge as soon as
practicable after the Registration Statement and each post-
effective amendment thereto becomes effective, and as soon as
practicable after each supplement to the Prospectus has been
filed, as many copies of the Prospectus as then amended or
supplemented as the Agents may reasonably request for the
purposes contemplated by the Securities Act;
(f) To file timely all reports, and amendments thereto,
required to be filed by FPL with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act subsequent to the
original effective date of the Registration Statement and for
so long as this agreement shall remain in effect and to
deliver to the Agents without charge promptly after the filing
thereof as many copies of each such report and amendment
(excluding exhibits) as the Agents may reasonably request;
(g) To deliver to the Agents, so long as this agreement shall
remain in effect, as promptly as possible copies of any
published reports of FPL to its security holders, including
any annual report and quarterly reports of FPL, and any other
financial reports made generally available to its security
holders;
(h) If an earnings statement is not included in a quarterly
report of FPL to its security holders, to make generally
available to its security holders once in each calendar
quarter, commencing with the quarter beginning after the date
of this agreement and ending with the first calendar quarter
after the quarter which ends twelve consecutive months after
the end of the calendar quarter in which the last sale of
Securities effected pursuant hereto occurs, an earnings
statement (which need not be audited) of FPL in reasonable
detail, covering a period of twelve consecutive months ending
at the close of the next preceding calendar quarter, which
earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act;
(i) So long as this agreement remains in effect and at any
time thereafter when delivery of a prospectus shall be
required by the Securities Act in connection with the sale of
any of the Securities or resale of any Securities purchased by
the Agents as principal hereunder, if any event relating to or
affecting FPL, or of which FPL shall be advised in writing by
the Agents shall occur, which, in FPL's opinion, should be set
forth in a supplement to or an amendment of the Prospectus in
order to make the Prospectus not misleading in the light of
the circumstances when it is delivered, FPL will forthwith (i)
notify the Agents promptly to suspend offers for sale and
solicitations of purchases of the Securities, and promptly
after the receipt of such notice the Agents will suspend
offers for sale and solicitations of purchases of the
Securities and cease using the Prospectus and (ii) at its
expense prepare and furnish to the Agents a reasonable number
of copies of a supplement or supplements or an amendment or
amendments to the Prospectus which will supplement or amend
the Prospectus so that as so supplemented or amended it will
not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the
statements contained therein, in the light of the
circumstances when the Prospectus is delivered, not misleading
(provided that should such event relate solely to the
activities of any of the Agents, then the Agents shall assume
the expense of preparing and furnishing copies of any such
amendment or supplement) and will advise the Agents when they
may resume solicitation of offers to purchase the Securities;
(j) To pay all expenses, fees and taxes (but not including
any transfer taxes) in connection with (i) the preparation and
filing and printing of copies of the Registration Statement
and amendments thereto and the Prospectus and amendments and
supplements thereto, including in each case all Incorporated
Documents, and this agreement, (ii) the issue and delivery of
the Securities, (iii) the qualification for offer and sale of
the Securities under state securities laws as aforesaid
(subject to the limit on such expenses and fees specified in
Section 6(b) hereof) and (iv) the preparation, execution and
delivery of the Supplemental Indenture. FPL also agrees to
pay or reimburse the Agents for the reasonable fees and
expenses of Counsel for the Agents for their continuing advice
and services in connection with the transactions contemplated
hereby including advice and services in connection with any
Subsequent Registration Statement and (unless otherwise
specified in a Terms Agreement) any purchase by the Agents or
any Agent pursuant to Section 12 hereof. Semi-annually the
Agents agree to notify FPL in writing in reasonable detail of
such fees and expenses of Counsel for the Agents; and
(k) Promptly after the execution of this agreement FPL will
reimburse the Agents for the reasonable fees and expenses of
Counsel for the Agents and other out-of-pocket expenses of the
Agents related to the Agents' services in connection with the
implementation of the program for the offer and sale of the
Securities as contemplated hereby not exceeding in the
aggregate $ (exclusive of fees and expenses referred
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to in Sections 6(b) and 6(j) hereof).
7. CONDITIONS OF AGENTS' OBLIGATIONS. The obligations of
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the Agents to act and continue to act as Agents hereunder, and
the obligation of the Agents to purchase Securities as principal
pursuant to any Terms Agreement, shall be subject to the accuracy
of, and compliance with, the representations and warranties of
FPL contained herein at the date of this agreement and any
Settlement Date (except for immaterial details), to the
performance by FPL of its obligations to be performed hereunder
(except for immaterial details) and to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect; no order of the
Commission directed to the adequacy of any Incorporated
Document shall have been issued; no proceedings for either
such purpose shall be pending before, or threatened by, the
Commission; at the date of this agreement the Agents shall
have received a certificate signed by FPL to the effect that,
to the best of its knowledge, no such order is in effect and
no proceedings for such purpose are pending before, or, to the
knowledge of FPL, threatened by, the Commission; and all
requests for additional information with respect to the
Registration Statement or the Prospectus on the part of the
Commission shall have been complied with by FPL to the
reasonable satisfaction of the Agent.
(b) At the date of this agreement, the Agents shall have
received from Steel Xxxxxx & Xxxxx LLP, counsel to FPL, a
favorable opinion (with a copy thereof for each of the
Agents), which opinion will not pass upon compliance with
provisions of the blue sky laws of any jurisdiction, in form
and substance satisfactory to Counsel for the Agents, to the
effect that:
(i) FPL is validly organized and existing corporation
and is in good standing under the laws of the State of
Florida, and is doing business in that State, and has
valid franchises, licenses and permits adequate for the
conduct of its business;
(ii) FPL is a corporation duly authorized by its Charter
to conduct the business which it is now conducting as set
forth in the Prospectus; FPL is subject, as to retail
rates and services, issuance of securities, accounting
and certain other matters, to the jurisdiction of the
Florida Public Service Commission; and FPL is subject, as
to wholesale rates, accounting and certain other matters
to the jurisdiction of the Federal Energy Regulatory
Commission;
(iii) the Mortgage has been duly and validly authorized
by all necessary corporate action, has been duly and
validly executed and delivered, and is a valid and
binding instrument and is enforceable in accordance with
its terms, except as limited by bankruptcy, insolvency or
other laws affecting mortgagees' and other creditors'
rights generally and equitable limitations on the
enforceability of specific remedies;
(iv) the Securities will, when issued and paid for as
contemplated herein, be valid and binding obligations of
FPL and, assuming payment of intangible tax and document
excise tax in accordance with the Procedures, such
Securities will be enforceable in accordance with their
terms, except as limited by bankruptcy, insolvency or
other laws affecting mortgagees' and other creditors'
rights generally and equitable limitations on the
enforceability of specific remedies, and will be entitled
to the benefit of the security afforded by the Mortgage;
(v) the Registration Statement, at the Effective Date,
and the Prospectus at the Rule 424 Date (except as to the
financial statements and other financial or statistical
data contained or incorporated by reference therein and
except for those parts of the Registration Statement that
constitute a Statement of Eligibility and Qualification
on Form T-1, or amendments thereto, upon which such
opinion need not pass) complied as to form in all
material respects with the applicable requirements of the
Securities Act and the applicable instructions, rules and
regulations of the Commission thereunder and the
Incorporated Documents (except as to the financial
statements and other financial or statistical data
contained or incorporated by reference therein, upon
which such opinion need not pass), at the time they were
filed with the Commission, complied as to form in all
material respects with the applicable requirements of the
Exchange Act and the applicable instructions, rules and
regulations of the Commission thereunder. The
Registration Statement is, at the date of this agreement,
effective under the Securities Act, and to the best of
the knowledge of said counsel, no proceedings for a stop
order with respect thereto are pending or threatened
under Section 8 of the Securities Act;
(vi) the consummation of the transactions herein
contemplated and the fulfillment of the terms hereof and
the compliance by FPL with all the terms and provisions
of the Mortgage will not result in a breach of any of the
terms or provisions of, or constitute a default under,
the Charter or by-laws of FPL, or any indenture,
mortgage, deed of trust or other agreement or instrument
the terms of which are known to such counsel to which FPL
is now a party, except where such breach or default would
not have a material adverse effect on the business,
properties or financial condition of FPL;
(vii) nothing has come to the attention of said counsel
that would lead them to believe that the Registration
Statement (except as to the financial statements and
other financial or statistical data contained or
incorporated by reference therein and except for those
parts of the Registration Statement that constitute a
Statement of Eligibility and Qualification on Form T-1,
or amendments thereto, upon which such opinion need not
pass), at the Effective Date, contained any untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus, at the Rule 424 Date and at the date of such
opinion (except as aforesaid), included or includes any
untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the
statements contained therein, in the light of the
circumstances under which they were made, not misleading,
provided that such counsel may state that their belief is
based upon their participation in the preparation of the
Registration Statement and the Prospectus and any
supplements and amendments thereto and review and
discussion of the contents thereof, but is without
independent check or verification except as specified;
(viii) the Securities are being issued and sold pursuant
to the authority contained in an order of the Florida
Public Service Commission, which authority is adequate to
permit the issuance and sale of the Securities during the
calendar year. To the best of the knowledge of said
counsel, said authorization is still in full force and
effect, and no further approval, authorization, consent
or order of any public board or body (other than in
connection or in compliance with the provisions of the
blue sky laws of any jurisdiction) is legally required
for the authorization of the issuance and sale of the
Securities;
(ix) the Securities conform, as to legal matters, with
the statements concerning them made under the headings
"New Bonds" and "Certain Terms of the Offered Notes" in
the Prospectus;
(x) the Mortgage is duly qualified under the 1939 Act;
(xi) this agreement has been duly and validly authorized,
executed and delivered by FPL;
(xii) as to the Mortgaged and Pledged Property, as
defined in the Mortgage, FPL has satisfactory title to
any easements and personal properties, and good and
marketable or insurable title in fee simple to any other
real properties (except as FPL's interest is stated to be
otherwise), subject only to Excepted Encumbrances, as
defined in the Mortgage, to any lien, if any, existing or
placed thereon at the time of acquisition thereof by FPL,
to minor defects and encumbrances customarily found in
the case of properties of like size and character and
which, in the opinion of said counsel, would not impair
the use thereof by FPL (all of which title exceptions,
encumbrances, liens and defects are hereinafter referred
to as "Exceptions"), and to the lien of the Mortgage; the
Mortgage constitutes a valid, direct, and first mortgage
lien upon the Mortgaged and Pledged Property now owned by
FPL, subject, however, to the Exceptions and as set forth
in the last sentence of this paragraph; and the
description of properties in the Mortgage is adequate to
constitute the Mortgage a lien on Mortgaged and Pledged
Property hereafter acquired by FPL, subject, however, to
the Exceptions and except as limited by bankruptcy,
insolvency or other laws affecting mortgagees' and other
creditors' rights generally and equitable limitations on
the enforceability of specific remedies. Mortgaged and
Pledged Property acquired after the most recent recording
of a supplemental indenture may also be subject to
possible rights of others which may attach prior to
recordation of a supplemental indenture subsequent to the
acquisition of such property.
(xiii) except as stated or referred to in the Prospectus,
there are no material pending legal proceedings to which
FPL is a party or of which property of FPL is the subject
which if determined adversely would have a material
effect on FPL, and, to the best of the knowledge of said
counsel, no such proceeding is known to be contemplated
by governmental authorities; and
(xiv) the information contained in the Prospectus which
is stated therein to have been made in reliance upon the
authority of said counsel or is specifically attributed
to them, has been reviewed by them and is correct.
In said opinion such counsel may rely as to all matters
of New York law on an opinion of Xxxx & Priest LLP and as to
matters relating to Mortgaged and Pledged Property located in
the State of Georgia on (i) prior opinions provided to FPL on
matters of Georgia law and (ii) a current opinion from Georgia
counsel.
(c) At the date of this agreement, the Agents shall have
received from Xxxx & Priest LLP, counsel to FPL, a favorable
opinion (with a copy thereof for each of the Agents), which
opinion will not pass upon compliance with provisions of the
blue sky laws of any jurisdiction, in form and substance
satisfactory to Counsel for the Agents, to the same effect
with respect to matters enumerated in paragraphs (iii) through
(xi) of subsection (b) of this Section 7. In said opinion
such counsel may rely as to all matters of Florida law on the
opinion of Steel Xxxxxx & Xxxxx LLP, and will not pass upon
the incorporation of FPL, titles to property, franchises or
the lien of the Mortgage.
(d) At the date of this agreement, the Agents shall have
received from Counsel for the Agents a favorable opinion (with
a copy thereof for each of the Agents) to the same effect with
respect to the matters enumerated in (iii) - (v) and (vii) -
(xi) of Subsection (b) of this Section 7. In said opinion
such counsel may rely as to all matters of Florida law on the
opinion of Steel Xxxxxx & Xxxxx LLP, and will not pass upon
the incorporation of FPL, titles to property, franchises or
the lien of the Mortgage.
(e) At the date of this agreement, each of the Agents shall
have received from Deloitte & Touche LLP a letter to the
effect that (i) they are independent public accountants with
respect to FPL within the meaning of the Securities Act and
the Exchange Act and the applicable published rules and
regulations thereunder; (ii) in their opinion, the
consolidated financial statements audited by them and
incorporated by reference in the Prospectus comply as to form
in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and
the published rules and regulations thereunder; (iii) on the
basis of a reading of the unaudited condensed consolidated
financial statements of FPL incorporated by reference in the
Prospectus, the latest available interim unaudited
consolidated financial statements of FPL since the close of
FPL's most recent audited fiscal year, the minutes and
consents of the Board of Directors, the Finance Committee of
the Board of Directors, the Stock Issuance Committee of the
Board of Directors, and the Shareholder of FPL since the end
of the most recent audited fiscal year, and inquiries of
officials of FPL who have responsibility for financial and
accounting matters (it being understood that the foregoing
procedures do not constitute an audit made in accordance with
generally accepted auditing standards and they would not
necessarily reveal matters of significance with respect to the
comments made in such letter, and accordingly that Deloitte &
Touche LLP make no representation as to the sufficiency of
such procedures for the several Agents' purposes), nothing has
come to their attention which caused them to believe that (a)
the unaudited condensed consolidated financial statements of
FPL incorporated by reference in the Prospectus (1) do not
comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the Exchange
Act and the published rules and regulations thereunder and (2)
except as disclosed in the Prospectus, are not in conformity
with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited
consolidated financial statements of FPL incorporated by
reference in the Prospectus, (b) at the date of the latest
available interim balance sheet read by them and at a
specified date not more than five days prior to the date of
this agreement there was any change in the common stock,
additional paid-in capital, preferred stock or long-term debt
of FPL and its subsidiaries, or decrease in their net assets,
in each case as compared with amounts shown in the most recent
consolidated balance sheet incorporated by reference in the
Prospectus, except in all instances for changes or decreases
which the Prospectus discloses have occurred or may occur, or
as occasioned by the declaration, provision for, or payment of
dividends, or which are described in such letter, or (c) for
the period from the date of the most recent consolidated
balance sheet incorporated by reference in the Prospectus to
the latest available interim balance sheet read by them and
for the period from the date of the latest available interim
balance sheet read by them to a specified date not more than
five days prior to the date of this agreement, there were any
decreases, as compared with the corresponding period in the
preceding year, in total consolidated operating revenues or in
net income or net income available to FPL Group, Inc., except
in all instances for decreases which the Prospectus discloses
have occurred or may occur, or which are described in such
letter; and (iv) they have carried out certain procedures and
made certain findings, as specified in such letter, with
respect to certain amounts included in the Prospectus and
Exhibit 12 to the Registration Statement and such other items
as the Agents may reasonably request.
(f) Since the respective most recent dates as of which
information is given in the Registration Statement and
Prospectus, there shall have been no material adverse change
in the business, properties or financial condition of FPL,
except as reflected in or contemplated by the Registration
Statement and Prospectus, and since such dates there shall
have been no material transaction entered into by FPL other
than transactions disclosed by the Registration Statement and
the Prospectus, and transactions in the ordinary course of
business; and at the date of this agreement the Agents shall
have received a certificate to such effect, signed by FPL.
(g) The Agents shall have received any certificate required
by Section 8(b) hereof.
(h) On the first Settlement Date occurring in each calendar
year, Steel Xxxxxx & Xxxxx LLP and Xxxx & Priest LLP shall
each provide to the Agents an opinion dated the Settlement
Date to the effect provided in Section 7(b)(viii).
(i) There shall be in full force and effect an authorization
of the Florida Public Service Commission with respect to the
issuance and sale of the Securities on the terms herein stated or
contemplated, and containing no provision unacceptable to the
Agents by reason of the fact that it is materially adverse to
FPL; and at the date of this agreement the Agents shall have
received a certificate to such effect, signed by FPL.
(j) All legal proceedings to be taken in connection with the
issuance and sale of the Securities shall have been
satisfactory in form and substance to Counsel for the Agents.
In case any of the conditions specified above in this
Section 7 shall not have been fulfilled, the Agents shall have no
further obligation to proceed with any offering, sale, or any
solicitation of purchase of the Securities or any purchase by the
Agents as principal of the Securities pursuant to any Terms
Agreement or otherwise.
8. FURTHER REPRESENTATIONS AND WARRANTIES BY FPL. FPL
---------------------------------------------
represents and warrants, and agrees with the Agents, that:
(a) Each authorization by FPL to the Agents to offer for
sale, or solicit purchases of, the Securities as provided in
the Procedures and each purchase of Securities by the Agent as
principal pursuant to any Terms Agreement shall be deemed to
be an affirmation that the representations and warranties of
FPL contained in this agreement are true and correct at the
time of such authorization or at the date of such Terms
Agreement, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the
time of delivery of and payment for Securities sold pursuant
to such authorization or Terms Agreement as provided in
Section 4 hereof or in such Terms Agreement, in each case as
though made at and as of each such time or date (except that
such representations and warranties shall be deemed to relate
to the Registration Statement and the Prospectus as amended
and supplemented to each such time or date);
(b) Delivery for Securities at each Settlement Date shall be
deemed to be a certification by FPL that (i) all intangible
and document excise taxes payable in accordance with
Settlement Procedure E of the Procedures have been duly paid
and (ii) any resolutions of the Board of Directors of FPL or
the Finance Committee of FPL's Board of Directors establishing
the Securities and authorizing their execution, authentication
and delivery pursuant to this agreement have not been amended
or superseded and remain in full force and effect; provided
that if such resolutions have been amended or superseded, at
each such Settlement Date occurring on or after such
resolutions shall be amended or superseded, FPL shall provide
the Agents with a certificate signed by FPL to the effect that
such resolutions have been so amended or superseded and
attaching to such certificate a copy of the resolutions as
amended or the superseding resolutions together with the
opinions of Steel Xxxxxx & Xxxxx LLP and Xxxx & Priest LLP,
each dated the Settlement Date, to the effect provided in
Section 7(b)(iv).
(c) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented, or a document
shall be filed under the Exchange Act which is incorporated by
reference in the Registration Statement or Prospectus (except
(i) supplements or amendments relating solely to the sale of
the Securities, (ii) supplements or amendments relating solely
to a change in the interest rates or maturities of the
Securities or a change in the principal amount of Securities
remaining to be sold or similar changes and (iii) Forms 8-K
that are filed solely for the purpose of filing exhibits
pursuant to Item 601 of Regulation S-K) or FPL shall sell
Securities to the Agents pursuant to a Terms Agreement (if
required by the Agents with respect to a particular Terms
Agreement), FPL shall furnish or cause to be furnished
forthwith to the Agents a certificate in form and substance
satisfactory to the Agents in their reasonable judgment to the
effect that the statements contained in the certificate
referred to in Section 7(f) hereof which were last furnished
to the Agents are true and correct at the time of such
amendment or supplement or filing or sale, as the case may be,
as though made at and as of such time (except that such
statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to
such time) or, in lieu of such a certificate, a certificate,
in form and substance satisfactory to the Agents in their
reasonable judgment, of the same general tenor as the
certificate referred to in said Section 7(f) but modified to
relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such
certificate;
(d) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented, or a document
shall be filed under the Exchange Act which is incorporated by
reference in the Registration Statement or Prospectus (except
(i) supplements or amendments relating solely to the sale of
the Securities, (ii) supplements or amendments relating solely
to a change in the interest rates or maturities of the
Securities or a change in the principal amount of Securities
remaining to be sold or similar changes and (iii) Forms 8-K
that are filed solely for the purpose of filing exhibits
pursuant to Item 601 of Regulation S-K) or FPL shall sell
Securities to the Agents pursuant to a Terms Agreement (if
required by the Agents with respect to a particular Terms
Agreement), FPL shall furnish or cause to be furnished
forthwith to the Agents written opinions of Steel Xxxxxx &
Xxxxx LLP and Xxxx & Priest LLP, counsel to FPL, dated the
date of delivery thereof and in form and substance
satisfactory to Counsel for the Agents, of the same tenor as
the opinions required by clauses (v), (vii) and (ix) of
Section 7(b) hereof but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to
the date of such opinions or, in lieu of such opinions, such
counsel may furnish to the Agents a letter to the effect that
the Agents may rely on such last opinions to the same extent
as though they were dated the date of such letter authorizing
reliance (except that statements in such last opinions shall
be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery
of such letters authorizing reliance);
(e) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented to set forth
financial information included in or derived from FPL's
financial statements, or any document containing financial
information so included or derived shall be filed under the
Exchange Act and incorporated by reference in the Prospectus
or FPL shall sell Securities to the Agents pursuant to a Terms
Agreement (if required by the Agents with respect to a
particular Terms Agreement), FPL shall cause Deloitte & Touche
LLP to furnish to the Agents a letter, dated five business
days after the date of filing such amendment or supplement or
document with the Commission, in form and substance
satisfactory to the Agents in their reasonable judgment, of
the same general tenor as the letter referred to in
Section 7(e) hereof but with appropriate modifications to
relate to the Registration Statement and the Prospectus as
amended and supplemented to the date of such letter and as may
be necessary to reflect changes in the financial information
included or incorporated by reference in the Registration
Statement and the Prospectus as then amended or supplemented
since the date of the last previous such letter furnished to
the Agents; provided, however, that no letter need be
furnished (except that if the Agents reasonably request, a
letter addressing solely the matters described in
Section 7(e)(iv) hereof shall be furnished) with respect to
year-end audited financial statements of FPL if copies of such
audited financial statements are delivered to the Agents; and
(f) Notwithstanding the foregoing, it is agreed that if, at
any time and from time to time during the term of this
agreement, FPL should deliver to the Agents notification of
its decision to suspend any sale of Securities hereunder, then
during the period of any such suspension or suspensions FPL
shall be relieved of its obligation to provide to the Agents
the certificate, opinions and letter required pursuant to
Sections 8(c), 8(d) and 8(e) hereof. However, whenever such a
suspension is lifted, FPL shall be required to deliver to the
Agents, prior to the resumption of any sale of Securities
hereunder, the most recent certificate, opinions and letter
which would have been required except for the suspension.
9. INDEMNIFICATION.
---------------
(a) FPL agrees to indemnify and hold harmless each Agent and
each person who controls such Agent within the meaning of
Section 15 of the Securities Act against any and all losses,
claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities
Act or any other statute or common law, and to reimburse each
such Agent and each such controlling person for any legal or
other expenses (including, to the extent hereinafter provided,
reasonable counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or liabilities
or in connection with defending any actions, insofar as such
losses, claims, damages, liabilities, expenses or actions
arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any
preliminary prospectus (if used prior to the Effective Date of
the Registration Statement), including all Incorporated
Documents, or in the Registration Statement or the Prospectus,
or in the Registration Statement or Prospectus, as amended or
supplemented (if any amendments or supplements thereto shall
have been furnished), or the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading;
provided, however, that the indemnity agreement contained in
this paragraph shall not apply to any such losses, claims,
damages, liabilities, expenses or actions arising out of, or
based upon, any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, if such
statement or omission was made in reliance upon and in
conformity with information furnished herein or to FPL in
writing by or on behalf of any such Agent, for use in
connection with the preparation of the Registration Statement
or the Prospectus or any amendment or supplement to either
thereof, or arising out of, or based upon, statements in or
omissions from that part of the Registration Statement which
shall constitute a Statement of Eligibility and Qualification
on Form T-1 and provided, further, that the indemnity
agreement contained in this paragraph in respect of any
preliminary prospectus shall not inure to the benefit of such
Agent (or of any person controlling such Agent) on account of
any such losses, claims, damages, liabilities, expenses or
actions arising from the sale of the Securities to any person
if such Agent shall have failed to send or give to such person
(i) with or prior to the written confirmation of such sale, a
copy of the Prospectus or the Prospectus as amended or
supplemented, if any amendments or supplements thereto shall
have been furnished at or prior to the time of written
confirmation of the sale involved, but exclusive of any
Incorporated Documents unless, with respect to the delivery of
any amendment or supplement, the alleged omission or alleged
untrue statement is not corrected in such amendment or
supplement at the time of confirmation, or (ii) with or prior
to the delivery of such Securities to such person, a copy of
any amendment or supplement to the Prospectus which shall have
been furnished subsequent to such written confirmation and
prior to the delivery of such Securities to such person,
exclusive of any Incorporated Documents unless, with respect
to the delivery of any amendment or supplement, the alleged
omission or alleged untrue statement was not corrected in such
amendment or supplement at the time of such delivery. Each
Agent agrees promptly to notify FPL, and each other Agent, of
the commencement of any litigation or proceedings against it
or any such controlling person in connection with the issuance
and sale of the Securities.
(b) Each Agent agrees to indemnify and hold harmless FPL, its
officers and directors, and each person who controls any
thereof within the meaning of Section 15 of the Securities Act
against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become
subject under the Securities Act or any other statute or
common law, and to reimburse each of them for any legal or
other expenses (including, to the extent hereinafter provided,
reasonable counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or liabilities,
or in connection with defending any actions, insofar as such
losses, claims, damages, liabilities, expenses or actions
arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the
Registration Statement or Prospectus as amended or
supplemented (if any amendments or supplements thereto shall
have been furnished) or the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading if
such statement or omission was made in reliance upon and in
conformity with information furnished herein or to FPL in
writing by or on behalf of such Agent, for use in connection
with the preparation of the Registration Statement or the
Prospectus or any amendment or supplement to either thereof.
The indemnity agreement of each Agent contained in this
paragraph shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of FPL or
any of its officers or its directors or any such controlling
person, and shall survive the delivery of the Securities. FPL
agrees promptly to notify each Agent of the commencement of
any litigation or proceedings against FPL (or any controlling
person thereof) or any of its officers or directors in
connection with the issuance and sale of the Securities.
(c) FPL and each of the Agents agree that, upon the receipt
of notice of the commencement of any action against it, its
officers and directors, or any person controlling it as
aforesaid, in respect of which indemnity may be sought on
account of any indemnity agreement contained herein, it will
promptly give written notice of the commencement thereof to
the party or parties against whom indemnity shall be sought
thereunder, but the omission so to notify such indemnifying
party or parties of any such action shall not relieve such
indemnifying party or parties from any liability which it or
they may have to the indemnified party otherwise than on
account of such indemnity agreement. In case such notice of
any such action shall be so given, such indemnifying party
shall be entitled to participate at its own expense in the
defense or, if it so elects, to assume (in conjunction with
any other indemnifying parties) the defense of such action, in
which event such defense shall be conducted by counsel chosen
by such indemnifying party or parties and satisfactory to the
indemnified party or parties who shall be defendant or
defendants in such action, and such defendant or defendants
shall bear the fees and expenses of any additional counsel
retained by them; but if the indemnifying party shall elect
not to assume the defense of such action, such indemnifying
party will reimburse such indemnified party or parties for the
reasonable fees and expenses of any counsel retained by them;
provided, however, if the defendants in any such action
include both the indemnified party and indemnifying party and
counsel for the indemnifying party shall have reasonably
concluded that there may be a conflict of interest involved in
the representation by such counsel of both the indemnifying
party and the indemnified party, the indemnified party or
parties shall have the right to select separate counsel,
satisfactory to the indemnifying party, to participate in the
defense of such action on behalf of such indemnified party or
parties (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one
separate counsel representing the indemnified parties who are
parties to such action).
10. SURVIVAL. The indemnity agreements contained in
--------
Section 9 hereof and the representations, warranties and other
statements of FPL and the Agents set forth in this agreement or
any Terms Agreement or made by FPL and the Agents pursuant to
this agreement or any Terms Agreement shall remain in full force
and effect, regardless of (i) any termination of this agreement,
(ii) any investigation made by or on behalf of the Agents or any
of their controlling persons or by or on behalf of FPL or any of
its officers, directors or controlling persons and
(iii) acceptance of delivery of and payment for Securities sold
hereunder.
11. TERMINATION.
-----------
(a) This agreement may be terminated at any time by any party
hereto upon the giving of written notice of such termination
to the other parties hereto effective at the close of business
on the date such notice is received. In the event of any such
termination, no party shall have any liability to any other
party hereto, except as provided in Section 1(e),
Section 5(b), Section 6(b), (i), (j) and (k) and Section 9
hereof and except that, if at the time of any such termination
the Agents shall have previously confirmed sales of Securities
for which delivery and payment has not yet been made, FPL
shall remain obligated in respect of such sales as provided in
Section 4 hereof and shall continue to have the obligations
provided in Section 8 hereof until delivery of and payment for
all Securities so sold have been completed.
(b) The Agents may terminate a Terms Agreement by delivering
written notice thereof to FPL, at any time prior to the
Settlement Date specified therein if (i) prior to such time
there shall have occurred any general suspension of trading in
securities on the New York Stock Exchange or there shall have
been established by The New York Stock Exchange, Inc. or by
the Commission or by any federal or state agency or by the
decision of any court any limitation on prices for such
trading or any restrictions on the distribution of securities,
or a general banking moratorium declared by New York or
federal authorities, or (ii) there shall have occurred any new
outbreak of hostilities including, but not limited to, an
escalation of hostilities which existed prior to the date of
such Terms Agreement or other national or international
calamity or crisis, the effect of any such event specified in
(i) or (ii) above on the financial markets of the United
States shall be such as to make it impracticable for the Agent
to enforce contracts for the sale of Securities. A Terms
Agreement may also be terminated at any time prior to the
Settlement Date specified therein if in the judgment of the
Agents the subject matter of any amendment or supplement to
the Registration Statement or the Prospectus prepared and
furnished by FPL reflects a material adverse change in the
business, properties or financial condition of FPL which
renders it either inadvisable to proceed with such offering,
if any, or inadvisable to proceed with the delivery of the
Securities to be purchased under such Terms Agreement. Any
termination of a Terms Agreement shall be without liability of
any party to any other party except as otherwise provided in
Section 6(i), the first sentence of Section 6(j), Section 9
and Section 10 hereof.
12. PURCHASES AS PRINCIPAL. Unless FPL and the Agents shall
----------------------
otherwise agree, each sale of Securities to the Agents as
principal for resale to others shall be made in accordance with
the terms of this agreement and any separate agreement specified
by FPL which will provide for the sale of such Securities to, and
the purchase and reoffering thereof by, the Agents. Each such
separate agreement, herein referred to as a "Terms Agreement,"
whether oral (it being understood that such oral agreement shall
be confirmed in writing prior to the Settlement Date) or in
writing shall be with respect to such information (as applicable)
as is specified in Exhibit C hereto. Any such writing may take
the form of an exchange of any standard form of written
telecommunication between the Agents and FPL. The Agents'
commitment to purchase Securities pursuant to any Terms Agreement
shall be deemed to have been made on the basis of the
representations and warranties of FPL herein contained and shall
be subject to the terms and conditions herein set forth. Such
Terms Agreement may also specify any requirements for the
opinions of counsel, accountants' letters and officers'
certificates pursuant to Section 8 hereof.
13. MISCELLANEOUS. The validity and interpretation of this
-------------
agreement shall be governed by the laws of the State of New York.
This agreement shall inure to the benefit of FPL, the Agents and,
with respect to the provisions of Section 9 hereof, each
controlling person referred to in said Section 9, and their
respective successors. Nothing in this agreement is intended or
shall be construed to give to any other person, firm or
corporation any legal or equitable right, remedy or claim under
or in respect of this agreement or any provision herein
contained. The term "successors" as used in this agreement shall
not include any purchaser, as such purchaser, of any Securities
from the Agents.
14. NOTICES. Except as otherwise specifically provided
-------
herein or in the Procedures, all communications hereunder shall
be in writing, or by telegram and, if to the Agents, shall be
mailed or delivered to:
or, if to FPL, shall be mailed or delivered to it at 000 Xxxxxxxx
Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000, Attention: Treasurer.
15. COUNTERPARTS. This agreement may be executed in any
number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be
deemed to be an original and all of which when taken together
shall constitute one and the same agreement.
If the foregoing correctly sets forth our understanding,
please indicate your acceptance thereof in the space provided
below for that purpose, whereupon this letter and your acceptance
shall constitute a binding agreement between us.
Very truly yours,
FLORIDA POWER & LIGHT COMPANY
By
----------------------------
Accepted and delivered as of
the date first written above
----------------------------
----------------------------
----------------------------
EXHIBIT A
FLORIDA POWER & LIGHT COMPANY
SECURED MEDIUM-TERM NOTES, SERIES
---
ADMINISTRATIVE PROCEDURES FOR FIXED AND VARIABLE RATE
SECURITIES ISSUED IN BOOK-ENTRY FORM
Secured Medium-Term Notes, Series , due from nine months to
---
thirty years from date of issue (the "Securities") are to be
offered on a continuing basis by Florida Power & Light Company
("FPL"). as agents (each an "Agent" and
--------------------
collectively, the "Agents"), have agreed to use their reasonable
best efforts to solicit offers to purchase the Securities. The
Securities are being sold pursuant to a Distribution Agreement
between FPL and the Agents dated (the "Distribution
------------
Agreement") to which these administrative procedures are attached
as an exhibit. The Securities will be issued under FPL's
Mortgage and Deed of Trust, dated as of January 1, 1944, to
Bankers Trust Company, as Trustee (the "Trustee"), and The
Florida National Bank of Jacksonville (now resigned), as
supplemented, pursuant to the Supplemental
--------------
Indenture dated as of (the "Mortgage"). The
--------------
Securities will either bear interest at a fixed rate (the "Fixed
Rate Securities") or at a variable rate (the "Variable Rate
Securities"). Bankers Trust Company will act as the paying agent
(the "Paying Agent") for the payment of principal of and premium,
if any, and interest on the Securities and will perform, as the
Paying Agent, unless otherwise specified, the other duties
specified herein. Terms defined in the Distribution Agreement
shall have the same meaning when used in this exhibit.
Each Security will be represented by a Global Security (as
defined below) delivered to Bankers Trust Company, as agent for
The Depository Trust Company ("DTC") and recorded in the book-
entry system maintained by DTC. An owner of a Security
represented by a Global Security will not be entitled to receive
a certificate representing such a Security.
Administrative procedures and specific terms of the offering
are explained below. Administrative responsibilities and record-
keeping functions will be performed by FPL's Treasurer or its
Assistant Treasurer.
In connection with the qualification of the Securities for
eligibility in the book-entry system maintained by DTC, Bankers
Trust Company will perform the custodial, document control and
administrative functions described below, in accordance with its
respective obligations under a Letter of Representations from FPL
and Bankers Trust Company to DTC dated as of June 19, 1992, and a
Medium-Term Note Certificate Agreement between Bankers Trust
Company and DTC dated as of October 21, 1988, and its obligations
as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS").
PRICE TO PUBLIC
---------------
Each Security will be issued at 100% of principal amount,
unless otherwise determined by FPL and specified in a supplement
to the Prospectus ("Pricing Supplement").
ISSUANCE
--------
On any date of Settlement (as defined under "Settlement"
below) for all Fixed Rate Securities, FPL will issue one or more
global securities in fully registered form without coupons (a
"Global Security") representing up to $
-------------------
principal amount of all such Fixed Rate Securities that have the
same Issue Price, Issue Date, Maturity Date, Interest Rate,
Interest Payment Dates and terms for redemption, if any (in each
case, and for all purposes of these administrative procedures, as
defined in the Prospectus (as defined in Section 3(a) of the
Distribution Agreement)) (collectively the "Fixed Rate Terms").
On any date of Settlement for all Variable Rate Securities, FPL
will issue one or more Global Securities representing up to
$______________ principal amount of all such Variable Rate
--------------
Securities that have the same Issue Price, Issue Date, Maturity
Date, base rate upon which interest may be determined (a "Base
Rate"), which may be the Commercial Paper Rate, the Treasury
Rate, LIBOR, the Cost of Funds Rate, the CD Rate, the Federal
Funds Rate, the Prime Rate or any other rate set forth by FPL,
Initial Interest Rate, Index Maturity, Spread or Alternate Rate
Event Spread, if any, minimum interest rate, if any, maximum
interest rate, if any, Interest Payment Dates and terms for
redemption, if any (collectively, the "Variable Rate Terms").
Each Global Security will be dated and issued as of the date of
its authentication by the Trustee. No Global Security will
represent any securities in certificated form.
MATURITIES
----------
Each Security will mature on a date mutually agreed upon by
the purchaser and FPL, such date being at least nine months but
not more than thirty years from the date of issuance.
DENOMINATIONS
-------------
The Securities will be initially issued in denominations of
$100,000 and any larger denomination which is an integral
multiple of $1,000. Global Securities will be denominated in
principal amounts not in excess of $150,000,000. If one or more
Securities having an aggregate principal amount in excess of
$150,000,000 would, but for the preceding sentence, be
represented by a single Global Security, then one Global Security
will be issued to represent each $150,000,000 principal amount of
such Security or Securities and an additional Global Security
will be issued to represent any remaining principal amount of
such Security or Securities. In such a case, each of the Global
Securities representing such Security or Securities shall be
assigned the same CUSIP number.
IDENTIFICATION NUMBERS
----------------------
FPL has arranged with the CUSIP Service Bureau of Standard &
Poor's Corporation (the "CUSIP Service Bureau") for the
reservation of one series of CUSIP numbers (including tranche
numbers), which series consists of approximately 900 CUSIP
numbers and relates to Global Securities representing the
Securities. FPL has obtained from the CUSIP Service Bureau a
written list of such series of reserved CUSIP numbers and has
delivered to Bankers Trust Company and to DTC's Underwriting
Department a written list of such 900 CUSIP numbers. Bankers
Trust Company will assign CUSIP numbers to Global Securities as
described below under Settlement Procedure "B". DTC will notify
the CUSIP Service Bureau periodically of the CUSIP numbers that
Bankers Trust Company has assigned to Global Securities. At any
time when fewer than 100 of the reserved CUSIP numbers of the
series remain unassigned to Global Securities, and if it deems
necessary, Bankers Trust Company or FPL will reserve additional
CUSIP numbers for assignment to Global Securities representing
the Securities. Upon obtaining such additional CUSIP numbers,
Bankers Trust Company or FPL shall deliver a list of such
additional CUSIP numbers to DTC's Underwriting Department.
REGISTRATION
------------
Each Global Security will be registered in the name of Cede &
Co., as nominee for DTC, on the bond register maintained under
the Mortgage. The beneficial owner of a Security (or one or more
indirect participants in DTC designated by such owner) will
designate one or more participants in DTC (with respect to such
Security, the "Participants") to act as agent or agents for such
owner in connection with the book-entry system maintained by DTC,
and DTC will record in book-entry form, in accordance with
instructions provided by such Participants, a credit balance with
respect to such beneficial owner in such Security in the account
of such Participants. The ownership interest of such beneficial
owner in such Security will be recorded through the records of
such Participants or through the separate records of such
Participants and one or more indirect participants in DTC.
TRANSFERS
---------
Transfers of a Security will be accomplished by book entries
made by DTC and, in turn, by Participants (and in certain cases,
one or more indirect participants in DTC) acting on behalf of
beneficial transferees and transferors of such Security.
CONSOLIDATIONS
--------------
After the first Interest Payment Date on individual issues of
the Securities, Bankers Trust Company will deliver to DTC's
Reorganization Department, Interactive Data Corporation and the
CUSIP Service Bureau [at least 30 days before the day on which
the consolidation is to be effective, as determined by Bankers
Trust Company (the "Exchange Date"),] a written notice of
consolidation specifying (i) the CUSIP numbers of two or more
outstanding Global Securities that represent Securities having
different original Issue Dates but otherwise the same Fixed Rate
Terms or Variable Rate Terms, as the case may be, and for which
interest has been paid to the same date, (ii) a date, occurring
at least thirty days after such written notice is delivered and
at least thirty days before the next Interest Payment Date for
such Securities, on which such Global Securities shall be
exchanged for a single replacement Global Security, (iii) a new
CUSIP number to be assigned to such replacement Global Security
and (iv) that the CUSIP numbers of the Global Securities to be
exchanged will no longer be valid. Upon receipt of such a
notice, DTC will send to its Participants (including Bankers
Trust Company) a written reorganization notice to the effect that
such exchange will occur on such date. On the specified Exchange
Date, Bankers Trust Company will exchange such Global Securities
for a single Global Security bearing the new CUSIP number, the
original Issue Dates, together with the respective principal
amounts to which they relate, for all exchanged Global Securities
and the CUSIP numbers of the exchanged Global Securities will, in
accordance with CUSIP Service Bureau procedures, be canceled and
not immediately reassigned. Notwithstanding the foregoing, if
the Global Securities to be exchanged exceed $150,000,000 in
aggregate principal amount, one Global Security will be
authenticated and issued to represent each $150,000,000 of
principal amount of the exchanged Global Security and an
additional Global Security will be authenticated and issued to
represent any remaining principal amount of such Global
Securities (see "Denominations" above).
INTEREST
--------
Interest on each Security will accrue from and including the
original Issue Date of, or the last date to which interest has
been paid on, the Global Security representing such Security.
Each payment of interest on a Security will include interest
accrued through the day preceding, as the case may be, the
Interest Payment Date (provided, however, that in the case of
Variable Rate Securities which reset daily or weekly, interest
payments will include interest accrued to but excluding the
Record Date (as defined below) immediately preceding the Interest
Payment Date), date of redemption or Maturity Date. Interest
payable on the Maturity Date or date of redemption of a Security
will be payable to the person to whom the principal of such
Security is payable. DTC will arrange for each pending deposit
message described under Settlement Procedure "C" below to be
transmitted to Standard & Poor's Corporation, which will use the
information in the message to include certain terms of the
related Global Security in the appropriate bond report published
by Standard & Poor's Corporation.
The Record Date with respect to any Interest Payment Date for
a Fixed Rate Security shall be the fifteenth business day
preceding such Interest Payment Date. The Record Date with
respect to any Interest Payment Date for a Variable Rate Security
shall be the date 15 calendar days (whether or not a business
day) preceding such Interest Payment Date.
Interest payments will be made on each Interest Payment Date
commencing with the first Interest Payment Date following the
original Issue Date; provided, however, that the first payment of
interest on any Global Security originally issued between a
Record Date and an Interest Payment Date will occur on the
Interest Payment Date following the next Record Date.
If an Interest Payment Date with respect to any Variable Rate
Security would otherwise fall on a day that is not a business day
with respect to such Security, such Interest Payment Date will be
the following day that is a business day with respect to such
Security (and no interest shall accrue on such payment for the
period from and after such Interest Payment Date), except that in
the case of a LIBOR Security, if such day falls in the next
calendar month, such Interest Payment Date will be the preceding
day that is a business day in London.
CALCULATION OF INTEREST
-----------------------
In the case of Fixed Rate Securities, interest (including
payments for partial periods) will be calculated on the basis of
a 360-day year of twelve 30-day months. Interest does not accrue
on the 31st day of any month. Interest rates on Variable Rate
Securities will be determined as set forth in the related Global
Security. Interest will be calculated in the case of (a)
Commercial Paper Rate, Prime Rate, LIBOR, Federal Funds Rate,
Cost of Funds Rate, and CD Rate Securities on the basis of the
actual number of days in the interest period divided by 360; and
(b) Treasury Rate Securities, on the basis of the actual number
of days in the interest period divided by the actual number of
days in the year.
INTEREST PAYMENTS
-----------------
Interest on Fixed Rate Securities will be payable semiannually
on January 1 and July 1 and at maturity. Interest will be
payable, in the case of the Variable Rate Securities which reset
(a) daily, weekly or monthly (other than Cost of Funds Rate
Securities), on the third Wednesday of each month or on the third
Wednesday of March, June, September and December of each year, as
specified pursuant to Settlement Procedure "A" below, or, in the
case of the Cost of Funds Rate Securities, all of which reset
monthly, on the first business day of each month or the first
business day of each March, June, September and December, as
specified pursuant to Settlement Procedure "A" below; (b)
quarterly, on the third Wednesday of March, June, September and
December of each year; (c) semiannually, on the third Wednesday
of each of the two months of each year specified pursuant to
Settlement Procedure "A" below; and (d) annually, on the third
Wednesday of the month specified pursuant to Settlement
Procedure "A" below and, in each case, at maturity.
With regard to Variable Rate Securities on which the interest
rate is reset daily or weekly, Bankers Trust Company shall
deliver to DTC's Dividend Department, Standard & Poor's
Corporation and Interactive Data Corporation on each day on which
the amount of interest to be paid on the following Interest
Payment Date (including the issue's first Interest Payment Date)
is determined a listing of the CUSIP number assigned to each such
issue along with corresponding specifications of the Record Date,
Interest Payment Date, and dollar amount of interest per $1,000
principal amount of the Securities to be paid on such Interest
Payment Date. For Variable Rate Securities on which the interest
rate is reset monthly, quarterly, semiannually, or annually,
Bankers Trust Company shall deliver a similar listing to Standard
& Poor's Corporation and Interactive Data Corporation on the day
interest payment amounts are determined.
Promptly after each Record Date for each issue of Fixed Rate
Securities, Bankers Trust Company will furnish FPL and DTC's
Dividend Department a written notice specifying by CUSIP number
the amount of interest to be paid on each Global Security on the
following Interest Payment Date (other than an Interest Payment
Date coinciding with the Maturity Date) and the total of such
amounts. DTC will confirm the amount payable on each Global
Security on such Interest Payment Date by reference to the
appropriate bond reports published by Standard & Poor's
Corporation. FPL will pay to Bankers Trust Company the total
amount of interest due on such Interest Payment Date (other than
on the Maturity Date), and Bankers Trust Company will pay such
amount to DTC at the times and in the manner set forth under
"Manner of Payment" below. The Participant, indirect participant
in DTC or other person responsible for forwarding payments and
materials directly to the beneficial owner of such Security, will
assume responsibility for withholding taxes on interest paid as
required by law.
Bankers Trust Company will take all action necessary so that
the Interest Payment Dates and the Record Dates with respect
thereto, for each Global Security, together with the amount of
interest payable on each of such Interest Payment Dates, shall be
listed in the appropriate daily bond report published by Standard
& Poor's Corporation.
MATURITY
--------
On or about the first business day of each month, Bankers
Trust Company will deliver to FPL and DTC a written list of
principal, interest and premium, if any, to be paid on each
Global Security maturing either on the Maturity Date or the date
of redemption in the following month. FPL and DTC will confirm
with Bankers Trust Company the amounts of such principal,
interest and premium, if any, payments with respect to each such
Global Security on or about the fifth business day preceding the
Maturity Date or the date of redemption, as the case may be, of
such Global Security. FPL will pay to Bankers Trust Company the
principal amount of such Global Security, together with interest
and premium, if any, due on such Maturity Date or date of
redemption. Bankers Trust Company will pay such amounts to DTC
at the times and in the manner set forth below under "Manner of
Payment". Promptly after payment to DTC of the principal,
interest and premium, if any, due at the Maturity Date or the
date of redemption of such Global Security, Bankers Trust Company
will cancel such Global Security in accordance with the terms of
the Mortgage. On the first business day of each month, Bankers
Trust Company will deliver to FPL a written statement indicating
the total principal amount of outstanding Global Securities as of
the immediately preceding business day.
MANNER OF PAYMENT
-----------------
The total amount of any principal, interest and premium, if
any, due on Global Securities on any Interest Payment Date or on
the Maturity Date or the date of redemption shall be paid by FPL
to Bankers Trust Company in immediately available funds for use
by Bankers Trust Company on such date. FPL will make such
payment on such Global Securities by wire transfer to Bankers
Trust Company or by Bankers Trust Company's debiting the account
of FPL maintained with Bankers Trust Company. FPL will confirm
such instructions in writing to Bankers Trust Company. Prior to
10:00 a.m. (New York City time) on each Maturity Date or date of
redemption or as soon as possible thereafter, Bankers Trust
Company will pay by separate wire transfer (using Fedwire message
entry instructions in a form previously agreed to with DTC) to an
account at the Federal Reserve Bank of New York previously agreed
to with DTC, in funds available for immediate use by DTC, each
payment of principal (together with interest thereon) due on
Global Securities on any Maturity Date or date of redemption. On
each Interest Payment Date, interest payments shall be made to
DTC in same day funds in accordance with existing arrangements
between Bankers Trust Company and DTC. Thereafter, on each such
date, DTC will pay, in accordance with its SDFS operating
procedures then in effect, such amounts in funds available for
immediate use to the respective Participants in whose names the
Securities represented by such Global Securities are recorded in
the book-entry system maintained by DTC. Neither FPL nor Bankers
Trust Company shall have any direct responsibility or liability
for the payment by DTC to such Participants of the principal of,
interest on and premium, if any, on the Securities.
PROCEDURE FOR POSTING
---------------------
FPL and the Agents will discuss from time to time the rates of
interest per annum to be borne by, the maturity, and other terms
of, Securities that may be sold as a result of the solicitation
of offers to purchase by the Agents.
ACCEPTANCE AND REJECTION OF OFFERS; AUTHORIZED PERSONS
------------------------------------------------------
Oral instructions regarding sales of Securities will be given
for FPL by [Xxxxx X. Xxxxx, Xxxxx Xxxxx], or such other persons
as may be designated from time to time. Oral instructions to
will be accepted by , or such other
------------ ----------------
persons as may be designated from time to time. Oral
instructions to will be accepted by
----------
, or such other persons as may be designated
-------------------
from time to time. Oral instructions to will be
---------------
accepted by , or such other persons as may be
-------------------
designated from time to time. Oral instructions to
will be accepted by , or
------------------ ------------------
such other persons as may be designated from time to time.
FPL shall have the sole right to accept offers to purchase
Securities from FPL and may reject any such offer in whole or in
part. Each Agent shall promptly communicate to FPL, orally or in
writing, each reasonable offer to purchase Securities from FPL
received by it other than those rejected by such Agent. Each
Agent shall have the right, in its discretion reasonably
exercised without advising FPL, to reject any offers in whole or
in part.
SETTLEMENT
----------
The receipt of immediately available funds by FPL in payment
for a Security (less the applicable commission) and the
authentication and issuance of the Global Security representing
such Security shall, with respect to such Security, constitute
"Settlement". All offers accepted by FPL will be settled three
business days from the date of acceptance by FPL pursuant to the
timetable for Settlement set forth below unless FPL and the
purchaser agree to Settlement on another day that shall be no
earlier than the next business day.
SETTLEMENT PROCEDURES
---------------------
In the event of a purchase of Securities by an Agent, as
principal, appropriate settlement details will be set forth in a
Terms Agreement to be entered into between such Agent and FPL.
Settlement procedures with regard to each Security sold
through each Agent shall be as follows:
X. Xxxx Agent will advise FPL by telephone (confirmed in
writing, which may include telex or facsimile) or by telex or
facsimile, of the following sale information:
1. Exact name of the purchaser.
2. Principal amount of the Security.
3. Issue price of the Security.
4. Issue date of the Security.
5. Settlement date.
6. Maturity date.
7. Interest rate.
(a) Fixed Rate Securities:
i) interest rate
(b) Variable Rate Securities:
i) base rate
ii) initial interest rate
iii) spread or alternate rate event spread, if
any
iv) interest reset dates
v) interest reset period
vi) interest payment dates
vii) interest payment period
viii) interest determination dates
ix) index maturity
x) maximum and minimum interest rates, if any
xi) calculation date
8. Redemption dates, if any, including any initial
redemption date, par date and limitation date.
9. Redemption premium, if any, including any initial
percentage and reduction percentage.
10. Agent's commission (to be paid in the form of a
discount from the proceeds remitted to FPL upon Settlement) and
its certification that the purchasers of the Security have been
solicited solely by such Agent.
11. Net proceeds to FPL.
B. Bankers Trust Company will assign a CUSIP number to the
Global Security representing such Security and FPL will advise
Bankers Trust Company by telephone or by telex or facsimile of
the information set forth in Settlement Procedure "A" above to be
confirmed in a written request for the authentication and
delivery of such Global Security, such CUSIP number and the name
of such Agent. Bankers Trust Company will also notify the Agent
of such CUSIP number by telephone as soon as practicable. Each
such communication by FPL shall constitute a representation and
warranty by FPL to Bankers Trust Company and each Agent that (i)
such Security is then, and at the time of issuance and sale
thereof will be, duly authorized for issuance and sale by FPL,
(ii) the Global Security representing such Security will conform
with the terms of the Mortgage pursuant to which such Security
and Global Security are issued and (iii) upon authentication and
delivery of such Global Security, the aggregate principal amount
of all Securities initially offered and issued under the Mortgage
will not exceed $ (except for Global Securities
------------------
or Securities represented by and authenticated and delivered in
exchange for or in lieu of Securities in accordance with the
Mortgage).
C. Bankers Trust Company will enter a pending deposit
message through DTC's Participant Terminal System, providing the
following settlement information to DTC, and such information
will be routed to Standard & Poor's Corporation through DTC:
1. The information set forth in Settlement
Procedure "A".
2. Identification as a Fixed Rate Security or a
Variable Rate Security.
3. Initial Interest Payment Date for such Security,
number of days by which such date succeeds the related Record
Date (or, in the case of Variable Rate Securities which reset
daily or weekly, the date five calendar days preceding the
Interest Payment Date) and amount of interest payable on such
Interest Payment Date.
4. CUSIP number of the Global Security representing
such Security.
5. Whether such Global Security will represent any
other Security (to the extent known at such time).
6. Interest payment period.
D. Bankers Trust Company will complete and authenticate the
Global Security representing such Security.
E. FPL will cause the appropriate amount of intangible tax
and document excise tax to be paid in accordance with applicable
Florida law and Georgia law.
X. Xxxxx Xxxxxx & Xxxxx LLP will (by telecopy followed by an
original copy) provide Bankers Trust Company with an opinion
regarding authentication.
G. DTC will credit such Security to Bankers Trust Company's
participant account at DTC.
H. Bankers Trust Company will enter an SDFS deliver order
through DTC's Participant Terminal System instructing DTC to (i)
debit such Security to Bankers Trust Company's participant
account and credit such Security to such Agent's participant
account and (ii) debit such Agent's settlement account and credit
Bankers Trust Company's settlement account for an amount equal to
the price of such Security less such Agent's commission. The
entry of such a deliver order shall constitute a representation
and warranty by Bankers Trust Company to DTC that (a) the Global
Security representing such Security has been issued and
authenticated and (b) Bankers Trust Company is holding such
Global Security pursuant to the Secured Medium-Term Note
Certificate Agreement between Bankers Trust Company and DTC.
I. Such Agent will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC (i) to debit such
Security to such Agent's participant account and credit such
Security to the participant accounts of the Participants with
respect to such Security and (ii) to debit the settlement
accounts of such Participants and credit the settlement account
of such Agent for an amount equal to the price of such Security.
J. Bankers Trust Company will transfer to the account of FPL
maintained at Bankers Trust Company of New York, New York, in
immediately available funds in the amount transferred to Bankers
Trust Company in accordance with Settlement Procedure "H" upon
receipt of such funds.
X. Xxxx Agent will confirm the purchase of such Security to
the purchaser either by transmitting to the Participants with
respect to such Security a confirmation order or orders through
DTC's institutional delivery system or by mailing a written
confirmation to such purchaser. Such Agent will deliver to the
purchaser a copy of the most recent Prospectus applicable to the
Security with or prior to any written offer of Securities and the
confirmation and payment by the purchaser for the Security.
L. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "H" and "I" will be settled in
accordance with SDFS operating procedures in effect on the
Settlement Date.
M. Bankers Trust Company will send a copy of the Global
Security by first-class mail to FPL together with a statement
setting forth the principal amount of Securities outstanding as
of the related Settlement Date after giving effect to such
transaction and all other offers to purchase Securities of which
FPL has advised Bankers Trust Company but which have not yet been
settled.
SETTLEMENT PROCEDURES TIMETABLE
-------------------------------
For offers accepted by FPL, Settlement procedures "A" through
"L" set forth above shall be completed to the extent possible at
or before the respective times set forth below:
----------------------------------------------------------------
Settlement Procedure Time (New York)
----------------------------------------------------------------
A (1-11) 11 a.m. on the sale date
----------------------------------------------------------------
B 12 Noon on the sale date
----------------------------------------------------------------
C 2 p.m. on the sale date
----------------------------------------------------------------
D-F 9 a.m. on the Settlement Date
----------------------------------------------------------------
G 10 a.m. on the Settlement Date
----------------------------------------------------------------
H-I 2 p.m. on the Settlement Date
----------------------------------------------------------------
J-K 4:45 p.m. on the Settlement Date
----------------------------------------------------------------
L 3:30 p.m. on the Settlement Date
----------------------------------------------------------------
If a sale is to be settled more than one business day after
the sale date, Settlement Procedures "A", "B" and "C" shall be
completed as soon as practicable but no later than 11 a.m.,
12 Noon and 2:00 p.m., as the case may be, on the first business
day after the sale date. In connection with a sale which is to
be settled more than one business day after the sale date, if the
initial interest rate for a Variable Rate Note is not known at
the time that Settlement Procedure "A" is completed, Settlement
Procedures "B" and "C" shall be completed as soon as such rates
have been determined, but no later than 12 Noon and 2:00 p.m., as
the case may be, on the second business day before the Settlement
Date. Settlement Procedures "L" and "J" are subject to extension
in accordance with any extension of Fedwire closing deadlines and
in other events specified in the SDFS operating procedures in
effect on the Settlement Date.
If Settlement of a Security is rescheduled or canceled, FPL
will instruct Bankers Trust Company to deliver to DTC a
cancellation message to such effect by no later than 12 Noon on
the business day immediately preceding the scheduled Settlement
Date and Bankers Trust Company will enter such order by 2:00 p.m.
through DTC's Participation Terminal System.
PRICING SUPPLEMENT
------------------
If FPL accepts an offer to purchase a Security, FPL will
prepare a Pricing Supplement reflecting the terms of such
Security and will arrange to have ten copies of the Pricing
Supplement filed with the Commission not later than the close of
business on the second Business Day following such acceptance of
an offer to purchase such Security and will supply at least ten
copies of the Pricing Supplement to the Agent. The Agent will
cause the Prospectus and Pricing Supplement to be delivered to
the purchaser of the Security in accordance with the procedures
set forth in "Delivery of Prospectus" below.
FAILURE TO SETTLE
-----------------
If Bankers Trust Company or the Agent fails to enter an SDFS
deliver order with respect to a Security pursuant to Settlement
Procedure "H" or "I", Bankers Trust Company may deliver to DTC,
through DTC's Participant Terminal System, as soon as
practicable, a withdrawal message instructing DTC to debit such
Security to Bankers Trust Company's participant account, provided
that Bankers Trust Company's participant account contains a
principal amount of the Global Security representing such
Security that is at least equal to the principal amount to be
debited. If a withdrawal message is processed with respect to
all the Securities represented by a Global Security, Bankers
Trust Company will mark such Global Security "canceled", make
appropriate entries in Bankers Trust Company's records and send
such canceled Global Security to FPL. The CUSIP number assigned
to such Global Security shall, in accordance with CUSIP Service
Bureau procedures, be canceled and not immediately reassigned.
If a withdrawal message is processed with respect to one or more,
but not all, of the Securities represented by a Global Security,
Bankers Trust Company will exchange such Global Security for
another Global Security, which shall represent the Securities
previously represented by the surrendered Global Security with
respect to which a withdrawal message has not been processed and
shall bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Security is not timely paid to
the Participants with respect to such Security by the beneficial
purchaser thereof (or a person, including an indirect participant
in DTC, acting on behalf of such purchaser), such Participants
and, in turn, the Agent for such Security may enter SDFS deliver
orders through DTC's Participant Terminal System reversing the
orders entered pursuant to Settlement Procedures "I" and "H",
respectively. The Agent will notify Xxxxx X. Xxxxx or Xxxxx
Xxxxx of FPL by telephone, confirmed in writing, of such failure.
Thereafter, Bankers Trust Company will deliver the withdrawal
message and take the related actions described in the preceding
paragraph.
Notwithstanding the foregoing, upon any failure to settle with
respect to a Security, DTC may take any actions in accordance
with its SDFS operating procedures then in effect. In the event
of a failure to settle with respect to one or more, but not all,
of the Securities to have been represented by a Global Security,
the Trustee will provide, in accordance with Settlement Procedure
"D", for the authentication and issuance of a Global Security
representing the other Securities to have been represented by
such Global Security and will make appropriate entries in its
records.
PROCEDURE FOR RATE CHANGES
--------------------------
When a decision has been reached to change interest rates on
or other variable terms with respect to any Securities being sold
by FPL, FPL will promptly advise the Agents and the Agents will
forthwith suspend solicitation of offers to purchase such
Securities. The Agents will telephone FPL with recommendations
as to the changed interest rates or other variable terms. At
such time as FPL has advised each of the Agents of the new
interest rates on or other variable terms with respect to the
Securities, the Agents may resume solicitation of offers to
purchase such Securities. Until such time only "indications of
interest" may be recorded.
SUSPENSION OF SOLICITATION; AMENDMENT OR SUPPLEMENT
---------------------------------------------------
If, during any period in which, in the opinion of Counsel for
the Agents, a prospectus relating to the Securities is required
to be delivered under the Securities Act, any event occurs as a
result of which the Prospectus would include an untrue statement
of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary
at any time to amend the Prospectus to comply with the Securities
Act, FPL will notify the Agents promptly to suspend solicitation
of purchases of the Securities and each Agent shall suspend its
solicitations of purchases of Securities; and if FPL shall decide
to amend or supplement the Registration Statement or the
Prospectus, it will promptly advise the Agents by telephone (with
confirmation in writing) and will promptly prepare and file with
the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance. Upon the Agents' receipt of such amendment or
supplement and advice from FPL that solicitations may be resumed,
the Agents will resume solicitations of purchases of the
Securities.
In addition, FPL may instruct the Agents to suspend
solicitation of offers to purchase at any time. Upon receipt of
such instructions the Agents will forthwith suspend solicitation
of offers to purchase from FPL until such time as FPL has advised
them that solicitation of offers to purchase may be resumed. If
FPL decides to amend or supplement the Registration Statement or
the Prospectus relating to the Securities (other than to change
interest rates, maturity dates and/or redemption terms), it will
promptly advise the Agents and Bankers Trust Company and will
furnish the Agents and Bankers Trust Company copies of the
proposed amendment or supplement.
In the event that at the time the Agents, at the direction of
FPL, suspend solicitation of offers to purchase from FPL there
shall be any orders outstanding which have been accepted but
which have not been settled, FPL will promptly advise the Agents
and Bankers Trust Company whether such orders may be settled and
whether copies of the Prospectus as theretofore amended and/or
supplemented as in effect at the time of the suspension may be
delivered in connection with the settlement of such orders. FPL
will have the sole responsibility for such decision and for any
arrangement which may be made in the event that FPL determines
that such orders may not be settled or that copies of such
Prospectus may not be so delivered.
DELIVERY OF PROSPECTUS
----------------------
Each Agent will provide a copy of the relevant Prospectus,
appropriately amended or supplemented, which must accompany or
precede each written offer of a Security by such Agent, each
written confirmation of a sale sent to a purchaser or his agent
by such Agent and payment for each Security by a purchaser.
AUTHENTICITY OF SIGNATURES
--------------------------
FPL will cause Bankers Trust Company to furnish the Agents
from time to time with the specimen signatures of each of Bankers
Trust Company's officers, employees and agents who have been
authorized by Bankers Trust Company to authenticate Securities,
but the Agents will have no obligation or liability to FPL or
Bankers Trust Company in respect of the authenticity of the
signature of any officer, employee or agent of FPL or Bankers
Trust Company on any Security.
ADVERTISING COSTS
-----------------
FPL will determine with the Agents the amount and nature of
advertising that may be appropriate in offering the Securities.
Advertising expenses in connection with solicitation of offers to
purchase Securities from FPL will be paid by FPL.
EXHIBIT B
FPL agrees to pay each Agent a commission in the range of the
following percentages of the aggregate principal amount of
Securities sold to purchasers solicited by such Agent or, in the
event the Securities are being sold at a discount, the issue
price thereof. The actual commission to be paid by FPL to each
Agent will be set forth in separate agreements between FPL and
each of the Agents.
Commission Rate Range
(as a percentage of aggregate principal amount of
Securities sold or the issue price, as the case may be)
-------------------------------------------------------
Term
9 months to less than 12 months
12 months to less than 18 months
18 months to less than 24 months
2 years to less than 3 years
3 years to less than 4 years
4 years to less than 5 years
5 years to less than 6 years
6 years to less than 7 years
7 years to less than 8 years
8 years to less than 9 years
9 years to less than 10 years
10 years to less than 15 years
15 years to less than 20 years
20 years to 30 years
EXHIBIT C
TERMS AGREEMENT
, 19
-------------------- --
Florida Power & Light Company
000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Treasurer
The undersigned agrees to purchase $ principal
------------------
amount of the Securities of Florida Power & Light Company
pursuant to the terms and conditions set forth in the
Distribution Agreement dated , (the
------------------ ----
"Distribution Agreement") and in the Schedule attached hereto.
[Indicate whether the legal opinions and/or the accountant's
letter and/or the officer's certificate described in
Sections 8(c), 8(d) and 8(e), respectively, will or will not be
required.]
[Additional terms]
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF NEW YORK.
By
----------------------------
Accepted: , 19
----------------- --
Florida Power & Light Company
By
----------------------------------
SCHEDULE 1 TO EXHIBIT C
Registration Statement:
No. 333-
-------------------
Mortgage:
Mortgage and Deed of Trust dated as of January 1, 1944,
between FPL and Bankers Trust Company, as Trustee, and The
Florida National Bank of Jacksonville (now resigned) as
supplemented.
Aggregate Principal Amount:
Price to Public:
Purchase Price by :
-------------------
% of the principal amount of the Purchased Securities,
-----
plus accrued interest from to
-------------------
.
-------------------
Purchase Date and Time:
Settlement Date:
Method of and Specified Funds for
Payment of Purchase Price:
Closing Location:
Redemption Provisions:
Maturity:
If fixed rate securities
Interest Rate: ( %)
Interest Payment Date(s):
If variable rate securities
Base Rate:
Initial Interest Rate:
Interest Determination Dates:
Interest Reset Dates
Interest Reset Period:
Interest Payment Dates:
Index Maturity:
Interest Payment Period:
Maximum Interest Rate:
Minimum Interest Rate:
Calculation Date:
Spread or Alternate Rate Event Spread:
Spread Multiplier:
Syndicate Provisions:
(Set forth any provisions relating to underwriters' default
and step-up of amounts to be purchased by underwriters acting
with or , as the case
------------------- -------------------
may be).
Additional terms: