33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-4
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
-----------------------
FLORIDA POWER & LIGHT COMPANY
(Exact name of registrant as specified in its charter)
700 Universe Boulevard
Juno Beach, Florida 33408
(407) 694-4647
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Florida 4911 59-0247775
(State of Incorporation) (Primary Standard (I.R.S. Employer
Industrial Classification Identification
Code Number) No.)
----------------------
DENNIS P. COYLE JEFFREY I. MULLINS, ROBERT J. REGER, JR.,
General Counsel P.A. ESQ.
and Secretary Steel Hector & Davis Reid & Priest LLP
Florida Power & 1900 Phillips Point West 40 West 57th Street
Light Company 777 South Flagler Drive New York, New York
700 Universe Boulevard West Palm Beach, Florida 10019
Juno Beach, Florida 33401 (212) 603-2000
33408 (407) 650-7257
(407) 694-4644
(Names and addresses, including zip codes, and telephone numbers,
including area codes, of agents for service)
----------------------
It is respectfully requested that the Commission send copies of
all notices, orders and communications to:
STEPHEN K. WAITE, ESQ.
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004-1490
(212) 858-1000
----------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes
effective.
IF THE SECURITIES BEING REGISTERED ON THIS FORM ARE BEING OFFERED
IN CONNECTION WITH THE FORMATION OF A HOLDING COMPANY AND THERE
IS COMPLIANCE WITH GENERAL INSTRUCTION G, CHECK THE FOLLOWING
BOX. [ ]
CALCULATION OF REGISTRATION FEE
==========================================================================
Title of Proposed Proposed
Each Class Maximum Maximum
of Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Unit Price Fee
--------------------------------------------------------------------------
Subordinated
Deferrable
Interest
Debentures . . $125,000,000 $26.1875(1) $130,937,500(1) $45,151
==========================================================================
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(f)(1) based on the average high and low prices on the
New York Stock Exchange for Florida Power & Light Company's $2.00 No Par
Preferred Stock, Series A (Involuntary Liquidation Value $25 Per Share), on
May 12, 1995.
----------------------
The registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date
until the registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
=================================================================
<PAGE>
FLORIDA POWER & LIGHT COMPANY
Cross Reference Sheet
Pursuant to Item 501(b) of Regulation S-K Showing Location in Prospectus of
Items of Form S-4
A. INFORMATION ABOUT THE TRANSACTION
1. Forepart of the Registration Facing Page of Registration
Statement and Outside Front Statement; Cross Reference
Cover Page of Prospectus Sheet; Outside Front Cover
Page of Prospectus
2. Inside Front and Outside Back Inside Front Cover Page of
Cover Pages of Prospectus Prospectus; Outside Back Cover
Page of Prospectus; Available
Information; Incorporation of
Certain Documents by
Reference; Table of Contents
3. Risk Factors, Ratio of Earnings Prospectus Summary; Certain
to Fixed Charges, and Other Considerations Relating to the
Information Debentures and the Exchange
Offer; The Company; Selected
Financial Information
4. Terms of the Transaction The Exchange Offer;
Description of the Debentures;
Certain United States Federal
Income Tax Considerations
5. Pro Forma Financial Information Not Applicable
6. Material Contracts with the Not Applicable
Company Being Acquired
7. Additional Information Required Not Applicable
for Reoffering by Persons and
Parties Deemed to be Underwriters
8. Interests of Named Experts Not Applicable
and Counsel
9. Disclosure of Commission Position Part II of the Registration
on Indemnification for Securities Statement, Item 22.
Act Liabilities Undertakings
B. INFORMATION ABOUT THE REGISTRANT
10. Information with Respect to Not Applicable
S-3 Registrants
11. Incorporation of Certain Incorporation of Certain
Information by Reference Documents by Reference
12. Information with Respect to S-2 Not Applicable
or S-3 Registrants
13. Incorporation of Certain Not Applicable
Information by Reference
14. Information with Respect to Not Applicable
Registrants Other Than S-3 or
S-2 Registrants
C. INFORMATION ABOUT THE COMPANY BEING ACQUIRED
15. Information with Respect to Not Applicable
S-3 Companies
16. Information with Respect to Not Applicable
S-2 or S-3 Companies
17. Information with Respect to Not Applicable
Companies Other Than S-3 or
S-2 Companies
D. VOTING AND MANAGEMENT INFORMATION
18. Information if Proxies, Consents Not Applicable
or Authorizations Are To Be
Solicited
19. Information if Proxies, Consents Incorporation of Certain
or Authorizations Are Not to Be Documents by Reference
Solicited or in an Exchange Offer
<PAGE>
SUBJECT TO COMPLETION, DATED MAY 18, 1995
FLORIDA POWER & LIGHT COMPANY
OFFER TO EXCHANGE
___% Quarterly Income Debt Securities
(Subordinated Deferrable Interest Debentures, Due _____)
for
$2.00 No Par Preferred Stock, Series A
(Involuntary Liquidation Value $25 Per Share)
----------------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME
ON JUNE ___, 1995, UNLESS THE EXCHANGE OFFER IS EXTENDED
Florida Power & Light Company ("FPL" or the "Company") hereby offers,
upon the terms and subject to the conditions set forth in this Prospectus
and the accompanying Letter of Transmittal (the "Letter of Transmittal",
which, together with this Prospectus, constitutes the "Exchange Offer"), to
exchange its __% Quarterly Income Debt Securities (Subordinated Deferrable
Interest Debentures, Due _____) (the "Debentures") for its 5,000,000
outstanding shares of $2.00 No Par Preferred Stock, Series A (Involuntary
Liquidation Value $25 Per Share) (the "$2.00 Preferred Stock"). The
Debentures are offered in minimum denominations of $25 and integral
multiples thereof, and the $2.00 Preferred Stock has an involuntary
liquidation preference of $25 per share. Consequently, exchanges will be
made on the basis of $25 principal amount of Debentures for each share
of $2.00 Preferred Stock validly tendered and accepted for exchange in
the Exchange Offer. In addition, as part of the Exchange Offer, Holders
(as defined herein) of $2.00 Preferred Stock accepted for exchange will be
entitled to receive cash equal to the accrued and unpaid dividends on such
shares accumulating after May 31, 1995 to the Closing Date (as defined
herein) in lieu of such dividends on their shares of $2.00 Preferred Stock
accepted for exchange, such amount, without interest (the "Payment in Lieu
of Accumulated Dividends"), to be payable on the Closing Date.
Holders of $2.00 Preferred Stock may participate in the Exchange Offer
by properly completing and signing the Letter of Transmittal and tendering
their shares of $2.00 Preferred Stock in accordance with the instructions
contained in "The Exchange Offer - Procedures for Tendering" herein and in
the Letter of Transmittal prior to the Expiration Date (as defined herein).
Tenders of shares of $2.00 Preferred Stock pursuant to the Exchange Offer
may be withdrawn from the Exchange Offer at any time prior to the
Expiration Date, and, unless FPL has accepted such shares of $2.00
Preferred Stock for exchange, at any time after 40 Business Days (as
defined herein) from the date of this Prospectus. A Holder of shares of
$2.00 Preferred Stock who desires to tender such shares and whose
certificates for such shares are not immediately available, or who cannot
comply in a timely manner with the procedure for book-entry transfer, may
tender such shares by following procedures for guaranteed delivery set
forth in "The Exchange Offer - Procedures for Tendering - Guaranteed -
Delivery."
For a description of the other terms of the Exchange Offer, see "The
Exchange Offer - Terms of the Exchange Offer"; " - Expiration Date;
Extensions; Amendments; Termination"; " - Withdrawal of Tenders"; and the
Letter of Transmittal. FPL expressly reserves the right to extend, amend
or modify the terms of the Exchange Offer, and not to accept for exchange
any shares of $2.00 Preferred Stock, at any time prior to the Expiration
Date for any reason, including, without limitation, if fewer than 1,250,000
shares of $2.00 Preferred Stock are tendered (which condition may be waived
by FPL). See "The Exchange Offer - Expiration Date; Extensions;
Amendments; Termination."
SEE "PROSPECTUS SUMMARY - COMPARISON OF DEBENTURES AND $2.00 PREFERRED
STOCK" AND "CERTAIN CONSIDERATIONS RELATING TO THE DEBENTURES AND THE
EXCHANGE OFFER" FOR A DESCRIPTION OF THE PRINCIPAL TERMS OF, AND A
DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED IN CONNECTION WITH,
THE EXCHANGE OFFER AND AN INVESTMENT IN THE DEBENTURES, INCLUDING IN THE
CASE OF THE DEBENTURES THE PERIOD AND CIRCUMSTANCES DURING AND UNDER WHICH
PAYMENT OF INTEREST MAY BE DEFERRED AND CERTAIN RELATED FEDERAL INCOME TAX
CONSEQUENCES.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR BY ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
(Cover continued on following page)
The Dealer Managers for the Exchange Offer are:
__________ __________
----------------
The date of this Prospectus is May ___, 1995.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL
OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY JURISDICTION IN WHICH SUCH OFFER, SOLICITATION, OR SALE
WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE
SECURITIES LAWS OF ANY SUCH JURISDICTION.
<PAGE>
The Debentures will mature on _______________. Interest on the
Debentures is payable in equal quarterly installments, in arrears, on
March 31, June 30, September 30, and December 31 of each year (each an
"Interest Payment Date"), commencing September 30, 1995, to the persons in
whose name the Debentures are registered at the close of business
15 calendar days prior to the relevant Interest Payment Dates (each a
"Regular Record Date"); provided that, so long as an Event of Default (as
defined herein) has not occurred and is not continuing, FPL will have the
right to extend the interest payment period at any time and from time to
time on the Debentures to a period not exceeding 20 consecutive quarterly
interest payment periods and, as a consequence, the quarterly interest
payments on the Debentures would be deferred (but, to the extent allowed by
law, would continue to accrue with interest thereon compounded quarterly at
the rate of interest on the Debentures) during any such extended interest
payment period (each an "Extension Period"); and all interest will be due
and payable on the last Business Day of the Extension Period. In the event
that FPL exercises this right, FPL may not declare or pay dividends on, or
redeem, purchase or acquire, any of its Capital Stock (as defined herein)
during such Extension Period, except that FPL may make mandatory sinking
fund payments with respect to its 6.84% Preferred Stock, Series Q and
8.625% Preferred Stock, Series R. During any such Extension Period, FPL
may continue to extend the interest payment period, provided that the
aggregate interest payment period, as extended, may not exceed 20
consecutive quarterly interest payment periods or extend beyond the
maturity of the Debentures. Upon the termination of any Extension Period
and the payment of all amounts then due, FPL may elect a new Extension
Period, subject to the above requirements. Based upon FPL's current
financial condition and, in light of the restriction on payment of
dividends during an Extension Period, FPL believes that an extension of an
interest payment period on the Debentures is currently unlikely and has no
current intention to extend such an interest payment period. See
"Description of the Debentures Option to Extend Interest Payment Period."
The Debentures will be redeemable on or prior to February 28, 1997 at
the option of FPL, in whole or in part, upon not less than 30 nor more than
60 days' notice, at 108% of the principal amount redeemed, plus accrued and
unpaid interest, if any, to the redemption date, and thereafter at 100% of
the principal amount redeemed plus accrued and unpaid interest, if any, to
the redemption date; provided, however, that none of the Debentures shall
be redeemed prior to March 1, 1997, if such redemption is for the purpose,
or in anticipation, of refunding such Debentures through the use, directly
or indirectly, of funds borrowed by FPL at an effective interest cost to
FPL (calculated in accordance with acceptable financial practice) of less
than 8.2102% per annum. The obligations of FPL under the Debentures are
subordinate and junior in the right of payment to Senior Indebtedness (as
defined herein) of FPL. As of March 31, 1995, outstanding Senior
Indebtedness of FPL aggregated approximately $3.8 billion. See
"Description of the Debentures"; also, for a comparison of the redemption
terms of the Debentures and the $2.00 Preferred Stock, see "Prospectus
Summary - Comparison of Debentures and $2.00 Preferred Stock."
For United States federal income tax purposes, the exchange of
Debentures for $2.00 Preferred Stock pursuant to the Exchange Offer will be
a taxable transaction, and the Debentures will be treated as having been
issued with original issue discount ("OID"). The OID rules may accelerate
the timing of a Holder's recognition of interest income during an Extension
Period. For a discussion of these and other United States federal income
tax considerations relevant to the Exchange Offer, see "Certain United
States Federal Income Tax Consequences."
Application will be made to have the Debentures listed on the New York
Stock Exchange (the "NYSE").
The $2.00 Preferred Stock is listed and principally traded on the NYSE.
On May __, 1995, the last full day of trading prior to the first public
announcement of the Exchange Offer, the closing sales price of the $2.00
Preferred Stock on the NYSE as reported on the composite tape was
$______________ per share. Holders of the $2.00 Preferred Stock are urged
to obtain current market quotations for the $2.00 Preferred Stock. To the
extent that a certain number of shares of $2.00 Preferred Stock is tendered
and accepted in the Exchange Offer and/or the number of Holders of $2.00
Preferred Stock is reduced to below certain levels, FPL would be required
to delist the $2.00 Preferred Stock from the NYSE pursuant to NYSE rules
and regulations and the trading market for untendered $2.00 Preferred Stock
could be adversely affected. See "Listing and Trading of Debentures and
$2.00 Preferred Stock."
The Debentures constitute a new issue of securities with no established
trading market. While FPL will apply to have the Debentures listed on the
NYSE, there can be no assurance that an active trading market for the
Debentures will develop or be sustained in the future.
(Cover continued on following page)
<PAGE>
__________ and __________ have been retained as Dealer Managers to
solicit exchanges of Debentures for $2.00 Preferred Stock. See "The
Exchange Offer Dealer Managers." Georgeson & Company Inc. has been
retained to act as Information Agent and The Chase Manhattan Bank (National
Association) has been retained to act as Exchange Agent to assist with the
Exchange Offer.
Questions and requests for assistance may be directed to the Dealer
Managers or the Information Agent as set forth on the back cover of this
Prospectus. Requests for additional copies of this Prospectus, the Letter
of Transmittal and the Notice of Guaranteed Delivery may be directed to the
Information Agent.
____________________
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THE EXCHANGE OFFER, OTHER THAN THOSE
CONTAINED IN THIS PROSPECTUS. IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MAY NOT BE CALLED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY. THE COMPANY IS NOT AWARE OF ANY JURISDICTION IN WHICH THE MAKING
OF THE EXCHANGE OFFER IS NOT IN COMPLIANCE WITH APPLICABLE LAW. IF THE
COMPANY BECOMES AWARE OF ANY JURISDICTION IN WHICH THE MAKING OF THE
EXCHANGE OFFER WOULD NOT BE IN COMPLIANCE WITH APPLICABLE LAW, THE COMPANY
WILL MAKE A GOOD FAITH EFFORT TO COMPLY WITH SUCH LAW. IF, AFTER SUCH GOOD
FAITH EFFORT, THE COMPANY CANNOT COMPLY WITH ANY SUCH LAW, THE EXCHANGE
OFFER WILL NOT BE MADE TO (NOR WILL TENDERS BE ACCEPTED FROM OR ON BEHALF
OF) HOLDERS RESIDING IN SUCH JURISDICTIONS. IN ANY JURISDICTION WHERE THE
SECURITIES, BLUE SKY OR OTHER LAWS REQUIRE THE EXCHANGE OFFER TO BE MADE BY
OR THROUGH A LICENSED BROKER OR DEALER, THE EXCHANGE OFFER IS BEING MADE ON
BEHALF OF THE COMPANY BY THE DEALER MANAGERS OR ONE OR MORE REGISTERED
BROKERS OR DEALERS LICENSED UNDER THE LAWS OF SUCH JURISDICTION. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR ANY EXCHANGE MADE HEREUNDER SHALL UNDER
ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED
HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF OR THAT
THERE HAS BEEN NO CHANGE IN THE INFORMATION SET FORTH HEREIN OR IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
AVAILABLE INFORMATION
FPL is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and
Exchange Commission (the "Commission"). Reports, proxy statements and
other information filed by FPL with the Commission can be inspected and
copied at the public reference facilities maintained by the Commission at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549
and at the following Regional Offices of the Commission: New York Regional
Office, 7 World Trade Center, 13th Floor, New York, New York 10048 and
Chicago Regional Office, 500 West Madison Street, 14th Floor, Chicago,
Illinois 60661-2511. Copies of such material can also be obtained at
prescribed rates from the Public Reference Section of the Commission, 450
Fifth Street, N.W., Washington, D.C. 20549. Such reports, proxy statements
and other information can also be inspected at the offices of The New York
Stock Exchange, Inc., 20 Broad Street, New York, New York 10005 on which
the $2.00 Preferred Stock is listed.
This Prospectus constitutes a part of a registration statement on Form
S-4 (together with all amendments and exhibits, the "Registration
Statement") filed by FPL with the Commission under the Securities Act of
1933, as amended (the "Securities Act"). This Prospectus does not contain
all of the information contained in the Registration Statement, certain
parts of which are omitted in accordance with the rules and regulations of
the Commission. Statements contained herein concerning the provisions of
any document do not purport to be complete and, in each instance, are
qualified in all respects by reference to a copy of such document filed as
an exhibit to the Registration Statement or otherwise filed with the
Commission. Each such statement is subject to and qualified in its entirety
by such reference. Reference is made to such Registration Statement and to
the exhibits relating thereto for further information with respect to FPL
and the securities offered hereby.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which are on file with the Commission under the
Exchange Act, are incorporated by reference in this Prospectus and made a
part hereof:
(a) FPL's Annual Report on Form 10-K for the year ended December 31,
1994; and
(b) FPL's Quarterly Report on Form 10-Q for the quarter ended March
31, 1995.
All other documents filed by FPL with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the Closing Date shall be deemed to be
incorporated herein by reference. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of this Prospectus.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT
PRESENTED HEREIN OR DELIVERED HEREWITH. FPL WILL PROVIDE WITHOUT CHARGE TO
EACH PERSON, INCLUDING ANY BENEFICIAL OWNER, TO WHOM A COPY OF THIS
PROSPECTUS HAS BEEN DELIVERED, ON THE WRITTEN OR ORAL REQUEST OF ANY SUCH
PERSON, A COPY OF ANY OR ALL OF THE DOCUMENTS REFERRED TO ABOVE WHICH HAVE
BEEN OR MAY BE INCORPORATED IN THIS PROSPECTUS BY REFERENCE, OTHER THAN
EXHIBITS TO SUCH DOCUMENTS (UNLESS SUCH EXHIBITS ARE SPECIFICALLY
INCORPORATED BY REFERENCE INTO SUCH DOCUMENTS). REQUESTS SHOULD BE
DIRECTED TO SHAREHOLDER SERVICES, 700 UNIVERSE BOULEVARD, JUNO BEACH,
FLORIDA 33408, TELEPHONE (407) 694-4692 OR 1-800-222-4511. IN ORDER TO
ENSURE TIMELY DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD BE MADE BY A
DATE AT LEAST FIVE BUSINESS DAYS PRIOR TO THE EXPIRATION DATE.
<PAGE>
TABLE OF CONTENTS
Page
----
Available Information . . . . . . . . . . . . . . . . . . . . 3
Incorporation of Certain Documents by Reference . . . . . . . 4
Prospectus Summary . . . . . . . . . . . . . . . . . . . . . 6
Certain Considerations Relating to the Debentures
and the Exchange Offer . . . . . . . . . . . . . . . . . . . 14
The Company . . . . . . . . . . . . . . . . . . . . . . . . . 15
Selected Financial Information . . . . . . . . . . . . . . . 16
The Exchange Offer . . . . . . . . . . . . . . . . . . . . . 17
Listing and Trading of Debentures and $2.00 Preferred Stock . 23
Fees and Expenses; Transfer Taxes . . . . . . . . . . . . . . 23
Description of the Debentures . . . . . . . . . . . . . . . . 24
Description of Certain Terms of the $2.00 Preferred Stock . . 31
Certain United States Federal Income Tax Consequences . . . . 33
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . 35
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
<PAGE>
PROSPECTUS SUMMARY
The following summary does not purport to be complete and is
qualified in its entirety by the information contained elsewhere in
this Prospectus or by documents incorporated by reference in this
Prospectus. Capitalized terms used herein have the respective
meanings ascribed to them elsewhere in this Prospectus.
THE COMPANY
FPL was incorporated under the laws of Florida in 1925 and is
engaged in the generation, transmission, distribution and sale of
electric energy. The principal executive office of FPL is located at
700 Universe Boulevard, Juno Beach, Florida 33408, telephone (407)
694-4647, and the mailing address is P.O. Box 14000, Juno Beach,
Florida 33408-0420.
CERTAIN CONSIDERATIONS RELATING TO THE DEBENTURES AND THE EXCHANGE OFFER
Neither the Company nor its Board of Directors makes any
recommendation to Holders of $2.00 Preferred Stock as to whether to
tender all or any shares of $2.00 Preferred Stock in the Exchange
Offer. Holders of $2.00 Preferred Stock should carefully consider all
of the information contained in this Prospectus, including the
following:
. The nominal annual interest rate on the Debentures will be _____%,
and the nominal annual dividend rate on the $2.00 Preferred Stock
is 8%. See "- Comparison of Debentures and $2.00 Preferred Stock."
. The Debentures will rank senior to the $2.00 Preferred Stock as to
payment in respect thereof and as to the distribution of assets
upon liquidation (whether voluntary or involuntary). However, the
Debentures are unsecured obligations of FPL and will be, and the
shares of $2.00 Preferred Stock are, subordinate in right of
payment to all existing and future Senior Indebtedness of FPL. See
"Description of the Debentures - Subordination."
. Tendering Holders will not be obligated to pay brokerage
commissions or fees to the Dealer Managers, the Exchange Agent, the
Information Agent or FPL or, subject to the instructions in the
Letter of Transmittal with respect to special issuance or delivery
instructions, transfer taxes with respect to the exchange of $2.00
Preferred Stock pursuant to the Exchange Offer. See "Fees and
Expenses; Transfer Taxes".
. Participation in the Exchange Offer will be a taxable event. See
"Certain United States Federal Income Tax Consequences."
. While dividends on the $2.00 Preferred Stock are eligible for the
dividends received deduction for corporate Holders, interest on the
Debentures will not be eligible for the dividends received
deduction for corporate Holders. The dividends received deduction
is not available to individual, non-corporate Holders of either
Debentures or $2.00 Preferred Stock. See "- Comparison of
Debentures and $2.00 Preferred Stock."
. There has not been any trading market for the Debentures. While
FPL will apply to have the Debentures listed on the NYSE, there can
be no assurance that an active market for the Debentures will
develop or be sustained in the future. See "Listing and Trading
of Debentures and $2.00 Preferred Stock."
. The interest payment period on the Debentures may be extended under
certain circumstances by FPL in its sole discretion for up to 20
consecutive quarters during which no interest would be payable
thereon. Because the Debentures will be treated as having been
issued with OID, in the event an extension occurs, Holders of the
Debentures would continue to accrue income on the Debentures for
United States federal income tax purposes. See "Description of the
Debentures - Option to Extend Interest Payment Period"; and
"Certain United States Federal Income Tax Consequences."
THE EXCHANGE OFFER
Purpose of the Exchange Offer
The purpose of the Exchange Offer is to refinance the $2.00
Preferred Stock with the Debentures and to achieve certain tax
efficiencies for FPL while preserving FPL's flexibility with respect
to future financings. This refinancing will permit FPL to deduct
interest payable on the Debentures for United States federal income
tax purposes. Dividends payable on the $2.00 Preferred Stock are not
tax deductible by FPL. See "The Exchange Offer - Purpose of the
Exchange Offer."
Terms of the Exchange Offer
Upon the terms and subject to the conditions set forth herein and
in the Letter of Transmittal, FPL hereby offers to exchange its __%
Quarterly Income Debt Securities (Subordinated Deferrable Interest
Debentures, Due ___) for its 5,000,000 outstanding shares of $2.00
Preferred Stock. Exchanges will be made on the basis of $25 principal
amount of Debentures for each share of $2.00 Preferred Stock validly
tendered and accepted for exchange in the Exchange Offer. In
addition, as part of the Exchange Offer, Holders of $2.00 Preferred
Stock accepted for exchange will be entitled to receive the Payment in
Lieu of Accumulated Dividends, payable on the Closing Date. See "The
Exchange Offer - Terms of the Exchange Offer."
Expiration Date; Withdrawals
Upon the terms and conditions of the Exchange Offer, FPL intends to
accept for exchange any of the 5,000,000 shares of $2.00 Preferred
Stock validly tendered and not withdrawn prior to 5:00 p.m., New York
City time, on June ___, 1995, or if the Exchange Offer is extended by
FPL, in its sole discretion, the latest date and time to which the
Exchange Offer has been extended (the "Expiration Date"). Tenders of
$2.00 Preferred Stock pursuant to the Exchange Offer may be withdrawn
at any time prior to the Expiration Date and, unless accepted for
exchange by FPL, may be withdrawn at any time after 40 Business Days
(as defined herein) from the date of this Prospectus. A "Business
Day" shall mean any day other than a day on which banking institutions
in the City of New York are authorized or required by law to close.
See "The Exchange Offer - Withdrawal of Tenders"; " - Expiration Date;
Extensions; Amendments; Termination."
Extensions; Amendments; Termination
FPL expressly reserves the right, in its sole discretion, to (i)
extend, amend or modify the terms of the Exchange Offer in any manner
and (ii) withdraw or terminate the Exchange Offer and not accept for
exchange any $2.00 Preferred Stock, at any time prior to the
Expiration Date for any reason, including (without limitation) if
fewer than 1,250,000 shares of $2.00 Preferred Stock are tendered
(which condition may be waived by FPL). See "The Exchange Offer -
Expiration Date; Extensions; Amendments; Termination."
Procedures for Tendering
Each Holder of $2.00 Preferred Stock wishing to participate in the
Exchange Offer must (i) properly complete and sign the Letter of
Transmittal or a facsimile thereof (all references in this Prospectus
to the Letter of Transmittal shall be deemed to include a facsimile
thereof) in accordance with the instructions contained herein and in
the Letter of Transmittal, together with any required signature
guarantees, and deliver the same to The Chase Manhattan Bank (National
Association), as Exchange Agent, prior to the Expiration Date and
either (a) certificates for the $2.00 Preferred Stock must be received
by the Exchange Agent at such address or (b) book-entry transfer
described herein and a confirmation of such book-entry transfer must
be received by the Exchange Agent, in each case prior to the
Expiration Date or (ii) comply with the guaranteed delivery procedures
described herein. See "The Exchange Offer - Procedures for
Tendering."
LETTERS OF TRANSMITTAL, CERTIFICATES FOR $2.00 PREFERRED STOCK AND
ANY OTHER REQUIRED DOCUMENTS SHOULD BE SENT ONLY TO THE EXCHANGE
AGENT; NOT TO FPL, THE DEALER MANAGERS OR THE INFORMATION AGENT.
Special Procedure for Beneficial Owners
Any beneficial owner whose $2.00 Preferred Stock is registered in
the name of a broker, dealer, commercial bank, trust company or other
nominee and who wishes to tender such $2.00 Preferred Stock should
contact such registered Holder promptly and instruct such registered
Holder to tender on such beneficial owner's behalf. If, however, such
beneficial owner wishes to tender on its own behalf, such owner must,
prior to completing and executing a Letter of Transmittal and
delivering its $2.00 Preferred Stock, either make appropriate
arrangements to register ownership of the $2.00 Preferred Stock in
such owner's name or obtain a properly completed stock power from the
registered Holder. The transfer of registered ownership may take
considerable time and may not be able to be completed prior to the
Expiration Date. See "The Exchange Offer - Procedures for Tendering."
Guaranteed Delivery Procedures
If a Holder desires to accept the Exchange Offer and time will not
permit a Letter of Transmittal or certificates for $2.00 Preferred
Stock to reach the Exchange Agent before the Expiration Date or the
procedure for book-entry transfer cannot be completed on a timely
basis, a tender may be effected in accordance with the guaranteed
delivery procedures set forth in "The Exchange Offer - Procedures for
Tendering - Guaranteed Delivery."
Acceptance of Shares
FPL expressly reserves the right, in its sole discretion, to delay
acceptance for exchange of $2.00 Preferred Stock tendered under the
Exchange Offer and the delivery of the Debentures with respect to the
$2.00 Preferred Stock accepted for exchange (subject to Rules 13e-4
and 14e-1 under the Exchange Act, which require that FPL consummate
the Exchange Offer or return the $2.00 Preferred Stock deposited by or
on behalf of the Holders thereof promptly after the termination or
withdrawal of the Exchange Offer) at any time prior to the Expiration
Date for any reason including (without limitation) if fewer than
1,250,000 shares of the $2.00 Preferred Stock are tendered (which
condition may be waived by FPL). See "The Exchange Offer - Acceptance
of Shares; Delivery of Debentures" and " - Expiration Date;
Extensions; Amendments; Termination."
All shares of $2.00 Preferred Stock not accepted pursuant to the
Exchange Offer will be returned to the tendering Holders at FPL's
expense as promptly as practicable following the Expiration Date.
All shares of $2.00 Preferred Stock accepted pursuant to the
Exchange Offer will be retired and canceled.
Delivery of Debentures
Subject to the terms and conditions of the Exchange Offer, the
delivery of the Debentures will occur as promptly as practicable on a
single settlement date (the "Closing Date") following the Expiration
Date. See "The Exchange Offer - Acceptance of Shares; Delivery of
Debentures" and " - Expiration Date; Extensions; Amendments;
Termination."
Description of Debentures
The Debentures will be unsecured subordinated debt securities
issued under an Indenture dated as of June ___, 1995, between FPL and
The Chase Manhattan Bank (National Association), as Trustee,
hereinafter referred to as the "Indenture." The Indenture permits the
issuance of unsecured subordinated debt securities in series, the
first of which series is the Debentures. "Debt Securities", as used
herein, shall mean any series of such unsecured subordinated debt
securities issued from time to time and outstanding under the
Indenture, including the Debentures as the first series thereof. The
Debentures will be subordinate to all Senior Indebtedness of FPL but
are senior to all Capital Stock of FPL. "Capital Stock", as used
herein, shall mean any shares of preferred stock (regardless of par
value), preference stock or common stock of FPL from time to time
outstanding.
The Debentures are to mature ____________________ and will bear
interest at the rate per annum shown in the title thereof payable in
equal quarterly installments, in arrears, on the Interest Payment
Dates, commencing September 30, 1995, to the persons in whose names
the Debentures are registered at the close of business on the relevant
Regular Record Dates. Interest will originally accrue from, and
including, the Closing Date to, and including, the first Interest
Payment Date, and thereafter will accrue from, and excluding, the last
Interest Payment Date through which interest has been paid. No
interest will accrue on the Debentures with respect to the day on
which the Debentures mature. In the event that any date on which
interest is payable on the Debentures is not a Business Day, then
payment of the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date.
No Sinking Fund will be established for the benefit of the
Debentures.
The Debentures will be redeemable on or prior to February 28, 1997
at the option of FPL, in whole or in part, upon not less than 30 nor
more 60 days' notice, at 108% of the principal amount redeemed plus
accrued and unpaid interest, if any, to the redemption date, and
thereafter at 100% of the principal amount redeemed plus accrued and
unpaid interest, if any, to the redemption date; provided, however,
that none of the Debentures shall be redeemed prior to March 1, 1997,
if such redemption is for the purpose, or in anticipation, of
refunding such Debentures through the use, directly or indirectly, of
funds borrowed by FPL at an effective interest cost to FPL (calculated
in accordance with acceptable financial practice) of less than 8.2102%
per annum.
FPL shall have the right at any time and from time to time during
the term of the Debentures, so long as an Event of Default has not
occurred and is not continuing, to elect an Extension Period, on the
last Business Day of which Extension Period, FPL shall pay all
interest then accrued and unpaid (together with interest thereon at
the rate specified for the Debentures to the extent permitted by
applicable law); provided, that, during any such Extension Period, FPL
shall not declare or pay any dividend on, or redeem, purchase, acquire
or make a distribution or liquidation payment with respect to, any of
its Capital Stock, except that FPL may make mandatory sinking fund
payments with respect to its 6.84% Preferred Stock, Series Q and
8.625% Preferred Stock, Series R. FPL may prepay at any time all or
any portion of the interest accrued during an Extension Period. Based
upon FPL's current financial condition and, in light of the
restriction on payment of dividends during an Extension Period, FPL
believes that an extension of an interest payment period on the
Debentures is currently unlikely and has no current intention to
extend such an interest payment period. Prior to the termination of
any such Extension Period, FPL may further extend the interest payment
period, provided that such Extension Period, together with all such
previous and further extensions thereof, may not exceed 20 consecutive
quarterly interest payment periods or extend beyond the maturity of
the Debentures. Upon the termination of any Extension Period and the
payment of all amounts then due, FPL may elect another Extension
Period. FPL shall give the Holders of the Debentures notice of its
election of an Extension Period prior to the earlier of (i) two
Business Days prior to the Regular Record Date for the next Interest
Payment Date which would occur but for such election or (ii) the date
FPL is required to give notice to the NYSE or other applicable self-
regulatory organization of the Regular Record Date or Interest Payment
Date.
The provisions described in this Prospectus under the caption
"Description of the Debentures - Defeasance" are applicable to the
Debentures.
Untendered Shares
Holders of $2.00 Preferred Stock who do not tender their $2.00
Preferred Stock in the Exchange Offer or whose $2.00 Preferred Stock
is not accepted for exchange will continue to hold such $2.00
Preferred Stock and will be entitled to all the rights and
preferences, and will be subject to all of the limitations, applicable
thereto. See "Listing and Trading of Debentures and $2.00 Preferred
Stock."
Exchange Agent and Information Agent
The Chase Manhattan Bank (National Association) has been appointed
as Exchange Agent in connection with the Exchange Offer. Questions
and requests for assistance, requests for additional copies of this
Prospectus or of the Letter of Transmittal and requests for Notices of
Guaranteed Delivery should be directed to Georgeson & Company Inc.,
which has been retained by FPL to act as Information Agent for the
Exchange Offer. The addresses and telephone numbers of the Exchange
Agent and the Information Agent are set forth in "The Exchange Offer
Exchange Agent and Information Agent" and on the outside back cover of
this Prospectus.
Dealer Managers
__________ and __________ have been retained as Dealer Managers in
connection with the Exchange Offer. Questions with respect to the
Exchange Offer may be directed to __________ at __________ and to
__________ at __________.
<PAGE>
COMPARISON OF DEBENTURES AND $2.00 PREFERRED STOCK
The following is a brief summary of certain terms of the Debentures
and $2.00 Preferred Stock. For a more complete description of the
Debentures, see "Description of the Debentures"; and for additional
information about the $2.00 Preferred Stock, see "Description of
Certain Terms of the $2.00 Preferred Stock."
Debentures $2.00 Preferred Stock
---------- ---------------------
Issuer . . . . . FPL FPL
Interest/Dividend
Rate . . . . . . . ____% per annum $2.00 per annum
interest payable in equal dividend (nominal)
quarterly installments, annual dividend
in arrears, on each rate of 8%)
Interest Payment Date payable on the
and accruing originally first calendar day
from, and including, the of March, June,
date of issuance thereof September and
to, and including, the December of each
first Interest Payment year, out of funds
Date, and thereafter legally available
from, and excluding, the therefor, when, as
last Interest Payment and if declared by
Date through which FPL's Board of
interest has been paid, Directors.
subject to FPL's right to Dividends are
elect, from time to time, cumulative.
Extension Periods, each Accumulated unpaid
of which may not exceed dividends do not
20 consecutive quarterly bear interest.
interest payment periods.
During any Extension
Period (to the extent
permitted by law), interest
would continue to accrue,
compounded quarterly and
would be due and payable
on the last Business Day
of the Extension Period.
Optional
Redemption . . . . The Debentures will be Redeemable at the
redeemable on or prior to option of FPL, in
February 28, 1997 at the whole or in part
option of FPL, in whole at anytime, on not
or in part, upon not less than 30 days'
less than 30 nor more notice, at $27.00
than 60 days' notice, at per share on or
108% of the principal before February
amount redeemed plus 28, 1997, and
accrued and unpaid thereafter at
interest, if any, to the $25.00 per share,
redemption date; and plus, in each
thereafter at 100% of case, accrued and
the principal amount unpaid dividends,
redeemed plus accrued if any, to the
and unpaid interest, redemption date;
if any, to the except that prior
redemption date, to March 1, 1997,
provided, however, that the $2.00
none of the Debentures Preferred Stock
shall be redeemed prior shall not be
to March 1, 1997, if redeemable if such
such redemption is for redemption is for
the purpose, or in the purpose, or in
anticipation, of anticipation, of
refunding such refunding such
Debentures through the $2.00 Preferred
use, directly or Stock through the
indirectly, of funds use, directly or
borrowed by FPL at an indirectly, of
effective interest cost funds borrowed by
to FPL (calculated in FPL at an
accordance with effective interest
acceptable financial cost to FPL
practice) of less than (calculated in
8.2102% per annum. accordance with
acceptable
financial
practice) of less
than 8.2102% per
annum.
Maturity/
Mandatory
Redemption . . . The Debentures mature No maturity date
on _________ and are and not subject to
not subject to mandatory mandatory
redemption prior to that redemption.
date.
Sinking Fund . . . No sinking fund will be Not subject to
established for the sinking fund
benefit of the requirements.
Debentures.
Subordination . . . Subordinated to all Subordinated to
existing and future claims of
Senior Indebtedness of creditors of FPL,
FPL and senior to including Holders
Capital Stock of FPL, of FPL's
including the $2.00 outstanding Senior
Preferred Stock. As Indebtedness and
of March 31, 1995, other Debt
approximately $3.8 Securities and the
billion of such Senior Debentures, but
Indebtedness was senior to the
outstanding. common stock of
FPL.
Listing . . . Application will be made The $2.00
to list the Debentures Preferred Stock is
on the NYSE. listed on the
NYSE. However,
see "Listing and
Trading of
Debentures and
$2.00 Preferred
Stock."
Dividends
Received
Deduction . . . Interest is not eligible Dividends are
for the dividends eligible for the
received deduction for dividends received
any Holders. deduction for
corporate Holders.
The dividends
received deduction
is not available
to individual,
non-corporate
Holders.
Voting Rights/
Enforcement . . . Subject to FPL's right to If any four full
extend payment as quarterly
described under dividends on any
"Interest/Dividend Rate" class of FPL's
Holders have the right preferred stocks,
to receive interest and including the
principal payments as $2.00 Preferred
and when due, but do not Stock, are in
have any voting rights. default, the
Holders of all
preferred stock,
including the
Holders of the
$2.00 Preferred
Stock, become
entitled, as one
class, to elect a
majority of the
Board of
Directors. When
entitled to vote,
each Holder of
$2.00 Preferred
Stock shall have
one quarter (1/4)
of one vote for
each share held of
record by such
Holder.
<PAGE>
CERTAIN CONSIDERATIONS RELATING TO THE DEBENTURES AND THE EXCHANGE OFFER
Neither the Company nor its Board of Directors makes
any recommendation to Holders of $2.00 Preferred Stock as to whether to
tender all or any shares of $2.00 Preferred Stock in the Exchange Offer.
Holders of $2.00 Preferred Stock should carefully consider all of the
information contained in this Prospectus, including the following:
Certain United States Federal Income Tax Considerations
The exchange of Debentures for $2.00 Preferred Stock
pursuant to the Exchange Offer will be a taxable transaction. Gain or loss
generally will be recognized in an amount equal to the difference between
the fair market value on the Closing Date of the Debentures received in the
exchange plus the Payment in Lieu of Accumulated Dividends and the
exchanging Holder's tax basis in the shares of $2.00 Preferred Stock
surrendered. See "Certain United States Federal Income Tax Consequences-
Exchange of Debentures for $2.00 Preferred Stock."
Holders of Debentures will be required to include in
their gross income interest from the Debentures as it accrues, rather than
when it is paid, regardless of the Holders' regular method of accounting.
Such interest will generally be equal to the amount of stated interest
payable on the Debentures each year. Should an Extension Period occur with
respect to the Debentures, Holders will be required to include in gross
income interest accruing on the Debentures for United States federal income
tax purposes in advance of the receipt of cash. See "Certain United States
Federal Income Tax Consequences - Original Issue Discount, Market Discount
and Acquisition Premium.
Unsecured Subordinated Obligations
The Debentures will rank senior to the $2.00 Preferred
Stock as to payment in respect thereof and as to the distribution of assets
upon liquidation (whether voluntary or involuntary). However, the
Debentures are unsecured obligations of FPL and will be, and the shares of
$2.00 Preferred Stock are, subordinate in right of payment to all existing
and future Senior Indebtedness of FPL. As of March 31, 1995, Senior
Indebtedness of FPL aggregated approximately $3.8 billion. The terms of
the Debentures do not limit FPL's ability to incur additional indebtedness,
including indebtedness that ranks senior to or pari passu with the
Debentures. A default with respect to, or the acceleration of, any other
indebtedness of FPL will not constitute an "Event of Default" with respect
to the Debentures. See "Description of the Debentures Subordination" and
"Comparison of Debentures and $2.00 Preferred Stock."
Option to Extend Interest Payment Period
FPL has the right under the Indenture to extend the
interest payment period from time to time on the Debentures, so long as an
event of default has not occurred and is not continuing, for an Extension
Period not exceeding 20 consecutive quarterly interest payment periods,
during which no interest shall be due and payable until the last Business
Day of such Extension Period. If FPL exercises the right to extend an
interest payment period, FPL may not during such Extension Period declare
or pay dividends on, or purchase, acquire or make a distribution or
liquidation payment with respect to, any of its Capital Stock; provided
that it may make mandatory sinking fund payments on its 6.84% Preferred
Stock, Series Q and 8.625% Preferred Stock, Series R. Based upon FPL's
current financial condition and, in light of the restriction on payment of
dividends during an Extension Period, FPL believes that an extension of an
interest payment period on the Debentures is currently unlikely and has no
current intention to extend such an interest payment period.
Prior to the expiration of any Extension Period, FPL
may further extend such Extension Period, provided that such Extension
Period together with all such previous and further extensions thereof may
not exceed 20 consecutive quarterly interest payment periods. Upon the
expiration of any Extension Period and the payment of all amounts then due,
FPL may select a new Extension Period, subject to the above requirements.
Consequently, there could be multiple Extension Periods of varying lengths
(up to _____ Extension Periods of 20 consecutive quarterly interest payment
periods each or more numerous shorter Extension Periods) throughout the
term of the Debentures. See "Description of the Debentures - Option to
Extend Interest Payment Period."
In the event that FPL determines to extend an interest
payment period, or in the event that FPL thereafter extends an Extension
Period, the market price of the Debentures may be adversely affected.
Because FPL has the right to extend the interest
payment period, the Debentures will be treated as having been issued with
OID for United States federal income tax purposes. As a result, during an
Extension Period, Holders of Debentures that are subject to United States
federal income tax would be required to continue to include in gross income
interest accruing on the Debentures for United States federal income tax
purposes in advance of the receipt of cash. See "Certain United States
Federal Income Tax Consequences - Original Issue Discount, Market Discount
and Acquisition Premium."
Listing and Trading of Debentures and $2.00 Preferred Stock
The Debentures constitute a new issue of securities
with no established trading market. While FPL will apply to list the
Debentures on the NYSE, there can be no assurance that an active market for
the Debentures will develop or be sustained in the future. Although the
Dealer Managers have indicated to FPL that they intend to make a market in
the Debentures as permitted by applicable laws and regulations prior to the
commencement of trading on the NYSE, they are not obligated to do so and
may discontinue any such market-making at any time without notice.
Accordingly, no assurance can be given as to the liquidity of, or trading
markets for, the Debentures.
To the extent that a certain number of shares of $2.00
Preferred Stock are tendered and accepted in the Exchange Offer and/or the
number of Holders of $2.00 Preferred Stock is reduced to below certain
levels, FPL would be required to delist the $2.00 Preferred Stock from the
NYSE pursuant to the rules and regulations of the NYSE, and the trading
market for shares of $2.00 Preferred Stock which are not tendered and
accepted could be adversely affected. FPL does not believe that the
Exchange Offer has a reasonable likelihood of causing the $2.00 Preferred
Stock to be delisted from the NYSE.
Fees and Expenses; Transfer Taxes
The expense of soliciting tenders of shares of $2.00
Preferred Stock will be borne by the Company. Subject to the receipt of a
properly completed and duly executed Notice of Solicited Tenders as
described herein, the Company will pay to any Soliciting Dealer (as such
term is defined in the next sentence) a solicitation fee of $_____ per $25
principal amount of Debentures issued in respect of shares of $2.00
Preferred Stock solicited by such Soliciting Dealer and accepted in the
Exchange Offer. "Soliciting Dealer" includes (i) any broker or dealer in
securities, including the Dealer Managers in their capacity as brokers or
dealers, which is a member of any national securities exchange or of the
National Association of Securities Dealers, Inc. (the "NASD"), (ii) any
foreign broker or dealer not eligible for membership in the NASD which
agrees to conform to the NASD's Rules of Fair Practice in soliciting
tenders outside the United States to the same extent as though it were an
NASD member or (iii) any bank or trust company. Subject to the
instructions in the Letter of Transmittal, the Company will pay all
transfer taxes, if any, applicable to the exchange of shares of $2.00
Preferred Stock pursuant to the Exchange Offer. See "Fees and Expenses;
Transfer Taxes."
THE COMPANY
FPL was incorporated under the laws of Florida in 1925
and is engaged in the generation, transmission, distribution and sale of
electric energy. The principal executive office of FPL is located at
700 Universe Boulevard, Juno Beach, Florida 33408, telephone
(407) 694-4647, and the mailing address is P.O. Box 14000, Juno Beach,
Florida 33408-0420. FPL supplies electric service throughout most of the
east and lower west coasts of Florida. This service territory contains
about 27,650 square miles with a population of approximately 6.5 million.
During 1994, FPL served approximately 3.4 million customer accounts. All
of the shares of common stock of FPL are owned by FPL Group, Inc.
<PAGE>
SELECTED FINANCIAL INFORMATION
(Thousands, except for Ratios)
Years Ended December 31,
------------------------------------------------------
1994 1993 1992 1991 1990
-------- -------- -------- -------- -----
Income
Statement
Data:
Operating
Revenues. $5,342,656 $5,224,299 $5,100,463 $5,158,766 $4,987,690
Net Income
Available
to FPL
Group,
Inc. . $ 528,515 $ 425,297(1) $ 470,899 $ 376,261(2) $ 381,204
Three Months Ended March 31,(3)
(Unaudited)
-------------------------------
1995 1994
------------ ------------
Income Statement Data:
Operating Revenues. . . . . $1,156,269 $1,155,789
Net Income Available to
FPL Group, Inc. . . . . $ 107,289 $ 98,625
As of March 31, 1995 As of December 31, 1994
(Unaudited
---------------------- ------------------------
Actual Ratio Actual Ratio
----------- ---------- ------- ----------
Capitalization:
Long-Term
Debt(4). . $3,296,307 41.2% $3,581,157 43.1%
Preferred
Stock(5) . 505,250 6.3% 545,250 6.6%
Common
Shareholder's
Equity. . 4,197,244 52.5% 4,185,586 50.3%
---------- ------ ---------- ------
Total
Capital-
ization . $7,998,801 100.0% $8,311,993 100.0%
Years Ended December 31,
--------------------------------------------
1994 1993 1992 1991 1990
---- ---- ---- ---- ----
Ratio of
Earnings
to Fixed
Charges . . . . 3.86x 3.03x(1) 3.30x 2.84x(2) 2.94x
Ratio of
Earnings to
Combined Fixed
Charges and
Preferred
Stock Dividend
Requirements. . 3.22x 2.56x(1) 2.76x 2.40x(2) 2.45x
Three Months Ended March 31,(3)
(Unaudited)
--------------------------------
1995 1994
--------------- ------------
Ratio of Earnings to Fixed
Charges . . . . . . . . . . . 3.42x 3.16x
Ratio of Earnings to Combined
Fixed Charges and Preferred
Stock Dividend Requirements. . 2.74x 2.64x
--------------------------
(1) Includes the effect of an $85 million after-tax cost
reduction program charge recognized in September 1993.
(2) Includes the effect of a $56 million after-tax
restructuring charge recognized in June 1991.
(3) The results of operations for an interim period may not
give a true indication of results for the year.
(4) Excludes short-term debt and current maturities.
(5) Excludes current maturities.
<PAGE>
THE EXCHANGE OFFER
Purpose of the Exchange Offer
The purpose of the Exchange Offer is to refinance the $2.00 Preferred
Stock with the Debentures and to achieve certain tax efficiencies for FPL
while preserving FPL's flexibility with respect to future financings. This
refinancing will permit FPL to deduct interest payable on the Debentures
for United States federal income tax purposes. Dividends payable on the
$2.00 Preferred Stock are not tax deductible to FPL.
General
Participation in the Exchange Offer is voluntary, and Holders of $2.00
Preferred Stock should carefully consider whether to accept. Neither the
Company nor its Board of Directors makes any recommendation to Holders of
$2.00 Preferred Stock as to whether to tender all or any shares of $2.00
Preferred Stock in the Exchange Offer. Holders of $2.00 Preferred Stock
are urged to consult their financial and tax advisors in making their
decisions on what action to take in light of their own particular
circumstances.
Participation in the Exchange Offer is open to officers, directors and
affiliates of FPL who own shares of $2.00 Preferred Stock.
Unless the context requires otherwise, the term "Holder" (a) with respect
to the $2.00 Preferred Stock, means (i) any person in whose name any shares
of $2.00 Preferred Stock are registered on the books of The First National
Bank of Boston or (ii) any other person who has obtained a properly
completed stock power from the registered Holder or (iii) any person whose
beneficially owned shares of $2.00 Preferred Stock are held of record by a
Book-Entry Transfer Facility (as defined herein) who desires to deliver
such $2.00 Preferred Stock by book-entry transfer at a Book-Entry Transfer
Facility, and (b) with respect to any other security, means the person in
whose name such security is registered on the books of the security
registrar with respect thereto.
Terms of the Exchange Offer
Upon the terms and subject to the conditions set forth herein and in the
Letter of Transmittal, FPL will exchange Debentures for its 5,000,000
outstanding shares of $2.00 Preferred Stock. The Exchange Offer will be
effected on a basis of $25 principal amount of Debentures for each share of
$2.00 Preferred Stock validly tendered and accepted for exchange. See "
Procedures for Tendering." In addition, as part of its Exchange Offer,
Holders of $2.00 Preferred Stock accepted for exchange will be entitled to
receive the Payment in Lieu of Accumulated Dividends. Under the terms of
the Exchange Offer, FPL intends to accept any of the 5,000,000 shares of
$2.00 Preferred Stock validly tendered and not withdrawn prior to the
Expiration Date and, unless the Exchange Offer has been withdrawn or
terminated, FPL will deliver Debentures in exchange therefor on the Closing
Date to the tendering Holders of $2.00 Preferred Stock, subject to the
right of FPL to extend, terminate or amend the Exchange Offer. FPL
expressly reserves the right, in its sole discretion, to delay acceptance
for exchange of $2.00 Preferred Stock tendered under the Exchange Offer and
the delivery of the Debentures with respect to the $2.00 Preferred Stock
accepted for exchange (subject to Rules 13e-4 and 14e-1 under the Exchange
Act, which require that FPL consummate the Exchange Offer or return the
$2.00 Preferred Stock deposited by or on behalf of the Holders thereof
promptly after the termination or withdrawal of the Exchange Offer) at any
time prior to the Expiration Date for any reason including (without
limitation) if fewer than 1,250,000 shares of the $2.00 Preferred Stock are
tendered (which condition may be waived by FPL).
In all cases, except to the extent waived by FPL, delivery of Debentures
issued with respect to the $2.00 Preferred Stock accepted for exchange
pursuant to the Exchange Offer will be made only after timely receipt by
the Exchange Agent of $2.00 Preferred Stock (or confirmation of book-entry
transfer thereof), a properly completed and duly executed Letter of
Transmittal, and any other documents required thereby.
As of May 17, 1995, there were 5,000,000 shares of $2.00 Preferred Stock
outstanding. This Prospectus, together with the Letter of Transmittal, is
being sent to all registered Holders as of ______________, 1995.
FPL shall be deemed to have accepted validly tendered $2.00 Preferred
Stock (or $2.00 Preferred Stock which FPL has, in its sole discretion,
determined to be defectively tendered, with respect to which FPL has waived
such defect) when, as and if FPL has given oral or written notice thereof
to the Exchange Agent. The Exchange Agent will act as agent for the
tendering Holders for the purpose of receiving the Debentures from FPL and
remitting such Debentures to tendering Holders who are participating in the
Exchange Offer. Upon the terms and subject to the conditions of the
Exchange Offer, delivery of Debentures will be made on the Closing Date.
If any tendered shares of $2.00 Preferred Stock are not accepted for
exchange because of an invalid tender, the occurrence of certain other
events set forth herein or otherwise, unless otherwise requested by the
Holder under "Special Delivery Instructions" in the Letter of Transmittal,
such shares of $2.00 Preferred Stock will be returned, without expense, to
the tendering Holder thereof (or in the case of shares of $2.00 Preferred
Stock tendered by book-entry transfer into the Exchange Agent's account at
DTC, such shares of $2.00 Preferred Stock will be credited to an account
maintained at DTC designated by the participant therein who so delivered
such $2.00 Preferred Stock), as promptly as practicable after the
Expiration Date or the withdrawal or termination of the Expiration Date or
the withdrawal or termination of the Exchange Offer.
Holders of $2.00 Preferred Stock will not have any appraisal or
dissenters' rights under the Florida Business Corporation Act in connection
with the Exchange Offer. FPL intends to conduct the Exchange Offer in
accordance with the applicable requirements of the Exchange Act and the
rules and regulations of the Commission thereunder.
Holders who tender $2.00 Preferred Stock in the Exchange Offer and who
participate in the Exchange Offer will not be required to pay brokerage
commissions or fees or, subject to the instructions in the Letter of
Transmittal, transfer taxes with respect to the exchange of $2.00 Preferred
Stock pursuant to the Exchange Offer. See "Fees and Expenses; Transfer
Taxes."
Expiration Date; Extensions; Amendments; Termination
The Exchange Offer will expire on the Expiration Date. FPL reserves the
right to extend the Exchange Offer in its sole discretion at any time and
from time to time by giving oral or written notice to the Exchange Agent
and by timely public announcement communicated, unless another means is
required by applicable law or regulation, by making a release to the Dow
Jones News Service. During any extension of the Exchange Offer, all $2.00
Preferred Stock previously tendered pursuant to the Exchange Offer and not
withdrawn will remain subject to the Exchange Offer.
FPL expressly reserves the right to (i) extend, amend or modify the terms
of the Exchange Offer in any manner and (ii) withdraw or terminate the
Exchange Offer and not accept for exchange any $2.00 Preferred Stock, at
any time prior to the Expiration Date for any reason, including (without
limitation) if fewer than 1,250,000 shares of $2.00 Preferred Stock are
tendered in the Exchange Offer (which condition may be waived by FPL). If
FPL makes a material change in the terms of the Exchange Offer or if it
waives a material condition of the Exchange Offer, FPL will extend the
Exchange Offer. The minimum period for which the Exchange Offer will be
extended following a material change or waiver will depend upon the facts
and circumstances, including the relative materiality of the change or
waiver. Any withdrawal or termination of the Exchange Offer will be
followed as promptly as practicable by public announcement thereof through
the Dow Jones News Service. If FPL withdraws or terminates the Exchange
Offer, it will give immediate notice to the Exchange Agent, and all $2.00
Preferred Stock theretofore tendered pursuant to the Exchange Offer will be
returned promptly to the tendering Holders thereof. See " - Withdrawal of
Tenders."
Procedures for Tendering
The tender of $2.00 Preferred Stock by a Holder thereof pursuant to one
of the procedures set forth below will constitute an agreement between such
Holder and FPL in accordance with the terms and subject to the conditions
set forth herein and in the Letter of Transmittal.
Each Holder of the $2.00 Preferred Stock wishing to participate in the
Exchange Offer must (i) properly complete and sign the Letter of
Transmittal in accordance with the instructions contained herein and in the
Letter of Transmittal, together with any required signature guarantees, and
deliver the same to the Exchange Agent, at one of its addresses set forth
in " Exchange Agent and Information Agent" prior to the Expiration Date
and either (a) certificates for the $2.00 Preferred Stock must be received
by the Exchange Agent at such address or (b) such $2.00 Preferred Stock
must be transferred pursuant to the procedures for book-entry transfer
described below and a confirmation of such book-entry transfer must be
received by the Exchange Agent, in each case prior to the Expiration Date
or (ii) comply with the guaranteed delivery procedures described below.
In order to participate in the Exchange Offer, Holders of $2.00 Preferred
Stock must submit a Letter of Transmittal and comply with the other
procedures for tendering in accordance with the instructions contained
herein and in the Letter of Transmittal prior to the Expiration Date.
Except as otherwise noted herein, after the Expiration Date, tendering
Holders of $2.00 Preferred Stock may not withdraw tendered shares from the
Exchange Offer.
LETTERS OF TRANSMITTAL, CERTIFICATES FOR $2.00 PREFERRED STOCK AND ANY
OTHER REQUIRED DOCUMENTS SHOULD BE SENT ONLY TO THE EXCHANGE AGENT; NOT TO
FPL, THE DEALER MANAGERS OR THE INFORMATION AGENT.
Signature Guarantees. If tendered $2.00 Preferred Stock is registered in
the name of the signer of the Letter of Transmittal and beneficial
ownership of the Debentures to be issued in exchange therefor is to be
issued (and any untendered $2.00 Preferred Stock is to be reissued) in the
name of the registered Holder (which term, for the purposes described
herein, shall include any participant in DTC whose name appears on a
security listing as the owner of $2.00 Preferred Stock), the signature of
such signer need not be guaranteed. If the tendered $2.00 Preferred Stock
is registered in the name of someone other than the signer of the Letter of
Transmittal, such tendered $2.00 Preferred Stock must be endorsed or
accompanied by written instruments of transfer in a form satisfactory to
FPL and duly executed by the registered Holder, and the signature on the
endorsement or instrument of transfer must be guaranteed by a financial
institution (including most banks, savings and loans associations and
brokerage houses) that is a participant in the Security Transfer Agents
Medallion Program or the Stock Exchange Medallion Program (any of the
foregoing hereinafter referred to as an "Eligible Institution"). If the
Debentures and/or the $2.00 Preferred Stock not exchanged are to be
delivered to an address other than that of the registered Holder appearing
on the register for the $2.00 Preferred Stock, the signature in the Letter
of Transmittal must be guaranteed by an Eligible Institution.
Book-Entry Transfer. As used herein, a "Book-Entry Transfer Facility"
shall mean any of The Depository Trust Company ("DTC"), Midwest Securities
Trust Company or Philadelphia Depository Trust Company. FPL understands
that the Exchange Agent will make a request promptly after the date of this
Prospectus to establish an account with respect to the $2.00 Preferred
Stock at each Book-Entry Transfer Facility for the purpose of facilitating
the Exchange Offer, and subject to the establishment thereof, any financial
institution that is a participant in a Book-Entry Transfer Facility's
system may make book-entry delivery of $2.00 Preferred Stock by causing
such Book-Entry Transfer Facility to transfer such $2.00 Preferred Stock in
accordance with such Book-Entry Transfer Facility's Automated Tender Offer
Program or other similar procedures ("ATOP") for such book-entry transfers.
However, the exchange for the $2.00 Preferred Stock so tendered will only
be made after timely confirmation (a "Book-Entry Confirmation") of such
Book-Entry Transfer of $2.00 Preferred Stock into the Exchange Agent's
account, and timely receipt by the Exchange Agent of an Agent's Message (as
such term is defined in the next sentence) the Letter of Transmittal and
any other documents required by the Letter of Transmittal. The term
"Agent's Message" means a message, transmitted by a Book-Entry Transfer
Facility and received by the Exchange Agent and forming a part of a Book-
Entry Confirmation, which states that such Book-Entry Transfer Facility has
received an express acknowledgment from a participant tendering $2.00
Preferred Stock that is the subject of such Book-Entry Confirmation that
such participant has received and agrees to be bound by the terms of the
Letter of Transmittal, and that FPL may enforce such agreement against such
participant.
Guaranteed Delivery. If a Holder desires to participate in the Exchange
Offer and time will not permit a Letter of Transmittal or certificates for
$2.00 Preferred Stock to reach the Exchange Agent before the Expiration
Date or the procedure for book-entry transfer cannot be completed on a
timely basis, a tender may be effected if the Exchange Agent has received
at its office prior to the Expiration Date, a letter, telegram or facsimile
transmission from an Eligible Institution setting forth the name and
address of the tendering Holder, the name(s) in which the $2.00 Preferred
Stock is registered and, if the $2.00 Preferred Stock is held in
certificated form, the certificate numbers of the $2.00 Preferred Stock to
be tendered, and stating that the tender is being made thereby and
guaranteeing that within five NYSE trading days after the date of execution
of such letter, telegram or facsimile transmission by the Eligible
Institution, the $2.00 Preferred Stock in proper form for transfer together
with a properly completed and duly executed Letter of Transmittal (and any
other required documents), or a confirmation of book-entry transfer of such
$2.00 Preferred Stock into the Exchange Agent's account at a Book-Entry
Transfer Facility, will be delivered by such Eligible Institution. Unless
the $2.00 Preferred Stock being tendered by the above-described method is
deposited with the Exchange Agent within the time period set forth above
(accompanied or preceded by a properly completed Letter of Transmittal and
any other required documents) or a confirmation of book-entry transfer of
such $2.00 Preferred Stock into the Exchange Agent's account at a Book-
Entry Transfer Facility in accordance with such Book-Entry Transfer
Facility's ATOP procedures is received, FPL may, at its option, reject the
tender. In addition to the copy being transmitted herewith, copies of a
Notice of Guaranteed Delivery which may be used by Eligible Institutions
for the purposes described in this paragraph are available from the
Exchange Agent and the Information Agent.
Miscellaneous. All questions as to the validity, form, eligibility
(including time of receipt) and acceptance for exchange of any tender of
$2.00 Preferred Stock will be determined by FPL, in its sole discretion,
and which determination will be final and binding. FPL reserves the
absolute right to reject any or all tenders that it determines are not in
proper form or the acceptance for exchange of which may, in the opinion of
FPL's counsel, be unlawful. FPL also reserves the absolute right to waive
any defect or irregularity in the tender of any $2.00 Preferred Stock, and
FPL's interpretation of the terms and conditions of the Exchange Offer
(including the instructions in the Letter of Transmittal) will be final and
binding. None of FPL, the Exchange Agent, the Dealer Managers, the
Information Agent or any other person will be under any duty to give
notification of any defects or irregularities in tenders or incur any
liability for failure to give any such notification.
Tenders of $2.00 Preferred Stock involving any irregularities will not be
deemed to have been made until such irregularities have been cured or
waived. $2.00 Preferred Stock received by the Exchange Agent that is not
validly tendered and as to which the irregularities have not been cured or
waived will be returned by the Exchange Agent to the tendering Holder (or
in the case of $2.00 Preferred Stock tendered by book-entry transfer into
the Exchange Agent's account at a Book-Entry Transfer Facility, such $2.00
Preferred Stock will be credited to an account maintained at such Book-
Entry Transfer Facility designated by the participant therein who so
delivered such $2.00 Preferred Stock), unless otherwise requested by the
Holder in the Letter of Transmittal, as promptly as practicable after the
Expiration Date or the withdrawal or termination of the Exchange Offer.
Letter of Transmittal
The Letter of Transmittal contains, among other things, the following
terms and conditions, which are part of the Exchange Offer:
The party tendering $2.00 Preferred Stock for exchange (the "Transferor")
exchanges, assigns and transfers the $2.00 Preferred Stock to FPL and
irrevocably constitutes and appoints the Exchange Agent as the Transferor's
agent and attorney-in-fact to cause the $2.00 Preferred Stock to be
assigned, transferred and exchanged. The Transferor represents and
warrants that it has full power and authority to tender, exchange, assign
and transfer the $2.00 Preferred Stock and to acquire beneficial ownership
of Debentures issuable upon the exchange of such tendered $2.00 Preferred
Stock, and that, when such Transferor's shares of $2.00 Preferred Stock are
accepted for exchange, FPL will acquire good and unencumbered title to such
shares of tendered $2.00 Preferred Stock free and clear of all liens,
restrictions, charges and encumbrances and not subject to any adverse
claim. The Transferor also represents that it will, upon request, execute
and deliver any additional documents deemed by FPL to be necessary or
desirable to complete the exchange, assignment and transfer of the tendered
$2.00 Preferred Stock or transfer ownership of such $2.00 Preferred Stock
on the account books maintained by a Book-Entry Transfer Facility. All
authority conferred by the Transferor will survive the death, bankruptcy or
incapacity of the Transferor and every obligation of the Transferor shall
be binding upon the heirs, legal representative, successors, assigns,
executors and administrators of such Transferor.
Withdrawal of Tenders
Tenders of $2.00 Preferred Stock pursuant to the Exchange Offer may be
withdrawn at any time prior to the Expiration Date and, unless accepted for
exchange by FPL, may be withdrawn at any time after 40 Business Days from
the date of this Prospectus.
To be effective, a written notice of withdrawal delivered by mail, hand
delivery or facsimile transmission must be timely received by the Exchange
Agent at the address set forth below under " - Exchange Agent and
Information Agent." The method of notification is at the risk and election
of the Holder. Any such notice of withdrawal must specify (i) the Holder
named in the Letter of Transmittal as having tendered $2.00 Preferred Stock
to be withdrawn, (ii) if the $2.00 Preferred Stock is held in certificated
form, the certificate numbers of the $2.00 Preferred Stock to be withdrawn,
(iii) that such Holder is withdrawing his election to have such $2.00
Preferred Stock exchanged and (iv) the name of the registered Holder of
such $2.00 Preferred Stock, and must be signed by the Holder in the same
manner as the original signature on the Letter of Transmittal (including
any required signature guarantees) or be accompanied by evidence
satisfactory to FPL that the person withdrawing the tender has succeeded to
the beneficial ownership of the $2.00 Preferred Stock being withdrawn. The
Exchange Agent will return the properly withdrawn $2.00 Preferred Stock
promptly following receipt of notice of withdrawal. If $2.00 Preferred
Stock has been tendered pursuant to the procedure for book-entry transfer,
any notice of withdrawal must specify the name and number of the account at
a Book-Entry Transfer Facility to be credited with the withdrawn $2.00
Preferred Stock and otherwise comply with such Book-Entry Transfer
Facility's procedures. All questions as to the validity of notice of
withdrawal, including time of receipt, will be determined by FPL, in its
sole discretion, and such determination will be final and binding on all
parties. Properly withdrawn $2.00 Preferred Stock, however, may be
retendered by following the procedures therefor described elsewhere herein
at any time prior to the Expiration Date. See " - Procedures for
Tendering."
Acceptance of Shares; Delivery of Debentures
FPL expressly reserves the right, in its sole discretion, to delay
acceptance for exchange of $2.00 Preferred Stock tendered under the
Exchange Offer and the delivery of the Debentures with respect to the $2.00
Preferred Stock accepted for exchange (subject to Rules 13e-4 and 14e-1
under the Exchange Act, which require that FPL consummate the Exchange
Offer or return the $2.00 Preferred Stock deposited by or on behalf of the
Holders thereof promptly after the termination or withdrawal of the
Exchange Offer) at any time prior to the Expiration Date for any reason
including (without limitation) if fewer than 1,250,000 shares of the $2.00
Preferred Stock are tendered (which condition may be waived by FPL).
All shares of $2.00 Preferred Stock not accepted pursuant to the Exchange
Offer will be returned to the tendering Holders at FPL's expense as
promptly as practicable following the Expiration Date.
All shares of $2.00 Preferred Stock accepted pursuant to the Exchange
Offer will be retired and canceled.
<PAGE>
Exchange Agent and Information Agent
The Chase Manhattan Bank (National Association) has been appointed as
Exchange Agent for the Exchange Offer.
The Exchange Agent is:
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION)
BY HAND: BY OVERNIGHT COURIER:
Office Hours: 9:00 a.m.- 5:00 p.m. c/o Chase Securities Processing Corp.
(New York City Time) Ft. Lee Executive Park
1 Chase Manhattan Plaza (Floor 1-B) 1 Executive Drive (6th Floor)
Nassau and Liberty Streets Ft. Lee, New Jersey 07024
New York, New York 10081
BY MAIL:
Box 3032
4 Chase MetroTech Center
Brooklyn, New York 11245
Facsimile Transmission
(201) 592-4372
(For Eligible Institutions Only)
Confirm Receipt of Notice of Guaranteed Delivery by Telephone:
(201) 592-4370
Shareholder Inquiries:
(800) 355-2663 (Toll Free)
Georgeson & Company Inc. has been retained by FPL as the Information
Agent to assist in connection with the Exchange Offer. Questions and
requests for assistance regarding the Exchange Offer, requests for
additional copies of this Prospectus or of the Letter of Transmittal and
requests for Notice of Guaranteed Delivery may be directed to Georgeson &
Company Inc. at Wall Street Plaza, New York, New York 10005. Banks and
brokers call collect (212) 440-9800. All others call toll free
1-800-223-2064.
FPL will pay the Exchange Agent and Information Agent reasonable and
customary fees for their services and will reimburse them for all their
reasonable out-of-pocket expenses in connection therewith.
Dealer Managers
__________ and __________ are acting as Dealer Managers for the
Exchange Offer under a Dealer Managers Agreement dated _______________,
1995 (the "Dealer Managers Agreement"). Pursuant to the Dealer Managers
Agreement, the Company has agreed to pay to the Dealer Managers, in
addition to any solicitation fee as described under "Fees and Expenses;
Transfer Taxes," a fee of __________. In addition, the Company has agreed
to reimburse the Dealer Managers for their reasonable out of pocket
expenses, including the reasonable fees and expenses of their legal
counsel.
The Dealer Managers will perform those services in connection with
the Exchange Offer as are customarily performed by investment banking
concerns acting as dealer managers in connection with offers of like
nature, including, but not limited to, soliciting tenders of
$2.00 Preferred Stock pursuant to the Exchange Offer and communicating
generally, and responding to requests for information and material,
regarding the Exchange Offer and the Debentures with brokers, dealers,
commercial banks and trust companies and other persons, including the
Holders of the $2.00 Preferred Stock.
The Company has agreed to indemnify the Dealer Managers against
certain liabilities, including liabilities under the federal securities
laws.
Each of __________ and __________ engages in transactions with, and
from time to time has performed services for, FPL.
LISTING AND TRADING OF DEBENTURES AND $2.00 PREFERRED STOCK
The Debentures constitute a new issue of securities with no
established trading market. While FPL will apply to list the Debentures on
the NYSE, there can be no assurance that an active market for the
Debentures will develop or be sustained in the future. Although the Dealer
Managers have indicated to FPL that they intend to make a market in the
Debentures as permitted by applicable laws and regulations prior to the
commencement of trading on the NYSE, they are not obligated to do so and
may discontinue any such market-making at any time without notice.
Accordingly, no assurance can be given as to the liquidity of, or trading
markets for, the Debentures.
The $2.00 Preferred Stock is currently listed on the NYSE. The
following table sets forth for the calendar quarters indicated the high and
low sale prices as reported by the NYSE.
High Low
------ ------
1993:
First Quarter . . . . . . . . . . . 28 26 1/2
Second Quarter . . . . . . . . . . 28 3/8 27 1/2
Third Quarter . . . . . . . . . . . 28 5/8 27 5/8
Fourth Quarter . . . . . . . . . . 28 5/8 27
1994:
First Quarter . . . . . . . . . . . 28 26
Second Quarter . . . . . . . . . . 26 5/8 24 1/2
Third Quarter . . . . . . . . . . . 26 24 3/4
Fourth Quarter . . . . . . . . . . 25 3/4 23 1/2
1995:
First Quarter . . . . . . . . . . . 26 1/2 24 1/4
Holders of $2.00 Preferred Stock who do not tender their $2.00 Preferred
Stock in the Exchange Offer or whose $2.00 Preferred Stock is not accepted
for exchange will continue to hold such $2.00 Preferred Stock and will be
entitled to all the rights and preferences, and will be subject to all of
the limitations, applicable thereto. To the extent that a certain number
of shares of $2.00 Preferred Stock is tendered and accepted in the Exchange
Offer and/or the number of Holders of $2.00 Preferred Stock is reduced to
below certain levels, FPL, pursuant to NYSE rules and regulations, would be
required to delist the $2.00 Preferred Stock from the NYSE, and the trading
market for untendered $2.00 Preferred Stock could be adversely affected.
FPL does not believe that the Exchange Offer has a reasonable likelihood of
causing the $2.00 Preferred Stock to be delisted from the NYSE.
FEES AND EXPENSES; TRANSFER TAXES
The expenses of soliciting tenders of the $2.00 Preferred Stock will be
borne by FPL. For compensation to be paid to the Dealer Managers, see "The
Exchange Offer Dealer Managers." The total cash expenditures to be
incurred by FPL, other than fees payable to the Dealer Managers, but
including the expenses of the Dealer Managers, printing, accounting and
legal fees, and the fees and expenses of the Exchange Agent, the
Information Agent and the Trustee under the Indenture, are estimated to be
approximately $______________.
The Company will pay any Soliciting Dealer a solicitation fee of $_____
per $25 principal amount of Debentures issued in respect of shares of $2.00
Preferred Stock solicited by such Soliciting Dealer and accepted in the
Exchange Offer. No such fee shall be payable to a Soliciting Dealer if
such Soliciting Dealer is required for any reason to transfer the amount of
such fee to a depositing Holder (other than itself). No such fee shall be
payable to a Soliciting Dealer with respect to shares of $2.00 Preferred
Stock tendered for such Soliciting Dealer's own account. In order for a
Soliciting Dealer to receive a solicitation fee with respect to the tender
of shares of $2.00 Preferred Stock, the Exchange Agent must have received a
Letter of Transmittal with a portion thereof entitled "Notice of Solicited
Tenders" properly completed and duly executed or, in the case of guaranteed
delivery, a Notice of Solicited Tenders properly completed and duly
executed by such Soliciting Dealer.
The Dealer Managers may not, until the Expiration Date, buy, sell, deal
or trade in the $2.00 Preferred Stock for their own account. No broker,
dealer, bank, trust company or fiduciary shall be deemed to be the agent of
the Company, the Dealer Managers, the Exchange Agent or the Information
Agent for purposes of the Exchange Offer except that, in any jurisdiction
where the securities, blue sky, or other laws require the Exchange Offer to
be made by or through a licensed broker or dealer, the Exchange Offer is
being made on behalf of the Company by the Dealer Mangers or one or more
registered brokers or dealers licensed under the law of such jurisdiction.
FPL will pay all transfer taxes, if any, applicable to the exchange of
$2.00 Preferred Stock pursuant to the Exchange Offer. If, however,
beneficial ownership of Debentures or shares of $2.00 Preferred Stock not
tendered or accepted for exchange, are to be issued in the name of, or are
to be delivered to, any person other than the registered Holder of the
$2.00 Preferred Stock tendered or if a transfer tax is imposed for any
reason other than the exchange of $2.00 Preferred Stock pursuant to the
Exchange Offer, then the amount of any such transfer taxes (whether imposed
on the registered Holder or any other persons) will be payable by the
tendering Holder. If satisfactory evidence of payment of such taxes or
exemption therefrom is not submitted with the Letter of Transmittal, the
amount of such transfer taxes will be billed directly to such tendering
Holder.
DESCRIPTION OF THE DEBENTURES
General
The following description of specific terms of the Debentures does not
purport to be complete and is subject in all respects to the provisions of,
and is qualified in its entirety by reference to, the information contained
elsewhere in this Prospectus and in the Indenture, dated as of
June ___, 1995, between FPL and The Chase Manhattan Bank (National
Association), as Trustee (the "Indenture"). Such description makes use of
the terms defined in the Indenture.
The covenants contained in the Indenture would not afford Holders of
Debentures protection in the event of a highly-leveraged transaction
involving FPL.
Principal Amount, Interest and Maturity
The Debentures will be issued as Debt Securities. The Indenture permits
the issuance of Debt Securities in series, the first of which series is the
Debentures. The Debentures will be unsecured, subordinated obligations of
FPL and will be limited in aggregate principal amount to $125 million.
The Debentures will mature on _________________ and will bear interest
at the rate per annum shown in the title thereof payable in equal
quarterly installments, in arrears, on the Interest Payment Dates,
commencing September 30, 1995, to the persons in whose names the Debentures
are registered at the close of business on the relevant Regular Record
Dates. Interest will originally accrue from, and including, the Closing
Date to, and including, the first Interest Payment Date, and thereafter
will accrue from, and excluding, the last Interest Payment Date through
which interest has been paid. No interest will accrue on the Debentures
with respect to the day on which the Debentures mature. In the event that
any date on which interest is payable on the Debentures is not a Business
Day, then payment of the interest payable on such date will be made on the
next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business
Day is in the next succeeding calendar year, such payment shall be made on
the immediately preceding Business Day in each case with the same force and
effect as if made on such date.
Payments in respect of the Debentures will be made at the office or
agency of the Company maintained for that purpose in The City of New York
(which, unless changed, shall be a corporate trust office or agency of the
Trustee). However, at the option of the Company, payments on the
Debentures may be made (i) by checks mailed by the Trustee to the Holders
entitled thereto at their registered addresses or (ii) by wire transfers to
accounts maintained by the Holders entitled thereto as specified in the
Register for the Debentures, provided that, in either case, the payment of
principal with respect to any Debentures will be made only upon surrender
of such Debentures to the Trustee. Interest payable on any Debenture that
is not punctually paid or duly provided for on any Interest Payment Date
will forthwith cease to be payable to the person in whose name such
Debenture is registered on the relevant Regular Record Date, and such
defaulted interest will instead be payable to the person in whose name such
Debenture is registered on the special record date determined in accordance
with the Indenture; provided, however, that interest shall not be
considered payable by the Company on any Interest Payment Date falling
within an Extension Period unless the Company has elected to make a full or
partial payment of interest accrued on the Debentures on such Interest
Payment Date.
Redemption
The Debentures will be redeemable on or prior to February 28, 1997 at
the option of FPL, in whole or in part, upon not less than 30 nor more 60
days' notice, at 108% of the principal amount redeemed plus accrued and
unpaid interest, if any, to the redemption date, and thereafter at 100% of
the principal amount redeemed plus accrued and unpaid interest, if any, to
the redemption date; provided, however, that none of the Debentures shall
be redeemed prior to March 1, 1997, if such redemption is for the purpose,
or in anticipation, of refunding such Debentures through the use, directly
or indirectly, of funds borrowed by FPL at an effective interest cost to
FPL (calculated in accordance with acceptable financial practice) of less
than 8.2102% per annum.
If less than all the Debentures are to be redeemed, the particular
Debentures to be redeemed will be selected by lot or by such other method
of random selection as the Security Registrar deems fair and appropriate.
Any notice of redemption shall state that such redemption will be
conditional upon receipt by the Paying Agent or Agents, on or prior to the
dated fixed for such redemption, of money sufficient to pay the principal
of and premium, if any, and interest, if any, on the Debentures and that if
such money has not been so received, such notice will be of no force and
effect and FPL will not be required to redeem the Debentures.
Option to Extend Interest Payment Period
FPL shall have the right at any time and from time to time during the
term of the Debentures, so long as an Event of Default has not occurred and
is not continuing to elect an Extension Period on the last Business Day of
which Extension Period FPL shall pay all interest then accrued and unpaid
(together with interest thereon at the rate specified for the Debentures to
the extent permitted by applicable law); provided, that, during any such
Extension Period, FPL shall not declare or pay any dividend on, or redeem,
purchase, acquire or make a distribution or liquidation payment with
respect to, any of its Capital Stock, except that FPL may make mandatory
sinking fund payments with respect to its 6.84% Preferred Stock, Series Q
and 8.625% Preferred Stock, Series R. FPL may prepay at any time all or
any portion of the interest accrued during an Extension Period. Based upon
FPL's current financial condition and, in light of the restriction on
payment of dividends during an Extension Period, FPL believes that an
extension of an interest payment period on the Debentures is currently
unlikely and has no current intention to extend such an interest payment
period. Prior to the termination of any such Extension Period, FPL may
further extend the interest payment period, provided that such Extension
Period, together with all such previous and further extensions thereof,
may not exceed 20 consecutive quarterly interest payment periods or extend
beyond the maturity of the Debentures. Upon the termination of any
Extension Period and the payment of all amounts then due, FPL may elect
another Extension Period. During an Extension Period, interest will be due
and payable only on the last day thereof. FPL shall give the Holders of
the Debentures notice of its election of an Extension Period prior to the
earlier of (i) two Business Days prior to the Regular Record Date for the
next Interest Payment Date which would occur but for such election or
(ii) the date FPL is required to give notice to the NYSE or other
applicable self-regulatory organization of the Regular Record Date or
Interest Payment Date.
Subordination
The Debentures will be subordinate and junior in right of payment to all
Senior Indebtedness of FPL.
No payment of principal of (including redemption payments), premium, if
any, or interest on, the Debentures may be made (i) upon certain events of
bankruptcy, insolvency or reorganization, (ii) if any Senior Indebtedness
is not paid when due, (iii) if any other default has occurred permitting
the Holders of Senior Indebtedness to accelerate the maturity thereof and,
in such case, any applicable grace period with respect to such default has
ended, and either 90 days shall not have elapsed after the expiration of
such grace period or the maturity of such Senior Indebtedness shall have
been accelerated because of such default and such acceleration shall not
have been rescinded or annulled, and, with respect to (ii) and (iii) above,
such default has not been cured or waived, or (iv) if the maturity of any
Senior Indebtedness has been accelerated because of an Event of Default.
Upon any distribution of assets of FPL to creditors upon any dissolution,
winding-up, liquidation or reorganization, whether voluntary or involuntary
or in bankruptcy, insolvency, receivership or other proceedings, all
principal of, and premium, if any, and interest due or to become due on,
all Senior Indebtedness must be paid in full before the Holders of the
Debentures are entitled to receive or retain any payment. Upon payment in
full of all Senior Indebtedness, the Holders of the Debentures will be
subrogated to the rights of the Holders of Senior Indebtedness to receive
further payments or distributions applicable to Senior Indebtedness until
all amounts owing on the Debentures are paid in full.
The term "Senior Indebtedness" is defined in the Indenture to mean
obligations (other than non-recourse obligations and the indebtedness
issued under the Indenture) of, or guaranteed or assumed by, FPL for
borrowed money, including both senior and subordinated indebtedness for
borrowed money (other than Debt Securities including the Debentures), or
for the payment of money relating to any lease which is capitalized on the
consolidated balance sheet of FPL and its subsidiaries in accordance with
generally accepted accounting principles as in effect from time to time, or
indebtedness evidenced by bonds, debentures, notes or other similar
instruments, and in each case, amendments, renewals, extensions,
modifications and refundings of any such indebtedness or obligations,
whether existing as of the date of the Indenture or subsequently incurred
by FPL.
An Event of Default with respect to any Senior Indebtedness may not
necessarily constitute an Event of Default with respect to the Debentures.
The Indenture does not limit the aggregate amount of Senior Indebtedness
that FPL may issue. As of March 1995, outstanding Senior Indebtedness of
FPL aggregated approximately $3.8 billion.
Form, Exchange, and Transfer
The Debentures will be issuable only in fully registered form without
coupons and in denominations of $25 and any integral multiple thereof.
At the option of the Holder, subject to the terms of the Indenture and
the limitations applicable to global securities, Debentures will be
exchangeable for other Debentures of the same series, of any authorized
denomination and of like tenor and aggregate principal amount.
Subject to the terms of the Indenture and the limitations applicable to
global securities, Debentures may be presented for exchange as provided
above or for registration of transfer (duly endorsed or accompanied by a
duly executed instrument of transfer) at the office of the Security
Registrar or at the office of any transfer agent designated by FPL for such
purpose. FPL may designate itself the Security Registrar. No service
charge will be made for any registration of transfer or exchange of
Debentures, but FPL may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith. Such
transfer or exchange will be effected upon the Security Registrar or such
transfer agent, as the case may be, being satisfied with the documents of
title and identity of the person making the request. FPL may at any time
designate additional transfer agents or rescind the designation of any
transfer agent or approve a change in the office through which any transfer
agent acts, except that FPL will be required to maintain a transfer agent
in each Place of Payment for the Debentures.
FPL will not be required to (i) issue, register the transfer of, or
exchange any Debentures during a period beginning at the opening of
business 15 calendar days before the day of mailing of a notice of
redemption of any Debentures called for redemption and ending at the close
of business on the day of such mailing or (ii) register the transfer of or
exchange any Debentures so selected for redemption, in whole or in part,
except the unredeemed portion of any such Debentures being redeemed in
part.
Payment and Paying Agents
Payment of interest on the Debentures on any Interest Payment Date will
be made to the person in whose name such Debentures (or one or more
Predecessor Securities) are registered at the close of business on the
Regular Record Date for such interest.
The Chase Manhattan Bank (National Association) will initially act as
Paying Agent and Registrar of the Debentures. Principal of and any premium
and interest on the Debentures will be payable at the office of such Paying
Agent or Paying Agents as FPL may designate for such purpose from time to
time. FPL may at any time designate additional Paying Agents or rescind
the designation of any Paying Agent or approve a change in the office
through which any Paying Agent acts, except that FPL will be required to
maintain a Paying Agent in each Place of Payment for the Debt Securities of
a particular series.
All moneys paid by FPL to a Paying Agent for the payment of the
principal of or any premium or interest on the Debentures which remain
unclaimed at the end of two years after such principal, premium or interest
has become due and payable will be repaid to FPL, and the Holder of such
Debentures thereafter may look only to FPL for payment thereof.
Consolidation, Merger, and Sale of Assets
FPL may not consolidate with or merge into any other corporation or
convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless (i) the corporation formed by such
consolidation or into which FPL is merged or the Person which acquires by
conveyance or transfer, or which leases, the property and assets of FPL
substantially as an entirety shall be a Person organized and validly
existing under the laws of any domestic jurisdiction and such Person
expressly assumes FPL's obligations on the Debt Securities and under the
Indenture, (ii) immediately after giving effect to the transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have occurred and be
continuing, and (iii) FPL shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel as provided in the Indenture.
Events of Default
Each of the following will constitute an Event of Default under the
Indenture with respect to the Debt Securities of any series: (a) failure
to pay any interest on the Debt Securities of such series within 60 days
after the same becomes due and payable; (b) failure to pay principal or
premium, if any, on the Debt Securities of such series within three
Business Days after the same becomes due and payable; (c) failure to
perform or breach of any other covenant or warranty of FPL in the Indenture
(other than a covenant or warranty of FPL in the Indenture solely for the
benefit of one or more series of Debt Securities other than such series)
for 60 days after written notice to FPL by the Trustee, or to FPL and the
Trustee by the Holders of at least 33% in principal amount of the Debt
Securities of such series outstanding under the Indenture as provided in
the Indenture; and (d) certain events of bankruptcy, insolvency or
reorganization.
An Event of Default with respect to the Debt Securities of a particular
series may not necessarily constitute an Event of Default with respect to
Debt Securities of any other series issued under the Indenture.
If an Event of Default with respect to any series of Debt Securities
occurs and is continuing, then either the Trustee or the Holders of not
less than 33% in principal amount of the Outstanding Debt Securities of
such series may declare the principal amount of all of the Debt Securities
of such series to be due and payable immediately; provided, however, that
if an Event of Default occurs and is continuing with respect to more than
one series of Debt Securities under the Indenture, the Trustee or the
Holders of not less than 33% in aggregate principal amount of the
Outstanding Debt Securities of all such series, considered as one class
(and not the Holders of the Debt Securities of any one of such series), may
make such declaration of acceleration.
At any time after the declaration of acceleration with respect to the
Debt Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained, the Event or Events of
Default giving rise to such declaration of acceleration will, without
further act, be deemed to have been waived, and such declaration and its
consequences will, without further act, be deemed to have been rescinded
and annulled, if
(a) FPL has paid or deposited with the Trustee a sum sufficient to pay
(1)all overdue interest on all Debt Securities of such series;
(2)the principal of and premium, if any, on any Debt Securities of
such series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed therefor
in such Debt Securities;
(3)interest upon overdue interest at the rate or rates prescribed
therefor in such Debt Securities, to the extent that payment of such
interest is lawful; and
(4)all amounts due to the Trustee under the Indenture;
(b) any other Event or Events of Default with respect to Debt
Securities of such series, other than the nonpayment of the principal of
the Debt Securities of such series which has become due solely by such
declaration of acceleration, have been cured or waived as provided in the
Indenture.
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default shall occur and be continuing, the
Trustee will be under no obligation to exercise any of its rights or powers
under the Indenture at the request or direction of any of the Holders,
unless such Holders shall have offered to the Trustee reasonable indemnity.
If an Event of Default has occurred and is continuing, subject to such
provisions for the indemnification of the Trustee, the Holders of a
majority in principal amount of the Outstanding Debt Securities of any
series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Debt Securities of such series.
No Holder of Debt Securities of any series will have any right to
institute any proceeding with respect to the Indenture, or for the
appointment of a receiver or a trustee, or for any other remedy thereunder,
unless (i) such Holder has previously given to the Trustee written notice
of a continuing Event of Default with respect to the Debt Securities of
such series, (ii) the Holders of not less than a majority in aggregate
principal amount of the Outstanding Debt Securities of such series have
made written request to the Trustee, and such Holder or Holders have
offered reasonable indemnity to the Trustee to institute such proceeding as
trustee and (iii) the Trustee has failed to institute such proceeding, and
has not received from the Holders of a majority in aggregate principal
amount of the Outstanding Debt Securities of such series a direction
inconsistent with such request, within 60 days after such notice, request
and offer. However, such limitations do not apply to a suit instituted by
a Holder of a Debt Security for the enforcement of payment of the principal
of or any premium or interest on such Debt Security on or after the
applicable due date specified in such Debt Security.
FPL will be required to furnish to the Trustee annually a statement by
an appropriate officer as to such officer's knowledge of FPL's compliance
with all conditions and covenants under the Indenture, such compliance to
be determined without regard to any period of grace or requirement of
notice under the Indenture.
Modification and Waiver
Without the consent of any Holder of Debt Securities, FPL and the
Trustee may enter into one or more supplemental indentures for any of the
following purposes: (a) to evidence the assumption by any permitted
successor to FPL of the covenants of FPL in the Indenture and in the Debt
Securities; or (b) to add one or more covenants of FPL or other provisions
for the benefit of the Holders of Outstanding Debt Securities or to
surrender any right or power conferred upon FPL by the Indenture; or (c) to
add any additional Events of Default with respect to Outstanding Debt
Securities; or (d) to change or eliminate any provision of the Indenture or
to add any new provision to the Indenture, provided that if such change,
elimination or addition will adversely affect the interests of the Holders
of Debt Securities of any series in any material respect, such change,
elimination or addition (1) will become effective with respect to such
series only when the consent of the Holders of Debt Securities of such
series has been obtained in accordance with the Indenture, or (2) when no
Debt Securities of such series remain Outstanding under the Indenture; or
(e) to provide collateral security for all but not part of the Debt
Securities; or (f) to establish the form or terms of Debt Securities of any
other series as permitted by the Indenture; (g) to provide for the
authentication and delivery of bearer securities and coupons appertaining
thereto representing interest, if any, thereon and for the procedures for
the registration, exchange and replacement thereof and for the giving of
notice to, and the solicitation of the vote or consent of, the Holders
thereof, and for any and all other matters incidental thereto; or (h) to
evidence and provide for the acceptance of appointment of a successor
Trustee under the Indenture with respect to the Debt Securities of one or
more series and to add to or change any of the provisions of the Indenture
as shall be necessary to provide for or to facilitate the administration of
the trusts under the Indenture by more than one trustee; or (i) to provide
for the procedures required to permit the utilization of a noncertificated
system of registration for the Debt Securities of any series; or (j) to
change any place where (1) the principal of and premium, if any, and
interest, if any, on any Debt Securities shall be payable, (2) any Debt
Securities may be surrendered for registration of transfer or exchange and
(3) notices and demands to or upon FPL in respect of Debt Securities and
the Indenture may be served; or (k) to cure any ambiguity or inconsistency
or to make or change any other provisions with respect to matters and
questions arising under the Indenture, provided such changes or additions
shall not adversely affect the interests of the Holders of Debt Securities
of any series in any material respect.
The Holders of not less than a majority in aggregate principal amount of
the Debt Securities of all series then Outstanding may waive compliance by
FPL with certain restrictive provisions of the Indenture. The Holders of a
majority in principal amount of the Outstanding Debt Securities of any
series may waive any past default under the Indenture, except a default in
the payment of principal, premium, or interest and certain covenants and
provisions of the Indenture that cannot be modified or be amended without
the consent of the Holder of each Outstanding Debt Security of such series
affected.
Without limiting the generality of the foregoing, if the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), is amended after the
date of the Indenture in such a way as to require changes to the Indenture
or the incorporation therein of additional provisions or so as to permit
changes to, or the elimination of, provisions which, at the date of the
Indenture or at any time thereafter, were required by the Trust Indenture
Act to be contained in the Indenture, the Indenture will be deemed to have
been amended so as to conform to such amendment or to effect such changes
or elimination, and FPL and the Trustee may, without the consent of any
Holders, enter into one or more supplemental indentures to evidence or
effect such amendment.
Except as provided above, the consent of the Holders of not less than a
majority in aggregate principal amount of the Debt Securities of all series
then Outstanding, considered as one class, is required for the purpose of
adding any provisions to, or changing in any manner, or eliminating any of
the provisions of, the Indenture pursuant to one or more supplemental
indentures; provided, however, that if less than all of the series of Debt
Securities Outstanding are directly affected by a proposed supplemental
indenture, then the consent only of the Holders of a majority in aggregate
principal amount of Outstanding Debt Securities of all series so directly
affected, considered as one class, will be required; and provided, further,
that if the Debt Securities of any series have been issued in more than one
Tranche and if the proposed supplemental indenture directly affects the
rights of the Holders of one or more, but less than all, such Tranches,
then the consent only of the Holders of a majority in aggregate principal
amount of the Outstanding Debt Securities of all Tranches so directly
affected, considered as one class, will be required; and provided further,
that no such amendment or modification may (a) change the Stated Maturity
of the principal of, or any installment of principal of or interest on, any
Debt Security, or reduce the principal amount thereof or the rate of
interest thereon (or the amount of any installment of interest thereon) or
change the method of calculating such rate or reduce any premium payable
upon the redemption thereof, or reduce the amount of the principal of any
Discount Security that would be due and payable upon a declaration of
acceleration of Maturity or change the coin or currency (or other property)
in which any Debt Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity of any Debt Security (or, in
the case of redemption, on or after the redemption date) without, in any
such case, the consent of the Holder of such Debt Security, (b) reduce the
percentage in principal amount of the Outstanding Debt Security of any
series, or any Tranche thereof, the consent of the Holders of which is
required for any such supplemental indenture, or the consent of the Holders
of which is required for any waiver of compliance with any provision of the
Indenture or any default thereunder and its consequences, or reduce the
requirements for quorum or voting, without, in any such case, the consent
of the Holder of each Outstanding Debt Security of such series or Tranche,
or (c) modify certain of the provisions of the Indenture relating to
supplemental indentures, waivers of certain covenants and waivers of past
defaults with respect to the Debt Security of any series, or any Tranche
thereof, without the consent of the Holder of each Outstanding Debt
Security affected thereby. A supplemental indenture which changes or
eliminates any covenant or other provision of the Indenture which has
expressly been included solely for the benefit of one or more particular
series of Debt Securities or one or more Tranches thereof, or modifies the
rights of the Holders of Debt Securities of such series or Tranches with
respect to such covenant or other provision, will be deemed not to affect
the rights under the Indenture of the Holders of the Debt Securities of any
other series or Tranche.
The Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given or
taken any direction, notice, consent, waiver, or other action under the
Indenture as of any date, (i) Debt Securities owned by FPL or any other
obligor upon the Debt Securities or any Affiliate of FPL or of such other
obligor (unless FPL, such Affiliate or such obligor owns all Debt
Securities Outstanding under this Indenture, determined without regard to
this clause (i)) shall be disregarded and deemed not to be Outstanding;
(ii) the principal amount of a Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof as provided in the
Indenture; and (iii) the principal amount of a Debt Security denominated in
one or more foreign currencies or a composite currency that will be deemed
to be Outstanding will be the Dollar equivalent, determined as of such date
in the manner prescribed for such Debt Security, of the principal amount of
such Debt Security (or, in the case of a Debt Security described in clause
(ii) above, of the amount described in such clause).
If FPL shall solicit from Holders any request, demand, authorization,
direction, notice, consent, election, waiver or other Act, FPL may, at its
option, by Board Resolution, fix in advance a Regular Record Date for the
determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, election, waiver or other Act,
but FPL shall have no obligation to do so. If such a Regular Record Date
is fixed, such request, demand, authorization, direction, notice, consent,
election, waiver or other Act may be given before or after such Regular
Record Date, but only the Holders of record at the close of business on the
Regular Record Date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of the Outstanding
Debt Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and
for that purpose the Outstanding Debt Securities shall be computed as of
the Regular Record Date. Any request, demand, authorization, direction,
notice, consent, election, waiver or other Act of a Holder shall bind every
future Holder of the same Debt Security and the Holder of every Debt
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or FPL in reliance thereon, whether or
not notation of such action is made upon such Debt Security.
Defeasance
The Debentures, or any portion of the principal amount thereof, will be
deemed to have been paid for purposes of the Indenture, and, at FPL's
election, the entire indebtedness of FPL in respect thereof will be deemed
to have been satisfied and discharged, if there has been irrevocably
deposited with the Trustee or any Paying Agent (other than FPL), in trust:
(a) money in an amount which will be sufficient, or (b) Eligible
Obligations (as described below), which do not contain provisions
permitting the redemption or other prepayment thereof at the option of the
issuer thereof, the principal of and the interest on which when due,
without any regard to reinvestment thereof, will provide monies which,
together with money, if any, deposited with or held by the Trustee or such
Paying Agent, will be sufficient, or (c) a combination of (a) and (b) which
will be sufficient, to pay when due the principal of and premium, if any,
and interest, if any, due and to become due on the Debentures or portions
thereof. For this purpose, Eligible Obligations include direct obligations
of, or obligations unconditionally guaranteed by, the United States,
entitled to the benefit of the full faith and credit thereof, and
certificates, depositary receipts or other instruments which evidence a
direct ownership interest in such obligations or in any specific interest
or principal payments due in respect thereof.
Under existing case law and regulations, a defeasance which is deemed to
satisfy and discharge the entire indebtedness of FPL with respect to the
Debentures might be treated as a significant modification of the
obligations in respect of the Debentures which for United States federal
income tax purposes may be treated as a taxable exchange. If the
defeasance were a taxable exchange, Holders would recognize gain or loss in
the amount by which the fair market value of the Debentures after the
defeasance was greater or less than the Holder's basis in the Debentures
prior to the defeasance. Such gain or loss, generally, would be capital to
Holders for whom the Debentures are held as capital assets. Prospective
investors are urged to consult their own tax advisors as to the specific
consequences to them of such deposit.
Resignation of Trustee
The Trustee may resign at any time by giving written notice thereof to
FPL or may be removed at any time by Act of the Holders of a majority in
principal amount of all series of Debt Securities then Outstanding
delivered to the Trustee and FPL. No resignation or removal of the Trustee
and no appointment of a successor trustee will become effective until the
acceptance of appointment by a successor trustee in accordance with the
requirements of the Indenture. So long as no Event of Default or event
which, after notice or lapse of time, or both, would become an Event of
Default has occurred and is continuing and except with respect to a Trustee
appointed by Act of the Holders, if FPL has delivered to the Trustee a
resolution of its Board of Directors appointing a successor trustee and
such successor has accepted such appointment in accordance with the terms
of the Indenture, the Trustee will be deemed to have resigned and the
successor will be deemed to have been appointed as trustee in accordance
with the Indenture.
Notices
Notices to Holders of Debentures will be given by mail to the addresses
of such Holders as they may appear in the Security Register.
Title
FPL, the Trustee, and any agent of FPL or the Trustee, may treat the
Person in whose name Debentures are registered as the absolute owner
thereof (whether or not such Debentures may be overdue) for the purpose of
making payments and for all other purposes irrespective of notice to the
contrary.
Governing Law
The Indenture and the Debentures will be governed by, and construed in
accordance with, the law of the State of New York.
Regarding the Trustee
The Trustee under the Indenture is The Chase Manhattan Bank (National
Association). In addition to acting as Trustee under the Indenture and
Exchange Agent for the Exchange Offer, The Chase Manhattan Bank (National
Association) supports all credit lines, provides a general purpose
commercial paper backup line of credit and acts as agent for an insurance
facility for FPL.
DESCRIPTION OF CERTAIN TERMS OF THE $2.00 PREFERRED STOCK
In addition to terms described above under "Prospectus
Summary - Comparison of Debentures and $2.00 Preferred Stock", the
following terms apply to the $2.00 Preferred Stock:
Voting Rights
FPL Group, Inc., as the only Holder of common stock of FPL, has sole
voting power, except as indicated below or as otherwise required by law.
If any four full quarterly dividends on any of the 4 1/2% Preferred Stock,
4 1/2% Preferred Stock Series A, Serial Preferred Stock or No Par Preferred
Stock (which includes the $2.00 Preferred Stock) (collectively, the
"Preferred Stocks") of FPL are in default (no dividends are currently
in default), the Holders of shares of any class of the Preferred Stock
become entitled, as one class, to elect a majority of the Board of
Directors, which right does not terminate until full dividends have been
provided for all past periods. When entitled to vote, the Holders
of the Preferred Stocks (other than the No Par Preferred Stock)
shall have one vote for each share held and the Holders of No
Par Preferred Stock shall have one vote for every $100liquidation
value established by the Board of Directors or a committee
thereof, provided that amounts less than $100 shall be afforded their
proportional fractional vote.
So long as any shares of the No Par Preferred Stock are outstanding, FPL
shall not, without the consent of at least two-thirds of the total number
of votes attributable to the outstanding shares of each class of Preferred
Stock voting together as one class, (1) create or authorize any new stock
ranking prior to the No Par Preferred Stock or any security convertible
into shares of such prior ranking stock; or (2) amend, alter or repeal any
of the rights, preferences or powers of any series of the No Par Preferred
Stock so as to alter materially any such rights, preferences or power,
provided that with respect to (2) above, (i) the Preferred Stocks other
than the No Par Preferred Stock shall be entitled to vote as a member of
such voting class only if the same right, preference or power of such
Preferred Stocks other than the No Par Preferred Stock are proposed to be
materially amended, altered or repealed in such manner, and (ii) if any
amendment, alteration or repeal would alter materially the rights,
preferences or powers of less than all the series of the Preferred Stocks,
the consent of only the Holders of at least two-thirds of the total number
of votes attributable to the outstanding shares of all series so affected,
voting as a class, shall be required.
Without the consent of the Holders of at least a majority of the
outstanding shares of each of the 4 1/2% Preferred Stock and 4 1/2%
Preferred Stock Series A and a majority of the outstanding shares of
each series of the Serial Preferred Stock, and so long as any shares of
the No Par Preferred Stock are outstanding, without the consent of the
Holders of at least a majority of the total number of votes attributable
to the outstanding Preferred Stocks, voting together as a class, FPL shall
not (1) merge or consolidate into any other corporation or dispose of
substantially all of the assets of FPL unless the merger, consolidation or
disposition or the exchange, issuance or assumption of all issued or
assumed securities have the approval of governmental regulatory bodies;
(2) issue or assume (except for refunding purposes) any unsecured
indebtedness in the event the total amount of all unsecured indebtedness
would exceed 20% of the sum of the secured indebtedness of FPL plus
capital and surplus of FPL; (3) issue any shares of the Preferred
Stocks, or of any other class of stock ranking prior to or on
a parity with the Preferred Stocks as to dividends or distributions,
unless (a) net income (after depreciation and taxes) for a period
of twelve consecutive months within the fifteen months immediately
preceding the issuance of such shares is at least equal to twice the annual
dividend requirements on all outstanding shares of Preferred Stocks, and on
all other prior or parity stock, including the shares proposed to be
issued, and (b) gross income (after depreciation and taxes) for such period
shall have been 1.5 times the sum of annual interest charges on all
indebtedness and annual dividend requirements on the Preferred Stocks,
including the shares proposed to be issued, and on all other prior or
parity stock; or (4) issue any shares of the Preferred Stocks or of any
prior or parity stock unless the aggregate of common stock capital and
surplus shall be not less than the aggregate amount payable on the
involuntary liquidation, dissolution or winding up of FPL in respect of all
Preferred Stocks to be outstanding immediately thereafter and on all other
prior or parity stock.
Liquidation Rights
In the event of any voluntary liquidation, dissolution or winding up of
FPL, the $2.00 Preferred Stock, pari passu with all classes of Preferred
Stocks then outstanding, shall have a preference over each series of FPL's
Subordinated Preferred Stock (none of which has been issued or is
outstanding) and common stock until an amount equal to the then current
redemption price shall have been paid. In the event of any involuntary
liquidation, dissolution or winding up of FPL, the $2.00 Preferred Stock,
pari passu with all classes of Preferred Stocks then outstanding, shall
also have a preference over each series of FPL's Subordinated Preferred
Stock and common stock until the full involuntary liquidation value thereof
($25 per share) plus all accumulated and unpaid dividends thereon shall
have been paid.
Miscellaneous
The $2.00 Preferred Stock has no subscription rights, conversion rights
or preemptive rights.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
The following summary describes certain United States federal income tax
consequences of the ownership of Debentures as of the date hereof and
represents the opinion of Reid & Priest LLP, counsel to FPL, insofar as it
relates to matters of law or legal conclusions. Except where noted, it
deals only with Debentures held as capital assets and acquired pursuant to
the Exchange Offer and does not deal with special situations, such as those
of dealers in securities or currencies, financial institutions, life
insurance companies, persons holding Debentures as a part of a hedging or
conversion transaction or a straddle, United States Holders (as defined
herein) whose "functional currency" is not the U.S. dollar, or Non-United
States Holders (as defined herein) who own (actually or constructively) ten
percent or more of the combined voting power of all classes of voting stock
of FPL, who are present in the United States or who have any other special
status with respect to the United States. Furthermore, the discussion
below is based upon the provisions of the Internal Revenue Code of 1986, as
amended (the "Code"), and regulations, rulings and judicial decisions
thereunder as of the date hereof, and such authorities may be repealed,
revoked or modified so as to result in federal income tax consequences
different from those discussed below.
ALL HOLDERS OF $2.00 PREFERRED STOCK ARE ADVISED TO CONSULT WITH THEIR
TAX ADVISORS AS TO THE UNITED STATES FEDERAL INCOME TAX CONSEQUENCES OF THE
EXCHANGE OF DEBENTURES FOR $2.00 PREFERRED STOCK AND OF THE OWNERSHIP AND
DISPOSITION OF DEBENTURES IN LIGHT OF THEIR PARTICULAR CIRCUMSTANCES, AS
WELL AS THE EFFECT OF ANY STATE, LOCAL OR OTHER TAX LAWS.
United States Holders
As used herein, a "United States Holder" means a Holder that is a
citizen or resident of the United States, a corporation, partnership or
other entity created or organized in or under the laws of the United States
or any political subdivision thereof, or an estate or trust the income of
which is subject to United States federal income taxation regardless of its
source. A "Non-United States Holder" is a Holder that is not a United
States Holder.
Exchange of Debentures for $2.00 Preferred Stock
The exchange of Debentures for $2.00 Preferred Stock pursuant to the
Exchange Offer will be a taxable transaction. In the case of a United
States Holder who owns (actually or constructively) solely $2.00 Preferred
Stock, or not more than one percent of the $2.00 Preferred Stock
outstanding and not more than one percent of any other class of FPL Capital
Stock, gain or loss will be recognized in an amount equal to the difference
between the fair market value of the Debentures at the time of the exchange
plus the Payment in Lieu of Accumulated Dividends, and the exchanging
Holder's tax basis in the $2.00 Preferred Stock exchanged therefor and will
be long-term capital gain or loss if the $2.00 Preferred Stock has been
held for more than one year as of such date. A United States Holder's
aggregate tax basis in the Debentures will be equal to the fair market
value of the Debentures at the time of the exchange.
Holders of the $2.00 Preferred Stock owning (actually or constructively)
more than one percent of any class of FPL's stock are advised to consult
their own tax advisors as to the income tax consequences of exchanging
Debentures for $2.00 Preferred Stock.
Original Issue Discount, Market Discount and Acquisition Premium
Under the terms of the Debentures, FPL has the option to defer payments
of interest for up to 20 consecutive quarterly interest payment periods and
to pay as a lump sum at the end of such period all of the interest that has
accrued during such period. Because of this option to extend the interest
payment periods, all of the stated interest payments on the Debentures will
be treated as OID. As a result, United States Holders will be required to
accrue interest income even if they use the cash method of tax accounting.
In the event that the interest payment period is extended, a United States
Holder will be required to continue to include OID in income on an economic
accrual basis notwithstanding that FPL will not make any interest payments
on the Debentures. In addition, the amount of OID will be increased or
decreased if the "issue price" of the Debentures (fair market value at the
time of the exchange, which will not include the Payment in Lieu of
Accumulated Dividends ) is less than or greater than their stated principal
amount.
It is anticipated that the issue price of the Debentures will equal or
exceed their stated principal amount. In the event that the issue price of
the Debentures is less than their stated principal amount, however, the
Treasury Regulations may be read to require a recalculation of the amount
of OID for each period that FPL does not exercise its right to extend the
interest payment. This recalculation could result in minor adjustments to
the amount of OID taxable to the Holders for such period.
To the extent a subsequent United States Holder acquires Debentures at a
price that is less than their adjusted issue price (the fair market value
of the Debentures at the time of the exchange, which does not include the
Payment in Lieu of Accumulated Dividends, adjusted for the accrual of OID
and interest payments), the Holder will have purchased such Debentures at a
market discount. Under the market discount rules, a United States Holder
will be required to treat any principal payment on, or any gain on the
sale, exchange, retirement or other disposition of, Debentures as ordinary
income to the extent of the market discount which has not previously been
included in income and is treated as having accrued on such Debentures at
the time of such payment or disposition. Market discount accrues ratably,
or, at the election of the Holder, under a constant yield method over the
remaining term of the Debentures. In addition, the United States Holder
may be required to defer, until the maturity of the Debentures or their
earlier disposition in a taxable transaction, the deduction of all or a
portion of the interest expense on any indebtedness incurred or continued
to purchase or carry such Debentures. In lieu of the foregoing, a Holder
may elect to include market discount in income currently as it accrues on
all market discount instruments acquired by such Holder in the taxable year
of the election or thereafter, in which case the interest deferral rule
will not apply.
A subsequent United States Holder that purchases Debentures for an
amount that is greater than their adjusted issue price will be able to
offset a portion of such acquisition premium properly allocable to a
taxable year against the accrual of income on such Debentures.
Sale, Exchange and Retirement of the Debentures
Upon the sale, exchange or retirement of Debentures, a United States
Holder will recognize gain or loss equal to the difference between the
amount realized upon the sale, exchange or retirement and the adjusted tax
basis of the Debentures. A United States Holder's adjusted tax basis in
Debentures will, in general, be the United States Holder's initial basis
therefor, increased by OID or market discount previously included in income
by the United States Holder and reduced by any amortized premium and any
cash payments on the Debentures. Except as described above with respect to
market discount, such gain or loss will be capital gain or loss and will be
long-term capital gain or loss if at the time of sale, exchange or
retirement, the Debentures have been held for more than one year. Under
current law, net capital gains of individuals are, under certain
circumstances, taxed at lower rates than items of ordinary income. The
deductibility of capital losses is subject to limitations.
Non-United States Holders
Under present United States federal income and estate tax law, and
subject to the discussion below concerning backup withholding:
(a) no withholding of United States federal income tax will be required
with respect to a Non-United States Holder upon the exchange of the
Debentures for $2.00 Preferred Stock pursuant to the Exchange Offer
provided such Holder proves, in a manner and under arrangements
satisfactory to FPL or its agents, that such Holder owns (actually or
constructively) solely $2.00 Preferred Stock, or not more than one percent
of the $2.00 Preferred Stock outstanding and not more than one percent of
any other class of FPL's stock, or that the exchange of Debentures for
$2.00 Preferred Stock otherwise qualifies as a sale or exchange for United
States federal income tax purposes. If a non-United States Holder does not
provide the proof described in the preceding sentence, FPL will withhold
federal income tax at a rate of 30% of the gross proceeds paid to such
Holder pursuant to the Exchange Offer;
(b) no withholding of United States federal income tax will be required
with respect to the payment by FPL or any paying agent of principal or
interest (which for purposes of this discussion includes OID) on Debentures
owned by a Non-United States Holder, provided (i) the beneficial owner is
not a controlled foreign corporation that is related to FPL through stock
ownership and (ii) either (y) the beneficial owner certifies to FPL or its
agent, under the penalties of perjury, that it is not a U.S. person,
citizen or resident and provides its name and address or (z) a financial
institution holding the Debentures on behalf of the beneficial owner
certifies, under penalties of perjury, that such statement has been
received by it and furnishes FPL or its agent with a copy thereof;
(c) no withholding of United States federal income tax will be required
with respect to any gain or income realized by a Non-United States Holder
upon the sale, exchange or retirement of Debentures; and
(d) Debentures beneficially owned by an individual who at the time of
death is a Non-United States Holder will not be subject to United States
federal estate tax as a result of such individual's death, provided that
the interest payments with respect to such Debentures would not have been,
if received at the time of such individual's death, effectively connected
with the conduct of a trade or business by such individual in the United
States as provided under the Treasury Regulations.
Backup Withholding and Information Reporting
In general, information reporting requirements will apply to (i) certain
payments of principal, interest and OID paid on the Debentures, (ii) the
gross proceeds from the exchange of the Debentures for the $2.00 Preferred
Stock pursuant to the Exchange Offer, and (iii) the proceeds of sale of the
Debentures made to United States Holders other than certain exempt
recipients (such as corporations). A 31% backup withholding tax will apply
to payments described in the preceding sentence if the United States Holder
fails to provide a taxpayer identification number or certification of
exempt status or fails to report in full dividend and interest income.
No information reporting or backup withholding will be required with
respect to payments made by FPL or any paying agent to Non-United States
Holders if a statement described in (b) (ii) under "Non-United States
Holders" has been received and the payor does not have actual knowledge
that the beneficial owner is a United States person.
Payments of the proceeds from the sale by a Non-United States Holder of
Debentures and the gross proceeds from the exchange of the Debentures for
the $2.00 Preferred Stock pursuant to the Exchange Offer made to or through
a foreign office of a broker will not be subject to information reporting
or backup withholding, except that if the broker is, for federal income tax
purposes, a United States person, a controlled foreign corporation or a
foreign person that derives 50% or more of its gross income for certain
periods from the conduct of a trade or business in the United States, such
payments will not be subject to backup withholding but may be subject to
information reporting. Such payment of the proceeds of the sale of
Debentures and the exchange of the Debentures for $2.00 Preferred Stock to
or through the United States office of a broker is subject to information
reporting and backup withholding unless the Non-United States Holder or the
beneficial owner certifies as to its non-United States status or otherwise
establishes an exemption.
Any amounts withheld under the backup withholding rules will be allowed
as a refund or a credit against such Holder's United States federal income
tax liability provided the required information is furnished to the IRS.
LEGAL MATTERS
The validity of the Debentures will be passed upon for FPL by Steel
Hector & Davis, West Palm Beach, Florida, and Reid & Priest LLP, New York,
New York, co-counsel to FPL. Reid & Priest LLP may rely as to all matters
of Florida law on Steel Hector & Davis. Steel Hector & Davis may rely as
to all matters of New York law on Reid & Priest LLP. Statements as to U.S.
taxation in this Prospectus under the caption "Certain United States
Federal Income Tax Consequences" have been passed upon for FPL by Reid &
Priest LLP, counsel to FPL, and are stated herein on their authority.
Certain legal matters will be passed upon for the Dealer Managers by
Winthrop, Stimson, Putnam & Roberts.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference to the Annual Report on Form 10-K for the year ended December 31,
1994 have been so incorporated in reliance on the report of Deloitte &
Touche LLP, independent auditors, given on the authority of said firm as
experts in auditing and accounting.
<PAGE>
Facsimile copies of the Letter of Transmittal will be accepted. Letters
of Transmittal, certificates representing shares of Preferred Stock,
Notices of Guaranteed Delivery and any other required documents, should be
sent by each shareholder or his broker, dealer, commercial bank, trust
company or other nominee to the Exchange Agent at one of the addresses as
set forth below:
The Exchange Agent is:
The Chase Manhattan Bank (National Association)
BY HAND: BY OVERNIGHT COURIER:
Office Hours: 9:00 a.m.- 5:00 p.m. c/o Chase Securities Processing Corp.
(New York City Time) Ft. Lee Executive Park
1 Chase Manhattan Plaza (Floor 1-B) 1 Executive Drive (6th Floor)
Nassau and Liberty Streets Ft. Lee, New Jersey 07024
New York, New York 10081
BY MAIL:
Box 3032
4 Chase MetroTech Center
Brooklyn, New York 11245
Facsimile Transmission
(201) 592-4372
(For Eligible Institutions Only)
Confirm Receipt of Notice of Guaranteed Delivery by Telephone:
(201) 592-4370
Shareholder Inquiries:
(800) 355-2663 (Toll Free)
Any questions or requests for assistance or additional copies of this
Prospectus, the Letter of Transmittal and the Notice of Guaranteed Delivery
may be directed to the Information Agent or the Dealer Managers at their
respective telephone numbers and locations set forth below. You may also
contact your broker, dealer, commercial bank or trust company or other
nominee for assistance concerning the Exchange Offer.
The Information Agent is:
GEORGESON
& COMPANY INC.
Wall Street Plaza
New York, New York 10005
Banks and Brokers call collect:
(212) 440-9800
All others call toll-free:
1-800-223-2064
The Dealer Managers for the Exchange Offer are:
__________ ___________
__________ ___________
__________ ___________
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Section 607.0850 of the Florida Statutes generally permits FPL to
indemnify its directors, officers, employees or other agents who are
subject to any third-party actions because of their service to FPL if such
persons acted in good faith and in a manner they reasonably believed to be
in, or not opposed to, the best interests of FPL. If the proceeding is a
criminal one, such person must also have had no reasonable cause to believe
such person's conduct was unlawful. In addition, FPL may indemnify its
directors, officers, employees or other agents who are subject to
derivative actions against expenses and amounts paid in settlement which do
not exceed, in the judgment of the board of directors, the estimated
expense of litigating the proceeding to conclusion, actually and reasonably
incurred in connection with the defense or settlement of such proceeding,
if such person acted in good faith and in a manner such person reasonably
believed to be in, or not opposed to, the best interests of FPL. To the
extent that a director, officer, employee or other agent is successful on
the merits or otherwise in defense of a third-party or derivative action,
such person will be indemnified against expenses actually and reasonably
incurred in connection therewith. This Section also permits a corporation
further to indemnify such persons by other means unless a judgment or other
final adjudication establishes that such person's actions or omissions
which were material to the cause of action constitute (1) a crime (unless
such person had reasonable cause to believe such person's conduct was
lawful or had no reasonable cause to believe it unlawful), (2) a
transaction from which such person derived an improper personal benefit,
(3) a transaction in violation of Florida Statutes Section 607.0834
(unlawful distributions to shareholders), or (4) willful misconduct or a
conscious disregard for the best interests of the corporation in a
proceeding by or in the right of the corporation to procure a judgment in
its favor or in a proceeding by or in the right of a shareholder.
Furthermore, Florida Statutes Section 607.0831 provides, in general,
that no director shall be personally liable for monetary damages to FPL or
any other person for any statement, vote, decision, or failure to act,
regarding corporate management or policy, unless (a) the director breached
or failed to perform his or her duties as a director; and (b) the
director's breach of, or failure to perform, those duties constitute (i) a
violation of criminal law, unless the director had reasonable cause to
believe his or her conduct was lawful or had no reasonable cause to believe
his or her conduct was unlawful, (ii) a transaction from which the director
derived an improper personal benefit, either directly or indirectly,
(iii) a circumstance under which the liability provisions of Florida
Statutes Section 607.0834 are applicable (iv) in a proceeding by or in the
right of FPL to procure a judgment in its favor or by or in the right of
shareholder, conscious disregard for the best interest of FPL, or willful
misconduct, or (v) in a proceeding by or in the right of someone other than
FPL or a shareholder, recklessness or an act or omission which was
committed in bad faith or with malicious purpose or in a manner exhibiting
wanton and willful disregard of human rights, safety, or property. The
term "recklessness," as used above, means the action, or omission to act,
in conscious disregard of a risk: (a) known, or so obvious that it should
have been known, to the director; and (b) known to the director, or so
obvious that it should have been known, to be so great as to make it highly
probable that harm would follow from such action or omission.
FPL's Bylaws provide generally that FPL shall, to the fullest extent
permitted by law, indemnify all directors and officers of FPL, directors,
officers, or other employees serving as a fiduciary of an employee benefit
plan of FPL, as well as any employees or agents of FPL or other persons
serving at the request of FPL in any capacity with any entity or enterprise
other than FPL to whom FPL has agreed to grant indemnification (each, an
"Indemnified Person") to the extent that any such person is made a party or
threatened to be made a party or called as a witness or is otherwise
involved in any action, suit, or proceeding in connection with his status
as an Indemnified Person. Such indemnification covers all expenses
incurred by any Indemnified Person (including attorney's fees) and all
liabilities and losses (including judgments, fines, and amounts to be paid
in settlement) incurred thereby in connection with any such action, suit or
proceeding.
In addition, FPL carries insurance permitted by the laws of Florida
on behalf of directors, officers, employees or agents which may cover,
among other things, liabilities under the Securities Act.
Item 21. Exhibits.
1 (a) -- Form of Dealer Managers Agreement.
* 4 (a) -- Restated Articles of Incorporation of FPL dated March
23, 1992 (filed as Exhibit 3(i)a to Form 10-K for the
year ended December 31, 1994, File No. 1-3545).
* 4 (b) -- Amendment to FPL's Restated Articles of Incorporation
dated March 23, 1992 (filed as Exhibit 3(i)b to Form
10-K for the year ended December 31, 1994, File No. 1-
3545).
* 4 (c) -- Amendment to FPL's Restated Articles of Incorporation
dated May 11, 1992 (filed as Exhibit 3(i)c to Form 10-
K for the year ended December 31, 1994, File No. 1-
3545).
* 4 (d) -- Amendment to FPL's Restated Articles of Incorporation
dated March 12, 1993 (filed as Exhibit 3(i)d to Form
10-K for the year ended December 31, 1994, File No.
1-3545).
* 4 (e) -- Amendment to FPL's Restated Articles of Incorporation
dated June 16, 1993 (filed as Exhibit 3(i)e to Form
10-K for the year ended December 31, 1994, File No. 1-
3545).
* 4 (f) -- Amendment to FPL's Restated Articles of Incorporation
dated August 31, 1993 (filed as Exhibit 3(i)f to Form
10-K for the year ended December 31, 1994, File No. 1-
3545).
* 4 (g) -- Amendment to FPL's Restated Articles of Incorporation
dated November 30, 1993 (filed as Exhibit 3(i)g to
Form 10-K for the year ended December 31, 1994, File
No. 1-3545).
* 4 (h) -- Bylaws of FPL dated May 11, 1992 (filed as exhibit
3(ii) to Form 10-K for the year ended December 31,
1994, File No. 1-3545).
* 4 (i) -- Mortgage and Deed of Trust dated as of January 1,
1944, and ninety-five Supplements thereto between FPL
and Bankers Trust Company, Trustee (filed as Exhibit
B-3, File No. 2-4845; Exhibit 7(a), File No. 2-7126;
Exhibit 7(a), File No. 2-7523; Exhibit 7(a), File No.
2-7990; Exhibit 7(a), File No. 2-9217; Exhibit 4(a)-5,
File No. 2-10093; Exhibit 4(c), File No. 2-11491;
Exhibit 4(b)-1, File No. 2-12900; Exhibit 4(b)-1, File
No. 2-13255; Exhibit 4(b)-1, File No. 2-13705; Exhibit
4(b)-1, File No. 2-13925; Exhibit 4(b)-1, File
No. 2-15088; Exhibit 4(b)-1, File No. 2-15677; Exhibit
4(b)-1, File No. 2-20501; Exhibit 4(b)-1, File
No. 2-22104; Exhibit 2(c), File No. 2-23142; Exhibit
2(c), File No. 2-24195; Exhibit 4(b)-1, File No.
2-25677; Exhibit 2(c), File No. 2-27612; Exhibit 2(c),
File No. 2-29001; Exhibit 2(c), File No. 2-30542;
Exhibit 2(c), File No. 2-33038; Exhibit 2(c), File No.
2-37679; Exhibit 2(c), File No. 2-39006; Exhibit 2(c),
File No. 2-41312; Exhibit 2(c), File No. 2-44234;
Exhibit 2(c), File No. 2-6502; Exhibit 2(c), File No.
2-48679; Exhibit 2(c), File No. 2-49726; Exhibit 2(c),
File No. 2-50712; Exhibit 2(c), File No. 2-52826;
Exhibit 2(c), File No. 2-53272; Exhibit 2(c), File No.
2-54242; Exhibit 2(c), File No. 2-56228; Exhibits 2(c)
and 2(d), File No. 2-60413; Exhibits 2(c) and 2(d),
File No. 2-65701; Exhibit 2(c), File No. 2-66524;
Exhibit 2(c), File No. 2-67239; Exhibit 4(c), File No.
2-69716; Exhibit 4(c), File No. 2-70767; Exhibit 4(b),
File No. 2-71542; Exhibit 4(b), File No. 2-73799;
Exhibits 4(c), 4(d) and 4(e), File No. 2-75762;
Exhibit 4(c), File No. 2-77629; Exhibit 4(c), File
No. 2-79557; Exhibit 99(a) to Post-Effective Amendment
No. 5 to Form S-8, File No. 33-18669; Exhibit 99(a) to
Post-Effective Amendment No. 1 to Form S-3 File
No. 33-46076; Exhibit 4(b) to Form 10-K for the year
ended December 31, 1993, File No. 1-3545; and Exhibit
4(i) to Form 10-Q for the quarter ended June 30, 1994,
File No. 1-3545).
4 (j) -- Form of Indenture relating to the Debt Securities of
FPL.
4 (k) -- Form of Excerpts from the Unanimous Consent of the
Finance Committee of the Board of Directors in lieu of
Meeting, establishing Debentures.
4 (l) -- Form of Officer's Certificate establishing Debentures.
4 (m) -- Form of Debentures.
4 (n) -- Form of Letter of Transmittal.
5 (a) -- Opinion of Steel Hector & Davis.
5 (b) -- Opinion of Reid & Priest LLP.
8 -- Tax Opinion of Reid & Priest LLP.
* 12 -- Computation of Ratio of Earnings to Fixed Charges
(filed as Exhibit 12 to Form 10-K for the fiscal year
ended December 31, 1994, File No. 1-3545; and as
Exhibit 12 to Form 10-Q for the fiscal quarter ended
March 31, 1995, File No. 1-3545).
23 (a) -- Consent of Deloitte & Touche LLP.
23 (b) -- Consents of Reid & Priest LLP (contained in opinions
filed as Exhibits 5(b) and 8 hereto).
23 (c) -- Consent of Steel Hector & Davis (contained in opinion
filed as Exhibit 5(a) hereto).
24 -- Power of Attorney (included on the signature page of
this registration statement).
25 -- Form T-1 of The Chase Manhattan Bank (National
Association).
99 (a) -- Form of Exchange Agent Agreement.
99 (b) -- Form of letter to Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees.
99 (c) -- Form of letter from Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees to their
clients.
99 (d) -- Form of Notice of Guaranteed Delivery.
99 (e) -- Form of letter to Shareholders of $2.00 Preferred
Stock.
99 (f) -- Form of Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9.
-------------------------
* Incorporated herein by reference as indicated.
Item 22. Undertakings.
The undersigned registrant hereby undertakes:
(1) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange
Act of 1934 that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered herein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(2) That prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this
Registration Statement, by any person or party who is deemed to be an
underwriter within the meaning of Rule 145(c), such reoffering
prospectus will contain the information called for by the applicable
registration form with respect to reofferings by persons who may be
deemed underwriters, in addition to the information called for by the
other items of the applicable form.
(3) That every prospectus (i) that is filed pursuant to paragraph (2)
immediately preceding, or (ii) that purports to meet the requirements of
Section 10(a)(3) of the Securities Act of 1933 and is used in connection
with an offering of securities subject to Rule 415, will be filed as a
part of an amendment to this Registration Statement and will not be used
until such amendment is effective, and that, for purposes of determining
any liability under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(4) That, insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions
described under Item 15 above, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(5) To respond to requests for information that is incorporated by
reference in the Prospectus pursuant to Items 4, 10(b), 11 or 13 of Form
S-4, within one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt
means. This includes information contained in documents filed
subsequent to the effective date of this Registration Statement through
the date of responding to the request.
(6) To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved
therein, that was not the subject of and included in the Registration
Statement when it became effective.
<PAGE>
POWER OF ATTORNEY
Each director and/or officer of the registrant whose signature appears
below hereby appoints the agents for service named in this registration
statement, and each of them severally, as his attorney-in-fact to sign in
his name and behalf, in any and all capacities stated below and to file
with the Securities and Exchange Commission, any and all amendments,
including post-effective amendments, to this registration statement, and
the registrant hereby also appoints each such agent for service as its
attorney-in-fact with like authority to sign and file any such amendments
in its name and behalf.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Juno
Beach, and State of Florida, on the 16th day of May, 1995.
FLORIDA POWER & LIGHT COMPANY
By: /s/ PAUL J. EVANSON
---------------------------
Paul J. Evanson
(President and Director)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated:
Signature Title Date
--------- ----- ----
/s/ JAMES L. BROADHEAD
------------------------- Principal Executive May 16, 1995
James L. Broadhead Officer and Director
(Chairman of the Board)
/s/ MICHAEL W. YACKIRA
------------------------- Principal Financial May 16, 1995
Michael W. Yackira Officer and Director
(Senior Vice President,
Finance and Chief Financial
Officer)
/s/ K. MICHAEL DAVIS
------------------------- Principal Accounting May 16, 1995
K. Michael Davis Officer
(Vice President, Accounting,
Controller and Chief
Accounting Officer)
/s/ DENNIS P. COYLE
------------------------- May 16, 1995
Dennis P. Coyle
/s/ JEROME H. GOLDBERG
------------------------- May 16, 1995
Jerome H. Goldberg
/s/ LAWRENCE J. KELLEHER
------------------------- May 16, 1995
Lawrence J. Kelleher
/s/ J. THOMAS PETILLO
------------------------- May 16, 1995
J. Thomas Petillo
/s/ C. O. WOODY
------------------------- May 16, 1995
C. O. Woody
<PAGE>
EXHIBIT INDEX
Exhibit
-------
1(a) -- Form of Dealer Managers Agreement. June 30, 1994, File
No. 1-3545).
4(j) -- Form of Indenture relating to the Debt Securities of FPL.
4(k) -- Form of Excerpts from the Unanimous Consent of the Finance
Committee of the Board of Directors in lieu of Meeting,
establishing Debentures.
4(l) -- Form of Officer's Certificate establishing Debentures.
4(m) -- Form of Debentures.
4(n) -- Form of Letter of Transmittal.
5(a) -- Opinion of Steel Hector & Davis.
5(b) -- Opinion of Reid & Priest LLP.
8 -- Tax Opinion of Reid & Priest LLP.
23(a) -- Consent of Deloitte & Touche LLP.
23(b) -- Consents of Reid & Priest LLP (contained in opinions
filed as Exhibits 5(b) and 8 hereto).
23(c) -- Consent of Steel Hector & Davis (contained in opinion
filed as Exhibit 5(a) hereto).
24 -- Power of Attorney (included on the signature page of
this registration statement).
25 -- Form T-1 of The Chase Manhattan Bank (National Association).
99(a) -- Form of Exchange Agent Agreement.
99(b) -- Form of letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
99(c) -- Form of letter from Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees to their clients.
99(d) -- Form of Notice of Guaranteed Delivery.
99(e) -- Form of letter to Shareholders of $2.00 Preferred Stock.
99(f) -- Form of Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
Exhibit 1(a)
DEALER MANAGERS AGREEMENT
May ___, 1995
__________
__________
__________
__________
__________
__________
Ladies and Gentlemen:
Florida Power & Light Company, a Florida corporation ("FPL"), proposes to
offer its _____% Quarterly Income Debt Securities (Subordinated Deferrable
Interest Debentures, Due ____ (the "Debentures") in exchange for its
5,000,000 outstanding shares of $2.00 No Par Preferred Stock, Series A
(Involuntary Liquidation Value $25 Per Share) (the "Preferred Stock"), on
the terms and subject to the conditions set forth in the Prospectus
attached hereto as Exhibit A (the "Prospectus") and set forth in the Letter
of Transmittal and related correspondence attached hereto as Exhibit B
(collectively, the "Letter of Transmittal"), both of which we have caused
to be drafted and furnished to you in connection with such offer (the
"Exchange Offer"). The Prospectus and the Letter of Transmittal are
collectively hereinafter referred to as the "Offer Materials."
The Debentures will be a series of debt securities issued by FPL under its
Indenture, dated as of June ___, 1995, to The Chase Manhattan Bank
(National Association), as Trustee, as it will be supplemented by a
resolution of the Finance Committee of the Board of Directors of FPL and an
Officer's certificate, each relating to the Debentures, in substantially
the form heretofore delivered to the Dealer Managers (as hereinafter
defined). The Indenture as it will be so supplemented is hereinafter
called the "Indenture."
FPL has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-4, including a prospectus
("registration statement No. 33-__________"), for the registration of
$125,000,000 aggregate principal amount of its Debentures under the
Securities Act of 1933, as amended (the "Securities Act"), which
registration statement has been declared effective by the Commission.
References herein to the term "Registration Statement" as of any given date
shall mean registration statement No. 33-__________, as amended or
supplemented to such date, including all documents incorporated by
reference therein as of such date pursuant to Item 11 of Form S-4
("Incorporated Documents"). References herein to the term "Prospectus" as
of any given date shall mean the prospectus forming a part of registration
statement No. 33-__________, as amended or supplemented as of such date,
including all Incorporated Documents. References herein to the term
"Effective Date" shall be deemed to refer to the time and date that
registration statement No. 33-__________ was declared effective by the
Commission. Prior to the termination of the Exchange Offer, FPL will not
file any amendment to the Registration Statement or any amendment or
supplement to the Prospectus without prior notice to the Dealer Managers
and to Winthrop, Stimson, Putnam & Roberts, who are acting as counsel on
behalf of the Dealer Managers ("Counsel for the Dealer Managers"), or any
such amendment or supplement to which the Dealer Managers shall reasonably
object in writing, or which shall be unsatisfactory to Counsel for the
Dealer Managers.
FPL has also prepared and filed, or will also prepare and file, with the
Commission under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and the applicable instructions, rules and regulations of
the Commission thereunder, a Statement on Schedule 13E-4 with respect to
the Exchange Offer (as such Statement may be amended from time to time, and
including exhibits thereto and any documents incorporated by reference
therein, the "Schedule 13E-4").
FPL has furnished, or will promptly furnish, to each of you a signed copy
of each of the Registration Statement and the Schedule 13E-4, all
amendments or supplements thereto and any other filings with the Commission
in connection with the Exchange Offer, whether filed before or after the
Registration Statement became effective, and copies of all exhibits and
documents filed therewith.
1. Appointment of Dealer Managers.
------------------------------
Subject to the terms and conditions hereof, FPL hereby appoints __________
and __________ (the "Dealer Managers," or each, a "Dealer Manager") to act
on its behalf as the dealer managers, and __________ and __________ agree
to act as the dealer managers, in connection with the Exchange Offer.
2. Duties as Dealer Managers.
-------------------------
__________ and __________ will each perform those services as dealer
manager, in connection with the Exchange Offer, as are customarily
performed by investment banking concerns in connection with offers of like
nature, including, but not limited to, soliciting tenders of Preferred
Stock pursuant to the Exchange Offer and communicating generally, and
responding to requests for information and material, regarding the Exchange
Offer and the Debentures with brokers, dealers, commercial banks and trust
companies and other persons including the holders of the Preferred Stock.
In addition, each Dealer Manager shall act as an independent contractor and
will not be deemed to act as agent of FPL, and FPL shall not be deemed to
act as the agent of either Dealer Manager. In addition, in so soliciting,
no broker, dealer, commercial bank or trust company shall be deemed to act
as the agent of either Dealer Manager or as agent of FPL, and neither the
Dealer Managers nor FPL shall be deemed to act as the agent of any broker,
dealer, commercial bank or trust company. FPL will cooperate with the
Dealer Managers and use its reasonable best efforts to provide the Dealer
Managers with such information as the Dealer Managers shall reasonably
request in connection with effectuating their duties hereunder.
3. Offer Materials.
---------------
(a)The Offer Materials will be prepared and approved by FPL. FPL will
cause all copies of the Offer Materials, and all amendments and supplements
thereto, filed with the Commission to be distributed to holders of record
of shares of Preferred Stock as may be required by the Securities Act and
the Exchange Act and the respective instructions, rules and regulations of
the Commission thereunder. Each Dealer Manager is authorized to use the
Offer Materials in connection with the solicitation of holders of Preferred
Stock, and FPL agrees to furnish each Dealer Manager with as many copies of
the Offer Materials, and all amendments or supplements thereto, as such
Dealer Manager may reasonably request for use by such Dealer Manager in
connection with the Exchange Offer during the period of the Exchange
Offer.
Each Dealer Manager agrees not to provide the holders of Preferred Stock or
any other person any written information regarding the Exchange Offer other
than the information contained in the Offer Materials. FPL will not file,
use or publish any material in connection with the Exchange Offer, or refer
to either Dealer Manager in any such material, without prior consultation
with that Dealer Manager.
(b)If, prior to the Closing Date (as defined below), any event occurs
as a result of which the Prospectus or the Schedule 13E-4 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 or amend the
Schedule 13E-4 to comply with the Exchange Act, then FPL will notify the
Dealer Managers promptly to suspend solicitation of exchanges of Preferred
Stock and each Dealer Manager shall suspend its solicitations of exchanges
of Preferred Stock; and if FPL shall decide to amend or supplement the
Registration Statement, the Prospectus or the Schedule 13E-4, it will
promptly advise the Dealer Managers 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 Dealer Managers'
receipt of such amendment or supplement and advice from FPL that
solicitations may be resumed, the Dealer Managers will resume solicitations
of exchanges of Preferred Stock.
(c)FPL will promptly advise the Dealer Managers of the issuance of any
stop order under the Securities Act with respect to the Registration
Statement or the institution of any proceedings therefor of which FPL shall
have received notice prior to the Closing Date. FPL will use its best
efforts to prevent the issuance of any such stop order and to secure the
prompt removal thereof, if issued.
4. Representations, Warranties and Covenants of FPL.
------------------------------------------------
FPL represents and warrants and agrees that:
(a)The Registration Statement and the Prospectus at the Effective Date
fully complied, and the Prospectus, the Registration Statement, and the
Indenture at the date the Exchange Offer is consummated (the "Closing
Date") and the Schedule 13E-4, at the date it is filed with the Commission
and at the Closing Date, will fully comply, in all material respects with
the applicable provisions of the Securities Act, the Exchange Act and the
Trust Indenture Act of 1939, as amended (the "1939 Act"), and, in each
case, the applicable instructions, rules and regulations of the Commission
with respect thereto; at the Effective Date, the Registration Statement and
the Offer Materials taken together as a whole, did not, and at the date it
is filed with the Commission, the Schedule 13E-4 will not, and at the
Closing Date, the Offer Materials taken together as a whole, 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; 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 Exchange Act and the applicable
instructions, rules and regulations of the Commission thereunder; provided,
that the foregoing representations and warranties in this subsection
(a) 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
either the Dealer Managers for use in connection with the preparation of
the Registration Statement or the Prospectus, or to any statements in or
omissions from the Statement of Eligibility and Qualification on Form T-1,
or amendments thereto, of the Trustee under the Indenture.
(b)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
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.
(c)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.
(d) 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 Debentures when issued
and delivered as provided in the Prospectus will constitute legal, valid
and binding obligations of FPL in accordance with their terms, except as
limited by bankruptcy, insolvency or other laws affecting creditors' rights
generally and limitations on the availability of equitable remedies.
(e)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 Indenture will not result in a breach of any of
the terms or provisions of, or constitute a default under, FPL's Charter,
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.
(f)This Agreement has been duly authorized, executed and delivered by
FPL.
(g)FPL will furnish such proper information as may be lawfully required
and otherwise cooperate in qualifying the Debentures for offer and sale
under the blue sky laws of such jurisdictions as, in FPL's judgment, are
reasonably necessary in connection with the Exchange Offer, provided that
FPL shall not qualify as a foreign corporation or dealer in securities, or
file any consents to service of process under the laws of any jurisdiction.
(h)FPL will make generally available to its security holders, as soon
as practicable, an earnings statement (which need not be audited, unless
required so to be under Section 11(a) of the Securities Act) of FPL in
reasonable detail covering the 12 months beginning not later than the first
day of the quarter next succeeding the month in which occurred the
effective date of the Registration Statement as defined in Rule 158 under
the Securities Act.
(i)FPL will use its best efforts promptly to do and perform all things
reasonably required to effect the listing of the Debentures on the New York
Stock Exchange (the "NYSE").
(j)FPL shall inform the Dealer Managers in advance of its intention to
offer for sale, to sell or to enter into any agreement to sell or otherwise
dispose of, any Debentures, any preferred stock of FPL, any other
securities of FPL which are substantially similar to Debentures or any
securities convertible into or exchangeable for such Debentures, preferred
stock or substantially similar securities between the date of this
Agreement and the Closing Date. If the Dealer Managers together promptly
advise FPL that, in their reasonable judgment, such offer, sale or other
disposition would adversely affect the ability of the Dealer Managers to
fulfill their obligations under this Agreement, then FPL will refrain from
making such offer, sale or other disposition prior to the Closing Date.
5. Dealer Managers' Covenants.
--------------------------
Each Dealer Manager hereby covenants that all actions taken by it in
connection with the Exchange Offer will comply in all material respects
with all applicable laws, regulations and rules of the United States
including, without limitation, the Securities Act, the Exchange Act
(including, without limitation, Rules 10b-6 and 13e-4 thereunder), and the
applicable rules and regulations of the registered national securities
exchanges of which the respective Dealer Manager is a member and of the
National Association of Securities Dealers, Inc.
6. Conditions to Obligations.
-------------------------
Each Dealer Manager's obligation to act as a dealer manager with respect to
the Exchange Offer shall at all times be subject to the conditions that:
(a)All of FPL's representations and warranties contained herein are,
and at all times during the Exchange Offer shall be, true and correct in
all material respects (except as to representations and warranties made as
of a particular date which need be true in all material respects only as of
such date), it being understood that a Dealer Manager's performance
hereunder at a time when it knew or should have known that any such
statement is or may be untrue or incorrect in a material respect shall be
without prejudice to that Dealer Manager's right subsequently to cease so
to perform by reason of such untruth or incorrectness.
(b)FPL, at all times during the period of the Exchange Offer, shall
have performed all of its material obligations hereunder and with respect
to the Exchange Offer required to have been performed.
(c)No stop order or restraining order shall have been issued and no
litigation shall have been commenced or threatened with respect to the
Exchange Offer or with respect to any of the transactions in connection
with or contemplated by, the Exchange Offer, the Offer Materials, or this
Agreement before any agency, court or other governmental body of any
jurisdiction which the Dealer Manager, in good faith after consultation
with FPL, believes renders it inadvisable for the Dealer Manager to
continue to act hereunder.
(d)On the date hereof, the Dealer Managers shall have received (i)
from each of Steel, Hector & Davis and Reid & Priest LLP, both counsel to
FPL, an opinion, and (ii) a certificate of FPL signed by the President, any
Vice President, or the Treasurer of FPL, in each case to the effect that,
at the Effective Date, the Registration Statement and the Offer Materials
taken together as a whole, did not, and at the date it is filed with the
Commission, the Schedule 13E-4 will not, and at the Closing Date, the Offer
Materials taken together as a whole, 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;
provided that the foregoing opinions and representations in this subsection
(d) 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
either the Dealer Managers for use in connection with the preparation of
the Registration Statement or the Prospectus, or to any statements in or
omissions from the Statement of Eligibility and Qualification on Form T-1,
or amendments thereto, of the Trustee under the Indenture.
(e)On the Closing Date, the Dealer Managers shall have received
(i) from each of Steel Hector & Davis and Reid & Priest LLP, both counsel
for FPL, a favorable opinion, which opinion will not pass on compliance
with the provisions of the blue sky laws of any jurisdictions, in form and
substance reasonably satisfactory to Counsel for the Dealer Managers (ii)
from Counsel for the Dealer Managers, an opinion in form and substance
reasonably satisfactory to the Dealer Managers, and (iii) from Deloitte
& Touche LLP, a letter substantially in the form attached hereto as
Exhibit C.
(f)On the Closing Date, the Dealer Managers shall have received a
certificate of FPL signed by the President, any Vice President, or the
Treasurer of FPL reasonably satisfactory to the Dealer Managers to the
effect that (i) there has been no material adverse change in the business,
properties or financial condition of FPL, except as reflected or
contemplated in the Registration Statement and Prospectus, (ii) the other
representations and warranties on the part of FPL contained in this
Agreement are true and correct (with the same force and effect as though
expressly made on and at and as of the Closing Date), (iii) FPL has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied under this Agreement on or prior to the Closing Date
and (iv) no stop order suspending the effectiveness of the Registration
Statement (as so amended or supplemented) has been issued and no
proceedings for the purpose have been initiated or threatened by the
Commission.
7. Indemnification.
---------------
(a)FPL agrees to indemnify and hold harmless each Dealer Manager, and
each person who controls it within the meaning of Section 15 of the
Securities Act, from and against any and all losses, claims, damages or
liabilities, joint or several, to which it or any of them may become
subject under the Securities Act, the Exchange Act or any other statute or
common law, and to reimburse any such 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 (i) any untrue statement or alleged untrue
statement of a material fact contained in the preliminary prospectus (if
used prior to the Effective Date), including the Incorporated Documents, or
in the Registration Statement, Prospectus, the Schedule 13E-4 or other
Offer Materials or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however,
-------- -------
that the indemnity agreement contained in this subsection (i) 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 to FPL in writing by or on behalf of any Dealer Manager for use
in connection with the preparation of the Registration Statement, the
Prospectus, the Schedule 13E-4 or other Offer Materials or any amendment or
supplement to either thereof, or arising out of, or based upon, statements
in or omissions from Exhibit 25 to the Registration Statement which shall
constitute the Statement of Eligibility and Qualification on Form T-1 of
the Trustee under the Indenture; (ii) any breach by FPL of any
representations or warranty or failure to comply with any of the agreements
on the part of FPL set forth herein, (iii) a withdrawal, rescission,
termination or modification of, or a failure to make or consummate, the
Exchange Offer, or (iv) your acting as Dealer Managers in connection with
the Exchange Offer or that arises in connection with your engagement under
this Agreement. Notwithstanding the foregoing, the indemnity agreement
with respect to each Dealer Manager contained in clauses (iii) and (iv) of
the immediately preceding sentence shall not apply to any losses, claims,
damages, liabilities, expenses or actions that are finally judicially
determined (or in a settlement tantamount thereto) to have resulted from
such Dealer Manager's (or any person controlling that Dealer Manager) bad
faith or negligence. The indemnity agreement contained in this paragraph
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Dealer Manager or any such
controlling person, and shall survive the consummation of the Exchange
Offer. Each Dealer Manager agrees promptly to notify FPL of the
commencement of any litigation or proceedings against it or any of them or
any such controlling person in connection with the Exchange Offer.
(b)Each Dealer Manager agrees to indemnify and hold harmless FPL, its
officers and directors, and each controlling person 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 it or any of
them may become subject under the Securities Act, the Exchange Act or any
other statute or common law, and to reimburse any such 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 the
Registration Statement, Prospectus, the Schedule 13E-4 or other Offer
Materials, 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 to FPL in writing by or
on behalf of such Dealer Manager 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 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
directors or any such controlling person, and shall survive the
consummation of the Exchange Offer. FPL agrees promptly to notify the
Dealer Managers of the commencement of any litigation or proceedings
against FPL or any of its officers or directors or any such controlling
person in connection with the Exchange Offer.
(c)Each of FPL and each of the Dealer Managers 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 therein, 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 the indemnifying party and counsel for the
indemnifying party shall have reasonably concluded that there may be a
conflict of interest involved in the representation by such counsel of both
the indemnifying party and the indemnified party, the indemnified party or
parties shall have the right to select separate counsel, satisfactory to
the indemnifying party, 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).
8. Termination.
-----------
(a)FPL may terminate the engagement of either or both Dealer Managers
hereunder at any time, which termination shall be effective immediately
upon receipt by such Dealer Manager of written notice thereof.
(b)This Agreement may be terminated by the Dealer Managers by
delivering written notice thereof to FPL at any time prior to the Closing
Date if (i) after the date hereof and at or prior to the Closing Date there
shall have occurred any general suspension of trading in securities on the
NYSE or there shall have been established by the NYSE or by the 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 this agreement or other
national or international calamity or crisis, the effect of any such event
specified in (i) or (ii) above on the financial markets of the United
States shall be such as to make it impracticable for the Dealer Managers to
solicit tenders of the Preferred Stock. This agreement may also be
terminated at any time prior to the Closing Date if in the judgment of the
Dealer Managers the subject matter of any amendment or supplement to the
Registration Statement, Prospectus or Schedule 13E-4 prepared and furnished
by FPL reflects a material adverse change in the business, properties or
financial condition of FPL which renders it inadvisable to proceed with the
solicitation of tenders of the Preferred Stock.
(c)Any termination of this Agreement pursuant to this Section 8 shall
be without liability of any party to any other party except as otherwise
provided in Section 9(c) or Section 7.
9. Compensation.
------------
(a)Dealer Manager Fees. For their services hereunder, FPL agrees to
pay to __________ a fee of __________, and to __________ a fee of
__________. Such fees shall be payable upon consummation of the Exchange
Offer.
(b)Soliciting Dealer Fees. FPL agrees to pay to each Soliciting Dealer
(as such term is defined in the Letter of Transmittal) a solicitation fee
of $_____ per $25 principal amount of Debentures issued in respect of
shares of Preferred Stock solicited by such Soliciting Dealer and accepted
in the Exchange Offer in accordance with the terms and procedures set forth
in the Letter of Transmittal. Such solicitation fees shall be payable upon
consummation of the Exchange Offer by delivery by FPL of the aggregate
amount of such fees to __________, who will, upon receipt thereof, promptly
disburse the solicitation fees to the Soliciting Dealers in accordance with
records provided to __________ by FPL.
(c)Whether or not any shares of Preferred Stock are tendered pursuant
to the Exchange Offer, FPL covenants and agrees to pay or cause to be paid
the following: (i) the fees for the registration of the Debentures under
the Securities Act and all fees and expenses payable in connection with
securing any required review by the National Association of Securities
Dealers, Inc. (exclusive of fees and disbursements of Counsel for the
Dealer Managers incurred with respect thereto, which shall be paid in
accordance with clause (iii) below), (ii) the fees, disbursements and
expenses of FPL's counsel and accountants in connection with the
preparation and filing of the Registration Statement, any preliminary
prospectus relating to the Debentures, the Prospectus, the Schedule 13E-4
and the other Offer Materials and any amendments or supplements to any of
the foregoing, and the cost of furnishing copies thereof to the Dealer
Managers, the Exchange Agent, the Information Agent and the holders of the
shares of Preferred Stock, (iii) reasonable expenses of the Dealer Managers
and the fees and disbursements of Counsel for the Dealer Managers, which
such fees and disbursements shall in no case exceed $__________ (exclusive
of fees and disbursements of Counsel for the Dealer Managers incurred in
connection with the preparation of any Blue Sky survey in respect of the
Debentures, which fees and disbursements to be paid by FPL shall not exceed
$5,000), (iv) the fees and expenses of the Exchange Agent and any agent of
the Exchange Agent and the fees and disbursements of counsel for the
Exchange Agent and any Information Agent appointed in connection with the
Exchange Offer, (v) the listing fees incident to the listing of the
Debentures on the NYSE, (vi) all costs and expenses incurred in the
preparation, printing, mailing and publishing of the Prospectus, the
Registration Statement, the Schedule 13E-4, the other Offer Materials, this
Agreement and all other documents relating to the Exchange Offer and any
amendments or supplements thereto, (vii) all fees payable to securities
dealers (including the Dealer Managers), commercial banks, trust companies
and nominees as reimbursement of their customary mailing and handling
expenses incurred in forwarding the Offering Materials to their customers,
all fees and expenses of any forwarding agent, all advertising charges and
any applicable transfer taxes payable by FPL in connection with the
Exchange Offer, (viii) the preparation, printing and distribution of this
Agreement, the Indenture, the Debentures and any Blue Sky survey in respect
thereof, (ix) the delivery of the Debentures to be issued pursuant to the
Exchange Offer, and (x) the fees and expenses of the Trustee.
10. Counterparts.
------------
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original.
11. Survival of Certain Provisions.
------------------------------
The representations, warranties and indemnification contained in this
Agreement shall continue in effect after completion of the Exchange Offer
and shall be effective even if FPL withdraws, abandons, or terminates the
Exchange Offer.
12. Miscellaneous.
-------------
This Agreement shall be deemed made in New York, and shall be governed by
the laws of the State of New York without regard to the rules relating to
conflicts of laws thereunder. This Agreement has been and is made solely
for the benefit of FPL, the Dealer Managers and the other indemnified
parties referred to in Section 7, and their respective successors, heirs,
personal representatives and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement.
13. Notice.
------
All communications hereunder shall be in writing or by telegram and, if to
the Dealer Managers, shall be mailed or delivered to them at their
respective addresses set forth on the first page of this Agreement, or if
to FPL, shall be mailed or delivered to it at 700 Universe Boulevard, Juno
Beach, Florida 33408, Attention: Treasurer.
Very truly yours,
Florida Power & Light Company
Accepted and agreed to as of the date of
this letter:
__________ __________
EXHIBIT 4 (j)
__________________________________________
FLORIDA POWER & LIGHT COMPANY
TO
The Chase Manhattan Bank
(NATIONAL ASSOCIATION), Trustee
_________
Indenture
(For Unsecured Subordinated Debt Securities)
Dated as of June ___, 1995
__________________________________________
TABLE OF CONTENTS
RECITAL OF THE COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Definitions and Other Provisions of General Application . . . . . . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . 1
Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Officer . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company Request or Company Order . . . . . . . . . . . . . . . . 2
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . 3
Discount Security. . . . . . . . . . . . . . . . . . . . . . . . 3
Dollar or $. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Eligible Obligations . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . 3
Governmental Authority . . . . . . . . . . . . . . . . . . . . . 3
Government Obligations . . . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date. . . . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officer's Certificate. . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . 4
Outstanding. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Periodic Offering. . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . 5
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Date. . . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . 6
Regular Record Date. . . . . . . . . . . . . . . . . . . . . . . 6
Required Currency. . . . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer. . . . . . . . . . . . . . . . . . . . . . . 6
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Security Register and Security Registrar . . . . . . . . . . . . 6
Senior Indebtedness. . . . . . . . . . . . . . . . . . . . . . . 6
Special Record Date. . . . . . . . . . . . . . . . . . . . . . . 6
Stated Interest Rate . . . . . . . . . . . . . . . . . . . . . . 6
Stated Maturity. . . . . . . . . . . . . . . . . . . . . . . . . 6
Tranche. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . . 7
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
United States. . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 102. Compliance Certificates and Opinions. . . . . . . . . . 7
SECTION 103. Form of Documents Delivered to Trustee. . . . . . . . . 8
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . 8
SECTION 105. Notices, Etc. to Trustee and Company. . . . . . . . . . 10
SECTION 106. Notice to Holders of Securities; Waiver . . . . . . . . 11
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . . . 11
SECTION 108. Effect of Headings and Table of Contents. . . . . . . . 11
SECTION 109. Successors and Assigns. . . . . . . . . . . . . . . . . 11
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . . 11
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . 11
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . 12
SECTION 113. Legal Holidays. . . . . . . . . . . . . . . . . . . . . 12
ARTICLE TWO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Security Forms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . 12
SECTION 202. Form of Trustee's Certificate of Authentication . . . . 13
ARTICLE THREE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
The Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 301. Amount Unlimited; Issuable in Series. . . . . . . . . . 13
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . 16
SECTION 303. Execution, Authentication, Delivery and Dating. . . . . 16
SECTION 304. Temporary Securities. . . . . . . . . . . . . . . . . . 19
SECTION 305. Registration, Registration of Transfer and Exchange . . 19
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. . . . 20
SECTION 307. Payment of Interest; Interest Rights Preserved. . . . . 21
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . 22
SECTION 309. Cancellation by Security Registrar. . . . . . . . . . . 22
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . 23
SECTION 311. Payment to Be in Proper Currency. . . . . . . . . . . . 23
SECTION 312. Extension of Interest Payment . . . . . . . . . . . . . 23
ARTICLE FOUR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Redemption of Securities. . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 401. Applicability of Article. . . . . . . . . . . . . . . . 24
SECTION 402. Election to Redeem; Notice to Trustee . . . . . . . . . 24
SECTION 403. Selection of Securities to Be Redeemed. . . . . . . . . 24
SECTION 404. Notice of Redemption. . . . . . . . . . . . . . . . . . 25
SECTION 405. Securities Payable on Redemption Date . . . . . . . . . 26
SECTION 406. Securities Redeemed in Part . . . . . . . . . . . . . . 26
ARTICLE FIVE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 501. Applicability of Article. . . . . . . . . . . . . . . . 26
SECTION 502. Satisfaction of Sinking Fund Payments with Securities . 27
SECTION 503. Redemption of Securities for Sinking Fund . . . . . . . 27
ARTICLE SIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 601. Payment of Principal, Premium and Interest. . . . . . . 28
SECTION 602. Maintenance of Office or Agency . . . . . . . . . . . . 28
SECTION 603. Money for Securities Payments to Be Held in Trust . . . 28
SECTION 604. Corporate Existence . . . . . . . . . . . . . . . . . . 30
SECTION 605. Maintenance of Properties . . . . . . . . . . . . . . . 30
SECTION 606. Annual Officer's Certificate as to Compliance.. . . . . 30
SECTION 607. Waiver of Certain Covenants . . . . . . . . . . . . . . 30
ARTICLE SEVEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Satisfaction and Discharge. . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 701. Satisfaction and Discharge of Securities. . . . . . . . 31
SECTION 702. Satisfaction and Discharge of Indenture . . . . . . . . 33
SECTION 703. Application of Trust Money. . . . . . . . . . . . . . . 33
ARTICLE EIGHT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Events of Default; Remedies . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 801. Events of Default . . . . . . . . . . . . . . . . . . . 34
SECTION 802. Acceleration of Maturity; Rescission and Annulment. . . 35
SECTION 803. Collection of Indebtedness and Suits for Enforcement by
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 804. Trustee May File Proofs of Claim. . . . . . . . . . . . 37
SECTION 805. Trustee May Enforce Claims Without Possession of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 806. Application of Money Collected. . . . . . . . . . . . . 37
SECTION 807. Limitation on Suits . . . . . . . . . . . . . . . . . . 38
SECTION 808. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 809. Restoration of Rights and Remedies. . . . . . . . . . . 39
SECTION 810. Rights and Remedies Cumulative. . . . . . . . . . . . . 39
SECTION 811. Delay or Omission Not Waiver. . . . . . . . . . . . . . 39
SECTION 812. Control by Holders of Securities. . . . . . . . . . . . 39
SECTION 813. Waiver of Past Defaults . . . . . . . . . . . . . . . . 40
SECTION 814. Undertaking for Costs . . . . . . . . . . . . . . . . . 40
SECTION 815. Waiver of Stay or Extension Laws. . . . . . . . . . . . 40
ARTICLE NINE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
The Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 901. Certain Duties and Responsibilities . . . . . . . . . . 41
SECTION 902. Notice of Defaults. . . . . . . . . . . . . . . . . . . 42
SECTION 903. Certain Rights of Trustee . . . . . . . . . . . . . . . 42
SECTION 904. Not Responsible for Recitals or Issuance of Securities. 43
SECTION 905. May Hold Securities . . . . . . . . . . . . . . . . . . 43
SECTION 906. Money Held in Trust . . . . . . . . . . . . . . . . . . 43
SECTION 907. Compensation and Reimbursement. . . . . . . . . . . . . 44
SECTION 908. Disqualification; Conflicting Interests.. . . . . . . . 44
SECTION 909. Corporate Trustee Required; Eligibility . . . . . . . . 44
SECTION 910. Resignation and Removal; Appointment of Successor . . . 45
SECTION 911. Acceptance of Appointment by Successor. . . . . . . . . 47
SECTION 912. Merger, Conversion, Consolidation or Succession to Busi-
ness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 913. Preferential Collection of Claims Against Company . . . 48
SECTION 914. Co-trustees and Separate Trustees.. . . . . . . . . . . 48
SECTION 915. Appointment of Authenticating Agent . . . . . . . . . . 49
ARTICLE TEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Holders' Lists and Reports by Trustee and Company . . . . . . . . . . . 51
SECTION 1001. Lists of Holders . . . . . . . . . . . . . . . . . . . 51
SECTION 1002. Reports by Trustee and Company . . . . . . . . . . . . 51
ARTICLE ELEVEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Consolidation, Merger, Conveyance or Other Transfer . . . . . . . . . . 52
SECTION 1101. Company May Consolidate, Etc., Only on Certain Terms . 52
SECTION 1102. Successor Corporation Substituted. . . . . . . . . . . 52
ARTICLE TWELVE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 1201. Supplemental Indentures Without Consent of Holders . . 53
SECTION 1202. Supplemental Indentures With Consent of Holders. . . . 54
SECTION 1203. Execution of Supplemental Indentures . . . . . . . . . 56
SECTION 1204. Effect of Supplemental Indentures. . . . . . . . . . . 56
SECTION 1205. Conformity With Trust Indenture Act. . . . . . . . . . 56
SECTION 1206. Reference in Securities to Supplemental Indentures . . 56
SECTION 1207. Modification Without Supplemental Indenture. . . . . . 56
ARTICLE THIRTEEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Meetings of Holders; Action Without Meeting . . . . . . . . . . . . . . 57
SECTION 1301. Purposes for Which Meetings May Be Called. . . . . . . 57
SECTION 1302. Call, Notice and Place of Meetings . . . . . . . . . . 57
SECTION 1303. Persons Entitled to Vote at Meetings . . . . . . . . . 57
SECTION 1304. Quorum; Action . . . . . . . . . . . . . . . . . . . . 58
SECTION 1305. Attendance at Meetings; Determination of Voting Rights;
Conduct and
Adjournment of Meetings. . . . . . . . . . . . . . . . . . 59
SECTION 1306. Counting Votes and Recording Action of Meetings. . . . 59
SECTION 1307. Action Without Meeting . . . . . . . . . . . . . . . . 60
ARTICLE FOURTEEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Immunity of Incorporators, Stockholders, Officers and Directors . . . . 60
SECTION 1401. Liability Solely Corporate . . . . . . . . . . . . . . 60
ARTICLE FIFTEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Subordination of Securities . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1501. Securities Subordinate to Senior Indebtedness. . . . . 61
SECTION 1502. Payment Over of Proceeds of Securities . . . . . . . . 61
SECTION 1503. Disputes with Holders of Certain Senior Indebtedness . 62
SECTION 1504. Subrogation. . . . . . . . . . . . . . . . . . . . . . 63
SECTION 1505. Obligation of the Company Unconditional. . . . . . . . 63
SECTION 1506. Priority of Senior Indebtedness Upon Maturity. . . . . 63
SECTION 1507. Trustee as Holder of Senior Indebtedness . . . . . . . 64
SECTION 1508. Notice to Trustee to Effectuate Subordination. . . . . 64
SECTION 1509. Modification, Extension, etc. of Senior Indebtedness . 64
SECTION 1510. Trustee Has No Fiduciary Duty to Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1511. Paying Agents Other Than the Trustee . . . . . . . . . 65
SECTION 1512. Rights of Holders of Senior Indebtedness Not Impaired. 65
SECTION 1513. Effect of Subordination Provisions; Termination. . . . 65
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66
Signatures and Seals. . . . . . . . . . . . . . . . . . . . . . . . . . .66
Acknowledgements. . . . . . . . . . . . . . . . . . . . . . . . . . . . .67
FLORIDA POWER & LIGHT COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
an Indenture, dated as of June ___, 1995
Trust Indenture Act Section Indenture Section
Section 310 (a)(1). . . . . . . . . . . . . . . . . . . . 909
(a)(2). . . . . . . . . . . . . . . . . . . 909
(a)(3). . . . . . . . . . . . . . . . . . . 914(b)
(a)(4). . . . . . . . . . . . . . . . . . .Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . 908
. . . . . . . . . . . . . . . . . . . . . . 910
Section 311 (a) . . . . . . . . . . . . . . . . . . . . . 913
(b) . . . . . . . . . . . . . . . . . . . . 913
(c) . . . . . . . . . . . . . . . . . . . . 913
Section 312 (a) . . . . . . . . . . . . . . . . . . . . . 1001
(b) . . . . . . . . . . . . . . . . . . . . 1001
(c) . . . . . . . . . . . . . . . . . . . . 1001
Section 313 (a) . . . . . . . . . . . . . . . . . . . . . 1002
(b) . . . . . . . . . . . . . . . . . . . . 1002
(c) . . . . . . . . . . . . . . . . . . . . 1002
(d) . . . . . . . . . . . . . . . . . . . . 1002
Section 314 (a) . . . . . . . . . . . . . . . . . . . . . 1002
(a)(4). . . . . . . . . . . . . . . . . . . 606
(b) . . . . . . . . . . . . . . . . . . . .Not Applicable
(c)(1). . . . . . . . . . . . . . . . . . . 102
(c)(2). . . . . . . . . . . . . . . . . . . 102
(c)(3). . . . . . . . . . . . . . . . . . .Not Applicable
(d) . . . . . . . . . . . . . . . . . . . .Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . 102
Section 315 (a) . . . . . . . . . . . . . . . . . . . . . 901
. . . . . . . . . . . . . . . . . . . . . . 903
(b) . . . . . . . . . . . . . . . . . . . . 902
(c) . . . . . . . . . . . . . . . . . . . . 901
(d) . . . . . . . . . . . . . . . . . . . . 901
(e) . . . . . . . . . . . . . . . . . . . . 814
Section 316 (a) . . . . . . . . . . . . . . . . . . . . . 812
. . . . . . . . . . . . . . . . . . . . . . 813
(a)(1)(A) . . . . . . . . . . . . . . . . . 802
. . . . . . . . . . . . . . . . . . . . . . 812
(a)(1)(B) . . . . . . . . . . . . . . . . . 813
(a)(2). . . . . . . . . . . . . . . . . . .Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . 808
Section 317 (a)(1). . . . . . . . . . . . . . . . . . . . 803
(a)(2). . . . . . . . . . . . . . . . . . . 804
(b) . . . . . . . . . . . . . . . . . . . . 603
Section 318 (a) . . . . . . . . . . . . . . . . . . . . . 107
INDENTURE, dated as of June ___, 1995 between FLORIDA POWER &
LIGHT COMPANY, a corporation duly organized and existing under the laws
of the State of Florida (herein called the "Company"), having its principal
office at 700 Universe Boulevard, Juno Beach, Florida 33408, and The Chase
Manhattan Bank (National Association), a corporation organized and
existing under the laws of the United States of America, having its
principal corporate trust office at 4 Chase MetroTech Center, Brooklyn, New
York 11245, as Trustee (herein called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of its
unsecured subordinated debentures, notes or other evidences of indebtedness
(herein called the "Securities"), to be issued in one or more series as
contemplated herein; and all acts necessary to make this Indenture a valid
agreement of the Company have been performed.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires, capitalized
terms used herein shall have the meanings assigned to them in Article One
of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the
Securities or of series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(b) all terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by refer-
ence therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles in the United States, and, except
as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States at the
date of such computation or, at the election of the Company from
time to time, at the date of the execution and delivery of this
Indenture; provided, however, that in determining generally
accepted accounting principles applicable to the Company, the
Company shall, to the extent required, conform to any order, rule
or regulation of any administrative agency, regulatory authority
or other governmental body having jurisdiction over the Company;
and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Nine, are defined
in that Article.
"Act", when used with respect to any Holder of a Security,
has the meaning specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person,
directly or through one or more intermediaries, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person (other than the
Company or an Affiliate of the Company) authorized by the Trustee to act on
behalf of the Trustee to authenticate one or more series of Securities.
"Authorized Officer" means the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant Treasurer or
any other duly authorized officer of the Company.
"Board of Directors" means either the board of directors of
the Company or any committee thereof duly authorized to act in respect of
matters relating to this Indenture.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to a Place of Payment
or any other particular location specified in the Securities or this
Indenture, means any day, other than a Saturday or Sunday, which is not a
day on which banking institutions or trust companies in such Place of
Payment or other location are generally authorized or required by law,
regulation or executive order to remain closed, except as may be otherwise
specified as contemplated by Section 301.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities Exchange Act
of 1934, as amended, or, if at any time after the date of execution and
delivery of this Indenture such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body,
if any, performing such duties at such time.
"Company" means the Person named as the "Company" in the
first paragraph of this Indenture until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by an Authorized Officer and de-
livered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be
principally administered, which office at the date of execution and
delivery of this Indenture is located at 4 Chase MetroTech Center,
Brooklyn, New York 11245.
"corporation" means a corporation, association, company,
joint stock company or business trust.
"Defaulted Interest" has the meaning specified in Section
307.
"Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
802. "interest" with respect to a Discount Security means interest, if
any, borne by such Security at a Stated Interest Rate.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal
tender for the payment of public and private debts.
"Eligible Obligations" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a currency
other than Dollars or in a composite currency, such other
obligations or instruments as shall be specified with respect to
such Securities, as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 801.
"Governmental Authority" means the government of the United
States or of any State or Territory thereof or of the District of Columbia
or of any county, municipality or other political subdivision of any
thereof, or any department, agency, authority or other instrumentality of
any of the foregoing.
"Government Obligations" means:
(a) direct obligations of, or obligations the principal of
and interest on which are unconditionally guaranteed by, the
United States entitled to the benefit of the full faith and
credit thereof; and
(b) certificates, depositary receipts or other instruments
which evidence a direct ownership interest in obligations
described in clause (a) above or in any specific interest or
principal payments due in respect thereof; provided, however,
that the custodian of such obligations or specific interest or
principal payments shall be a bank or trust company (which may
include the Trustee or any Paying Agent) subject to Federal or
state supervision or examination with a combined capital and
surplus of at least $50,000,000; and provided, further, that
except as may be otherwise required by law, such custodian shall
be obligated to pay to the holders of such certificates,
depositary receipts or other instruments the full amount received
by such custodian in respect of such obligations or specific
payments and shall not be permitted to make any deduction
therefrom.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indenture" means this instrument as originally executed and
delivered and as it may from time to time be supplemented or amended by one
or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of particular
series of Securities established as contemplated by Section 301.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as provided in such Security or in this Indenture,
whether at the Stated Maturity, by declaration of acceleration, upon call
for redemption or otherwise.
"Officer's Certificate" means a certificate signed by an
Authorized Officer and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company, or other counsel acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities deemed to have been paid in accordance with
Section 701; and
(c) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it and the
Company that such Securities are held by a bona fide purchaser or
purchasers in whose hands such Securities are valid obligations
of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Securities Outstanding under this
Indenture, or the Outstanding Securities of any series or Tranche, have
given any request, demand, authorization, direction, notice, consent or
waiver hereunder or whether or not a quorum is present at a meeting of
Holders of Securities,
(x) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company
or of such other obligor (unless the Company, such Affiliate
or such obligor owns all Securities Outstanding under this
Indenture, or all Outstanding Securities of each such series
and each such Tranche, as the case may be, determined
without regard to this clause (x)) shall be disregarded and
deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice,
consent or waiver or upon any such determination as to the
presence of a quorum, only Securities which the Trustee
knows to be so owned shall be so disregarded; provided,
however, that Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other
obligor;
(y) the principal amount of a Discount Security that
shall be deemed to be Outstanding for such purposes shall be
the amount of the principal thereof that would be due and
payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof pursuant
to Section 802; and
(z) the principal amount of any Security which is
denominated in a currency other than Dollars or in a
composite currency that shall be deemed to be Outstanding
for such purposes shall be the amount of Dollars which could
have been purchased by the principal amount (or, in the case
of a Discount Security, the Dollar equivalent on the date
determined as set forth below of the amount determined as
provided in (y) above) of such currency or composite
currency evidenced by such Security, in each such case
certified to the Trustee in an Officer's Certificate, based
(i) on the average of the mean of the buying and selling
spot rates quoted by three banks which are members of the
New York Clearing House Association selected by the Company
in effect at 11:00 A.M. (New York time) in The City of New
York on the fifth Business Day preceding any such
determination or (ii) if on such fifth Business Day it shall
not be possible or practicable to obtain such quotations
from such three banks, on such other quotations or
alternative methods of determination which shall be as
consistent as practicable with the method set forth in (i)
above;
provided, further, that, in the case of any Security the principal of which
is payable from time to time without presentment or surrender, the
principal amount of such Security that shall be deemed to be Outstanding at
any time for all purposes of this Indenture shall be the original principal
amount thereof less the aggregate amount of principal thereof theretofore
paid.
"Paying Agent" means any Person, including the Company,
authorized by the Company to pay the principal of and premium, if any, or
interest, if any, on any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a series
from time to time any or all of the specific terms of which Securities,
including without limitation the rate or rates of interest, if any,
thereon, the Stated Maturity or Maturities thereof and the redemption pro-
visions, if any, with respect thereto, are to be determined by the Company
or its agents upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, trust or unincorporated organization or any Governmental Authority
thereof.
"Place of Payment", when used with respect to the Securities of
any series, or Tranche thereof, means the place or places, specified as
contemplated by Section 301, at which, subject to Section 602, principal of
and premium, if any, and interest, if any, on the Securities of such series
or Tranche are payable.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed (to the extent lawful) to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"Required Currency" has the meaning specified in Section 311.
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means all obligations (other than non-
recourse obligations and the indebtedness issued under this Indenture) of,
or guaranteed or assumed by, the Company for borrowed money, including both
senior and subordinated indebtedness for borrowed money (other than the
Securities), or for the payment of money relating to any lease which is
capitalized on the consolidated balance sheet of the Company and its
subsidiaries in accordance with generally accepted accounting principles as
in effect from time to time, or evidenced by bonds, debentures, notes or
other similar instruments, and in each case, amendments, renewals,
extensions, modifications and refundings of any such indebtedness or
obligations, whether existing as of the date of this Indenture or
subsequently incurred by the Company.
"Special Record Date" for the payment of any Defaulted Interest
on the Securities of any series means a date fixed by the Trustee pursuant
to Section 307.
"Stated Interest Rate" means a rate (whether fixed or variable)
at which an obligation by its terms is stated to bear simple interest. Any
calculation or other determination to be made under this Indenture by
reference to the Stated Interest Rate on a Security shall be made without
regard to the effective interest cost to the Company of such Security and
without regard to the Stated Interest Rate on, or the effective cost to the
Company of, any other indebtedness the Company's obligations in respect of
which are evidenced or secured in whole or in part by such Security.
"Stated Maturity", when used with respect to any obligation or
any installment of principal thereof or interest thereon, means the date on
which the principal of such obligation or such installment of principal or
interest is stated to be due and payable (without regard to any provisions
for redemption, prepayment, acceleration, purchase or extension).
"Tranche" means a group of Securities which (a) are of the same
series and (b) have identical terms except as to principal amount and/or
date of issuance.
"Trust Indenture Act" means, as of any time, the Trust Indenture
Act of 1939, or any successor statute, as in effect at such time.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become
such with respect to one or more series of Securities pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder, and if at any
time there is more than one such Person, "Trustee" as used with respect to
the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"United States" means the United States of America, its
Territories, its possessions and other areas subject to its political
jurisdiction.
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture,
upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall, if
requested by the Trustee, furnish to the Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall include:
(a) a statement that each Person signing such certificate
or opinion has read such covenant or condition and the
definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such Person,
such Person has made such examination or investigation as is
necessary to enable such Person to express an informed opinion as
to whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion
of, only one such Person, or that they be so certified or covered by only
one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which such
Officer's Certificate or opinion are based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless
such counsel knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Whenever, subsequent to the receipt by the Trustee of any
Board Resolution, Officer's Certificate, Opinion of Counsel or other
document or instrument, a clerical, typographical or other inadvertent or
unintentional error or omission shall be discovered therein, a new document
or instrument may be substituted therefor in corrected form with the same
force and effect as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution and/or delivery
thereof, such substitute document or instrument shall be deemed to have
been executed and/or delivered as of the date or dates required with
respect to the document or instrument for which it is substituted.
Anything in this Indenture to the contrary notwithstanding, if any such
corrective document or instrument indicates that action has been taken by
or at the request of the Company which could not have been taken had the
original document or instrument not contained such error or omission, the
action so taken shall not be invalidated or otherwise rendered ineffective
but shall be and remain in full force and effect, except to the extent that
such action was a result of willful misconduct or bad faith. Without
limiting the generality of the foregoing, any Securities issued under the
authority of such defective document or instrument shall nevertheless be
the valid obligations of the Company entitled to the benefits of this
Indenture equally and ratably with all other Outstanding Securities, except
as aforesaid.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, election, waiver or other action provided by this
Indenture to be made, given or taken by Holders may be embodied
in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent
duly appointed in writing or, alternatively, may be embodied in
and evidenced by the record of Holders voting in favor thereof,
either in person or by proxies duly appointed in writing, at any
meeting of Holders duly called and held in accordance with the
provisions of Article Thirteen, or a combination of such
instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments or record or both are delivered to the
Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and
the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such
instrument or instruments and so voting at any such meeting.
Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture
and (subject to Section 901) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
The record of any meeting of Holders shall be proved in the
manner provided in Section 1306.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or
writing acknowledged to him the execution thereof or may be
proved in any other manner which the Trustee and the Company deem
sufficient. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his
authority.
(c) The principal amount (except as otherwise contemplated
in clause (y) of the proviso to the definition of Outstanding)
and serial numbers of Securities held by any Person, and the date
of holding the same, shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall bind
every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made
upon such Security.
(e) Until such time as written instruments shall have been
delivered to the Trustee with respect to the requisite percentage
of principal amount of Securities for the action contemplated by
such instruments, any such instrument executed and delivered by
or on behalf of a Holder may be revoked with respect to any or
all of such Securities by written notice by such Holder or any
subsequent Holder, proven in the manner in which such instrument
was proven.
(f) Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may, and
shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any action taken by such Act of
Holders. If the Company shall so determine, new Securities of
any series, or any Tranche thereof, so modified as to conform, in
the opinion of the Trustee and the Company, to such action may be
prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities
of such series or Tranche.
(g) If the Company shall solicit from Holders any request,
demand, authorization, direction, notice, consent, waiver or
other Act, the Company may, at its option, by Board Resolution,
fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have
no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on
the record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of the
Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding
Securities shall be computed as of the record date.
SECTION 105. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, election, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or
filed with, the Trustee by any Holder or by the Company, or the Company by
the Trustee or by any Holder, shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and
delivered personally to an officer or other responsible employee of the
addressee, or transmitted by facsimile transmission, telex or other direct
written electronic means to such telephone number or other electronic
communications address as the parties hereto shall from time to time
designate, or transmitted by registered mail, charges prepaid, to the
applicable address set opposite such party's name below or to such other
address as either party hereto may from time to time designate:
If to the Trustee, to:
The Chase Manhattan Bank (National Association)
Institutional Trust Group
4 Chase MetroTech Center
Brooklyn, New York 11245
Attention: Institutional Trust Group
Telephone: (718) 242-7287
Telecopy: (718) 242-5885
If to the Company, to:
Florida Power & Light Company
700 Universe Boulevard
Juno Beach, Florida 33408
Attention: Dilek Samil, Treasurer
Telephone: (407) 694-6324
Telecopy: (407) 692-6299
Any communication contemplated herein shall be deemed to
have been made, given, furnished and filed if personally delivered, on the
date of delivery, if transmitted by facsimile transmission, telex or other
direct written electronic means, on the date of transmission, and if
transmitted by registered mail, on the date of receipt.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given, and shall be deemed given, to Holders if in writing and
mailed, first-class postage prepaid, to each Holder affected by such event,
at the address of such Holder as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give such
notice to Holders by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for
every purpose hereunder. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders.
Any notice required by this Indenture may be waived in
writing by the Person entitled to receive such notice, either before or
after the event otherwise to be specified therein, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required or deemed to be
included in this Indenture by, or is otherwise governed by, any of the
provisions of the Trust Indenture Act, such other provision shall control;
and if any provision hereof otherwise conflicts with the Trust Indenture
Act, the Trust Indenture Act shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings in this Indenture and the
Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Com-
pany and Trustee shall bind their respective successors and assigns,
whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto, their
successors hereunder, the Holders, and so long as the notice described in
Section 1513 hereof has not been given, the holders of Senior Indebtedness,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York, except to
the extent that the law of any other jurisdiction shall be mandatorily
applicable.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day at any Place
of Payment, then (notwithstanding any other provision of this Indenture or
of the Securities other than a provision in Securities of any series, or
any Tranche thereof, or in the Board Resolution or Officer's Certificate
which establishes the terms of the Securities of such series or Tranche,
which specifically states that such provision shall apply in lieu of this
Section) payment of interest or principal and premium, if any, need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment, except that if such
Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day in each case with the same
force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, and, if such payment is made or duly
provided for on such Business Day, no interest shall accrue on the amount
so payable for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be, to such Business
Day.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The definitive Securities of each series shall be in
substantially the form or forms thereof established in the indenture
supplemental hereto establishing such series or in a Board Resolution
establishing such series, or in an Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, in each case with such
appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form or forms of Securities of any series are
established in a Board Resolution or in an Officer's Certificate pursuant
to a Board Resolution, such Board Resolution and Officer's Certificate, if
any, shall be delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the authentication and
delivery of such Securities.
Unless otherwise specified as contemplated by Section 301,
the Securities of each series shall be issuable in registered form without
coupons. The definitive Securities shall be produced in such manner as
shall be determined by the officers executing such Securities, as evidenced
by their execution thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
The Chase Manhattan Bank
(National Association) as Trustee
By: _______________________________
Authorized Officer
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. Prior to the
authentication and delivery of Securities of any series there shall be
established by specification in a supplemental indenture or in a Board
Resolution, or in an Officer's Certificate pursuant to a supplemental
indenture or a Board Resolution:
(a) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of all
other series);
(b) any limit upon the aggregate principal amount of the
Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series
pursuant to Section 304, 305, 306, 406 or 1206 and, except for
any Securities which, pursuant to Section 303, are deemed never
to have been authenticated and delivered hereunder);
(c) the Person or Persons (without specific identification)
to whom interest on Securities of such series, or any Tranche
thereof, shall be payable on any Interest Payment Date, if other
than the Persons in whose names such Securities (or one or more
Predecessor Securities) are registered at the close of business
on the Regular Record Date for such interest;
(d) the date or dates on which the principal of the
Securities of such series or any Tranche thereof, is payable or
any formulary or other method or other means by which such date
or dates shall be determined, by reference or otherwise (without
regard to any provisions for redemption, prepayment,
acceleration, purchase or extension);
(e) the rate or rates at which the Securities of such
series, or any Tranche thereof, shall bear interest, if any
(including the rate or rates at which overdue principal shall
bear interest, if different from the rate or rates at which such
Securities shall bear interest prior to Maturity, and, if
applicable, the rate or rates at which overdue premium or
interest shall bear interest, if any), or any formulary or other
method or other means by which such rate or rates shall be
determined, by reference or otherwise; the date or dates from
which such interest shall accrue; the Interest Payment Dates on
which such interest shall be payable and the Regular Record Date,
if any, for the interest payable on such Securities on any
Interest Payment Date; the right of the Company, if any, to
extend the interest payment periods and the duration of any such
extension as contemplated by Section 312; and the basis of
computation of interest, if other than as provided in Section
310;
(f) the place or places at which or methods by which (1)
the principal of and premium, if any, and interest, if any, on
Securities of such series, or any Tranche thereof, shall be
payable, (2) registration of transfer of Securities of such
series, or any Tranche thereof, may be effected, (3) exchanges of
Securities of such series, or any Tranche thereof, may be
effected and (4) notices and demands to or upon the Company in
respect of the Securities of such series, or any Tranche thereof,
and this Indenture may be served; the Security Registrar for such
series; and if such is the case, that the principal of such
Securities shall be payable without presentment or surrender
thereof;
(g) the period or periods within which, or the date or
dates on which, the price or prices at which and the terms and
conditions upon which the Securities of such series, or any
Tranche thereof, may be redeemed, in whole or in part, at the
option of the Company and any restrictions on such redemptions,
including but not limited to a restriction on a partial
redemption by the Company of the Securities of any series, or any
Tranche thereof, resulting in delisting of such Securities from
any national exchange;
(h) the obligation or obligations, if any, of the Company
to redeem or purchase the Securities of such series, or any
Tranche thereof, pursuant to any sinking fund or other mandatory
redemption provisions or at the option of a Holder thereof and
the period or periods within which or the date or dates on which,
the price or prices at which and the terms and conditions upon
which such Securities shall be redeemed or purchased, in whole or
in part, pursuant to such obligation, and applicable exceptions
to the requirements of Section 404 in the case of mandatory
redemption or redemption at the option of the Holder;
(i) the denominations in which Securities of such series,
or any Tranche thereof, shall be issuable if other than
denominations of $1,000 and any integral multiple thereof;
(j) the currency or currencies, including composite
currencies, in which payment of the principal of and premium, if
any, and interest, if any, on the Securities of such series, or
any Tranche thereof, shall be payable (if other than in Dollars);
(k) if the principal of or premium, if any, or interest, if
any, on the Securities of such series, or any Tranche thereof,
are to be payable, at the election of the Company or a Holder
thereof, in a coin or currency other than that in which the
Securities are stated to be payable, the period or periods within
which and the terms and conditions upon which, such election may
be made;
(l) if the principal of or premium, if any, or interest on
the Securities of such series, or any Tranche thereof, are to be
payable, or are to be payable at the election of the Company or a
Holder thereof, in securities or other property, the type and
amount of such securities or other property, or the formulary or
other method or other means by which such amount shall be
determined, and the period or periods within which, and the terms
and conditions upon which, any such election may be made;
(m) if the amount payable in respect of principal of or
premium, if any, or interest, if any, on the Securities of such
series, or any Tranche thereof, may be determined with reference
to an index or other fact or event ascertainable outside this
Indenture, the manner in which such amounts shall be determined
to the extent not established pursuant to clause (e) of this
paragraph;
(n) if other than the principal amount thereof, the portion
of the principal amount of Securities of such series, or any
Tranche thereof, which shall be payable upon declaration of ac-
celeration of the Maturity thereof pursuant to Section 802;
(o) any Events of Default, in addition to those specified
in Section 801, with respect to the Securities of such series,
and any covenants of the Company for the benefit of the Holders
of the Securities of such series, or any Tranche thereof, in
addition to those set forth in Article Six;
(p) the terms, if any, pursuant to which the Securities of
such series, or any Tranche thereof, may be converted into or
exchanged for shares of capital stock or other securities of the
Company or any other Person;
(q) the obligations or instruments, if any, which shall be
considered to be Eligible Obligations in respect of the
Securities of such series, or any Tranche thereof, denominated in
a currency other than Dollars or in a composite currency, and any
additional or alternative provisions for the reinstatement of the
Company's indebtedness in respect of such Securities after the
satisfaction and discharge thereof as provided in Section 701;
(r) if the Securities of such series, or any Tranche
thereof, are to be issued in global form, (i) any limitations on
the rights of the Holder or Holders of such Securities to
transfer or exchange the same or to obtain the registration of
transfer thereof, (ii) any limitations on the rights of the
Holder or Holders thereof to obtain certificates therefor in
definitive form in lieu of temporary form and (iii) any and all
other matters incidental to such Securities;
(s) if the Securities of such series, or any Tranche
thereof, are to be issuable as bearer securities, any and all
matters incidental thereto which are not specifically addressed
in a supplemental indenture as contemplated by clause (g) of
Section 1201;
(t) to the extent not established pursuant to clause (r) of
this paragraph, any limitations on the rights of the Holders of
the Securities of such Series, or any Tranche thereof, to
transfer or exchange such Securities or to obtain the
registration of transfer thereof; and if a service charge will be
made for the registration of transfer or exchange of Securities
of such series, or any Tranche thereof, the amount or terms
thereof;
(u) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities of
such series, or any Tranche thereof; and
(v) any other terms of the Securities of such series, or
any Tranche thereof, not inconsistent with the provisions of this
Indenture.
The Securities of each series, or any Tranche thereof, shall
be subordinated in the right of payment to Senior Indebtedness as provided
in Article Fifteen.
With respect to Securities of a series subject to a Periodic
Offering, the indenture supplemental hereto or the Board Resolution which
establishes such series, or the Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, as the case may be, may provide
general terms or parameters for Securities of such series and provide
either that the specific terms of Securities of such series, or any Tranche
thereof, shall be specified in a Company Order or that such terms shall be
determined by the Company or its agents in accordance with procedures
specified in a Company Order as contemplated by the clause (b) of Section
303.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, or any Tranche thereof, the
Securities of each series shall be issuable in denominations of $1,000 and
any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, or any Tranche thereof, the
Securities shall be executed on behalf of the Company by an Authorized
Officer and may have the corporate seal of the Company affixed thereto or
reproduced thereon attested by any other Authorized Officer. The signature
of any or all of these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at the time of execution Authorized Officers of the
Company shall bind the Company, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication
and delivery of such Securities or did not hold such offices at the date of
such Securities.
The Trustee shall authenticate and deliver Securities of a
series, for original issue, at one time or from time to time in accordance
with the Company Order referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing the form or
forms and terms of such series, as provided in Sections 201 and
301;
(b) a Company Order requesting the authentication and
delivery of such Securities and, to the extent that the terms of
such Securities shall not have been established in an indenture
supplemental hereto or in a Board Resolution, or in an Officer's
Certificate pursuant to a supplemental indenture or Board
Resolution, all as contemplated by Sections 201 and 301, either
(i) establishing such terms or (ii) in the case of Securities of
a series subject to a Periodic Offering, specifying procedures,
acceptable to the Trustee, by which such terms are to be
established (which procedures may provide, to the extent
acceptable to the Trustee, for authentication and delivery
pursuant to oral or electronic instructions from the Company or
any agent or agents thereof, which oral instructions are to be
promptly confirmed electronically or in writing), in either case
in accordance with the instrument or instruments delivered
pursuant to clause (a) above;
(c) the Securities of such series, executed on behalf of
the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) that the form or forms of such Securities have
been duly authorized by the Company and have been
established in conformity with the provisions of this
Indenture;
(ii) that the terms of such Securities have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture; and
(iii) that such Securities, when authenticated and
delivered by the Trustee and issued and delivered by the
Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will have been duly
issued under this Indenture and will constitute valid and
legally binding obligations of the Company, entitled to the
benefits provided by this Indenture, and enforceable in
accordance with their terms, subject, as to enforcement, to
laws relating to or affecting generally the enforcement of
creditors' rights, including, without limitation, bankruptcy
and insolvency laws and to general principles of equity
(regardless of whether such enforceability is considered in
a proceeding in equity or at law);
provided, however, that, with respect to Securities of a series subject to
a Periodic Offering, the Trustee shall be entitled to receive such Opinion
of Counsel only once at or prior to the time of the first authentication of
such Securities (provided that such Opinion of Counsel addresses the
authentication and delivery of all Securities of such series) and that in
lieu of the opinions described in clauses (ii) and (iii) above Counsel may
opine that:
(x) when the terms of such Securities shall have been
established pursuant to a Company Order or Orders or
pursuant to such procedures (acceptable to the Trustee) as
may be specified from time to time by a Company Order or
Orders, all as contemplated by and in accordance with the
instrument or instruments delivered pursuant to clause (a)
above, such terms will have been duly authorized by the
Company and will have been established in conformity with
the provisions of this Indenture; and
(y) such Securities, when authenticated and delivered
by the Trustee in accordance with this Indenture and the
Company Order or Orders or specified procedures referred to
in paragraph (x) above and issued and delivered by the
Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will have been duly
issued under this Indenture and will constitute valid and
legally binding obligations of the Company, entitled to the
benefits provided by the Indenture, and enforceable in
accordance with their terms, subject, as to enforcement, to
laws relating to or affecting generally the enforcement of
creditors' rights, including, without limitation, bankruptcy
and insolvency laws and to general principles of equity
(regardless of whether such enforceability is considered in
a proceeding in equity or at law).
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the authorization by the
Company of any of such Securities, the form and terms thereof and the
legality, validity, binding effect and enforceability thereof, upon the
Opinion of Counsel and other documents delivered pursuant to Sections 201
and 301 and this Section, as applicable, at or prior to the time of the
first authentication of Securities of such series unless and until such
opinion or other documents have been superseded or revoked or expire by
their terms. In connection with the authentication and delivery of
Securities of a series subject to a Periodic Offering, the Trustee shall be
entitled to assume that the Company's instructions to authenticate and
deliver such Securities do not violate any rules, regulations or orders of
any Governmental Authority having jurisdiction over the Company.
If the form or terms of the Securities of any series have
been established by or pursuant to a Board Resolution or an Officer's
Certificate as permitted by Sections 201 or 301, the Trustee shall not be
required to authenticate such Securities if the issuance of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Unless otherwise specified as contemplated by Section 301
with respect to any series of Securities, or any Tranche thereof, each
Security shall be dated the date of its authentication.
Unless otherwise specified as contemplated by Section 301
with respect to any series of Securities, or any Tranche thereof, no
Security shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or its agent by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder to the Company, or any Person acting
on its behalf, but shall never have been issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation
as provided in Section 309 together with a written statement (which need
not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits hereof.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, or any Tranche thereof, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, with such
appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities; provided, however, that temporary Securities
need not recite specific redemption, sinking fund, conversion or exchange
provisions.
Unless otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche thereof, after
the preparation of definitive Securities of such series or Tranche, the
temporary Securities of such series or Tranche shall be exchangeable,
without charge to the Holder thereof, for definitive Securities of such
series or Tranche upon surrender of such temporary Securities at the office
or agency of the Company maintained pursuant to Section 602 in a Place of
Payment for such Securities. Upon such surrender of temporary Securities,
the Company shall, except as aforesaid, execute and the Trustee shall
authenticate and deliver in exchange therefor definitive Securities of the
same series and Tranche, of authorized denominations and of like tenor and
aggregate principal amount.
Until exchanged in full as hereinabove provided, temporary
Securities shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities of the same series and Tranche and
of like tenor authenticated and delivered hereunder.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept in each office designated
pursuant to Section 602, with respect to the Securities of each series or
any Tranche thereof, a register (all registers kept in accordance with this
Section being collectively referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Com-
pany shall provide for the registration of Securities of such series or
Tranche and the registration of transfer thereof. The Company shall
designate one Person to maintain the Security Register for the Securities
of each series on a consolidated basis, and such Person is referred to
herein, with respect to such series, as the "Security Registrar." Anything
herein to the contrary notwithstanding, the Company may designate one or
more of its offices as an office in which a register with respect to the
Securities of one or more series, or any Tranche or Tranches thereof, shall
be maintained, and the Company may designate itself the Security Registrar
with respect to one or more of such series. The Security Register shall be
open for inspection by the Trustee and the Company at all reasonable times.
Except as otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche thereof, upon
surrender for registration of transfer of any Security of such series or
Tranche at the office or agency of the Company maintained pursuant to
Section 602 in a Place of Payment for such series or Tranche, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Securities of
the same series and Tranche, of authorized denominations and of like tenor
and aggregate principal amount.
Except as otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche thereof, any
Security of such series or Tranche may be exchanged at the option of the
Holder, for one or more new Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate principal amount,
upon surrender of the Securities to be exchanged at any such office or
agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities delivered upon any registration of transfer
or exchange of Securities shall be valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Trustee
or the Security Registrar) be duly endorsed or shall be accompanied by a
written instrument of transfer in form satisfactory to the Company, the
Trustee or the Security Registrar, as the case may be, duly executed by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section 301
with respect to Securities of any series, or any Tranche thereof, no
service charge shall be made for any registration of transfer or exchange
of Securities, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 304, 406 or 1206 not involving any
transfer.
The Company shall not be required to execute or to provide
for the registration of transfer of or the exchange of (a) Securities of
any series, or any Tranche thereof, during a period of 15 days immediately
preceding the date notice is to be given identifying the serial numbers of
the Securities of such series or Tranche called for redemption or (b) any
Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in ex-
change therefor a new Security of the same series, and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee
(a) evidence to their satisfaction of the ownership of and the destruction,
loss or theft of any Security and (b) such security or indemnity as may be
reasonably required by them to save each of them and any agent of either of
them harmless, then, in the absence of notice to the Company or the Trustee
that such Security is held by a Person purporting to be the owner of such
Security, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series and Tranche, and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new
Security, pay such Security.
Upon the issuance of any new Security under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other reasonable expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute
an original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Security shall be at any time enforceable
by anyone other than the Holder of such new Security, and any such new
Security shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of such series duly
issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche thereof,
interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Subject to Section 312, any interest on any Security of any
series which is payable, but is not punctually paid or duly provided for,
on any Interest Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the related Regular Record
Date by virtue of having been such Holder, and such Defaulted Interest may
be paid by the Company, at its election in each case, as provided in clause
(a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are
registered at the close of business on a date (herein called a
"Special Record Date") for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security of such
series and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in
this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company,
shall promptly cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities
of such series at the address of such Holder as it appears in the
Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business
on such Special Record Date.
(b) The Company may make payment of any Defaulted Interest
on the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Security shall
carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
SECTION 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Security is registered as
the absolute owner of such Security for the purpose of receiving payment of
principal of and premium, if any, and (subject to Sections 305 and 307)
interest, if any, on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 309. Cancellation by Security Registrar.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any Person
other than the Security Registrar, be delivered to the Security Registrar
and, if not theretofore canceled, shall be promptly canceled by the
Security Registrar. The Company may at any time deliver to the Security
Registrar for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever or which the Company shall not have issued and sold, and all
Securities so delivered shall be promptly canceled by the Security
Registrar. No Securities shall be authenticated in lieu of or in exchange
for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Security Registrar shall be disposed of in accordance with a Company Order
delivered to the Security Registrar and the Trustee, and the Security
Registrar shall promptly deliver a certificate of disposition to the
Trustee and the Company unless, by a Company Order, similarly delivered,
the Company shall direct that canceled Securities be returned to it. The
Security Registrar shall promptly deliver evidence of any cancellation of a
Security in accordance with this Section 309 to the Trustee and the
Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, or any Tranche thereof, interest on the
Securities of each series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months and on the basis of the actual number of
days elapsed within any month in relation to the deemed 30 days of such
month.
SECTION 311. Payment to Be in Proper Currency.
In the case of the Securities of any series, or any Tranche
thereof, denominated in any currency other than Dollars or in a composite
currency (the "Required Currency"), except as otherwise specified with
respect to such Securities as contemplated by Section 301, the obligation
of the Company to make any payment of the principal thereof, or the premium
or interest thereon, shall not be discharged or satisfied by any tender by
the Company, or recovery by the Trustee, in any currency other than the
Required Currency, except to the extent that such tender or recovery shall
result in the Trustee timely holding the full amount of the Required Cur-
rency then due and payable. If any such tender or recovery is in a
currency other than the Required Currency, the Trustee may take such
actions as it considers appropriate to exchange such currency for the
Required Currency. The costs and risks of any such exchange, including
without limitation the risks of delay and exchange rate fluctuation, shall
be borne by the Company, the Company shall remain fully liable for any
shortfall or delinquency in the full amount of Required Currency then due
and payable, and in no circumstances shall the Trustee be liable therefor
except in the case of its negligence or willful misconduct.
SECTION 312. Extension of Interest Payment.
The Company shall have the right at any time, so long as the
Company is not in default in the payment of interest on the Securities of
any series hereunder, to extend interest payment periods on all Securities
of one or more series, or Tranches thereof, if so specified as contemplated
by Section 301 with respect to such Securities and upon such terms as may
be specified as contemplated by Section 301 with respect to such
Securities.
ARTICLE FOUR
Redemption of Securities
SECTION 401. Applicability of Article.
Securities of any series, or any Tranche thereof, which are
redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by
Section 301 for Securities of such series or Tranche) in accordance with
this Article.
SECTION 402. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall
be evidenced by a Board Resolution or an Officer's Certificate. The
Company shall, at least 45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee in writing of such Redemption Date and of the principal
amount of such Securities to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture or (b) pursuant to an election of the Company which is subject to
a condition specified in the terms of such Securities, the Company shall
furnish the Trustee with an Officer's Certificate evidencing compliance
with such restriction or condition.
SECTION 403. Selection of Securities to Be Redeemed.
If less than all the Securities of any series, or any
Tranche thereof, are to be redeemed, the particular Securities to be
redeemed shall be selected by the Security Registrar from the Outstanding
Securities of such series or Tranche not previously called for redemption,
by such method as shall be provided for any particular series, or, in the
absence of any such provision, by such method of random selection as the
Security Registrar shall deem fair and appropriate and which may, in any
case, provide for the selection for redemption of portions (equal to the
minimum authorized denomination for Securities of such series or Tranche or
any integral multiple thereof) of the principal amount of Securities of
such series or Tranche of a denomination larger than the minimum authorized
denomination for Securities of such series or Tranche; provided, however,
that if, as indicated in an Officer's Certificate, the Company shall have
offered to purchase all or any principal amount of the Securities then
Outstanding of any series, or any Tranche thereof, and less than all of
such Securities as to which such offer was made shall have been tendered to
the Company for such purchase, the Security Registrar, if so directed by
Company Order, shall select for redemption all or any principal amount of
such Securities which have not been so tendered.
The Security Registrar shall promptly notify the Company and
the Trustee in writing of the Securities selected for redemption and, in
the case of any Securities selected to be redeemed in part, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only
in part, to the portion of the principal amount of such Securities which
has been or is to be redeemed.
SECTION 404. Notice of Redemption.
Notice of redemption shall be given in the manner provided
in Section 106 to the Holders of the Securities to be redeemed not less
than 30 nor more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Securities of any series or
Tranche are to be redeemed, the identification of the particular
Securities to be redeemed and the portion of the principal amount
of any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption Price,
together with accrued interest, if any, to the Redemption Date,
will become due and payable upon each such Security to be
redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date,
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued
interest, if any, unless it shall have been specified as
contemplated by Section 301 with respect to such Securities that
such surrender shall not be required,
(f) that the redemption is for a sinking or other fund, if
such is the case, and
(g) such other matters as the Company shall deem desirable
or appropriate.
Unless otherwise specified with respect to any Securities in
accordance with Section 301, with respect to any notice of redemption of
Securities at the election of the Company, unless, upon the giving of such
notice, such Securities shall be deemed to have been paid in accordance
with Section 701, such notice may state that such redemption shall be
conditional upon the receipt by the Paying Agent or Agents for such
Securities, on or prior to the date fixed for such redemption, of money
sufficient to pay the principal of and premium, if any, and interest, if
any, on such Securities and that if such money shall not have been so
received such notice shall be of no force or effect and the Company shall
not be required to redeem such Securities. In the event that such notice
of redemption contains such a condition and such money is not so received,
the redemption shall not be made and within a reasonable time thereafter
notice shall be given, in the manner in which the notice of redemption was
given, that such money was not so received and such redemption was not
required to be made, and the Paying Agent or Agents for the Securities
otherwise to have been redeemed shall promptly return to the Holders
thereof any of such Securities which had been surrendered for payment upon
such redemption.
Notice of redemption of Securities to be redeemed at the
election of the Company, and any notice of non-satisfaction of a condition
for redemption as aforesaid, shall be given by the Company or, at the
Company's request, by the Security Registrar in the name and at the expense
of the Company. Notice of mandatory redemption of Securities shall be
given by the Security Registrar in the name and at the expense of the
Company.
SECTION 405. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the
Securities or portions thereof so to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price therein specified, and
from and after such date (unless, in the case of an unconditional notice of
redemption, the Company shall default in the payment of the Redemption
Price and accrued interest, if any) such Securities or portions thereof, if
interest-bearing, shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with such notice, such Security or
portion thereof shall be paid by the Company at the Redemption Price,
together with accrued interest, if any, to the Redemption Date; provided,
however, that no such surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to such Security; and
provided, further, that except as otherwise specified as contemplated by
Section 301 with respect to such Security, any installment of interest on
any Security the Stated Maturity of which installment is on or prior to the
Redemption Date shall be payable to the Holder of such Security, or one or
more Predecessor Securities, registered as such at the close of business on
the related Regular Record Date according to the terms of such Security and
subject to the provisions of Section 307.
SECTION 406. Securities Redeemed in Part.
Upon the surrender of any Security which is to be redeemed
only in part at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing), the
Company shall execute, and the Trustee shall authenticate and deliver to
the Holder of such Security, without service charge, a new Security or
Securities of the same series and Tranche, of any authorized denomination
requested by such Holder and of like tenor and in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal
of the Security so surrendered.
ARTICLE FIVE
Sinking Funds
SECTION 501. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of the Securities of any series, or any
Tranche thereof, except as otherwise specified as contemplated by Section
301 for Securities of such series or Tranche.
The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series, or any Tranche thereof, is herein
referred to as a "mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms of Securities of
any series, or any Tranche thereof, is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, or any Tranche thereof, the cash amount of any sinking fund payment
may be subject to reduction as provided in Section 502. Each sinking fund
payment shall be applied to the redemption of Securities of the series or
Tranche in respect of which it was made as provided for by the terms of
such Securities.
SECTION 502. Satisfaction of Sinking Fund Payments with Securities.
The Company (a) may deliver to the Trustee Outstanding
Securities (other than any previously called for redemption) of a series or
Tranche in respect of which a mandatory sinking fund payment is to be made
and (b) may apply as a credit Securities of such series or Tranche which
have been (i) redeemed either at the election of the Company pursuant to
the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities or
(ii) repurchased by the Company in the open market, by tender offer or
otherwise, in each case in satisfaction of all or any part of such
mandatory sinking fund payment; provided, however, that no Securities shall
be applied in satisfaction of a mandatory sinking fund payment if such
Securities shall have been previously so applied. Securities so applied
shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
SECTION 503. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment
date for the Securities of any series, or any Tranche thereof, the Company
shall deliver to the Trustee an Officer's Certificate specifying:
(a) the amount of the next succeeding mandatory sinking
fund payment for such series or Tranche;
(b) the amount, if any, of the optional sinking fund
payment to be made together with such mandatory sinking fund
payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by the payment of cash;
(e) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by delivering and crediting
Securities of such series or Tranche pursuant to Section 502 and
stating the basis for such credit and that such Securities have
not previously been so credited, and the Company shall also
deliver to the Trustee any Securities to be so delivered. If the
Company shall not deliver such Officer's Certificate, the next
succeeding sinking fund payment for such series or Tranche shall
be made entirely in cash in the amount of the mandatory sinking
fund payment. Not less than 40 days before each such sinking
fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner
specified in Section 403 and cause notice of the redemption
thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 404. Such notice
having been duly given, the redemption of such Securities shall
be made upon the terms and in the manner stated in Sections 405
and 406.
ARTICLE SIX
Covenants
SECTION 601. Payment of Principal, Premium and Interest.
The Company shall pay the principal of and premium, if any,
and interest, if any, on the Securities of each series in accordance with
the terms of such Securities and this Indenture.
SECTION 602. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for the
Securities of each series, or any Tranche thereof, an office or agency
where payment of such Securities shall be made, where the registration of
transfer or exchange of such Securities may be effected and where notices
and demands to or upon the Company in respect of such Securities and this
Indenture may be served. The Company shall give prompt written notice to
the Trustee of the location, and any change in the location, of each such
office or agency and prompt notice to the Holders of any such change in the
manner specified in Section 106. If at any time the Company shall fail to
maintain any such required office or agency in respect of Securities of any
series, or any Tranche thereof, or shall fail to furnish the Trustee with
the address thereof, payment of such Securities shall be made, registration
of transfer or exchange thereof may be effected and notices and demands in
respect thereof may be served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent for all such
purposes in any such event.
The Company may also from time to time designate one or more
other offices or agencies with respect to the Securities of one or more
series, or any Tranche thereof, for any or all of the foregoing purposes
and may from time to time rescind such designations; provided, however,
that, unless otherwise specified as contemplated by Section 301 with
respect to the Securities of such series or Tranche, no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency for such purposes in each Place of Payment for
such Securities in accordance with the requirements set forth above. The
Company shall give prompt written notice to the Trustee, and prompt notice
to the Holders in the manner specified in Section 106, of any such
designation or rescission and of any change in the location of any such
other office or agency.
Anything herein to the contrary notwithstanding, any office
or agency required by this Section may be maintained at an office of the
Company, in which event the Company shall perform all functions to be
performed at such office or agency.
SECTION 603. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to the Securities of any series, or any Tranche thereof, it
shall, on or before each due date of the principal of and premium, if any,
and interest, if any, on any of such Securities, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to
pay the principal and premium or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided.
The Company shall promptly notify the Trustee of any failure by the Company
(or any other obligor on such Securities) to make any payment of principal
of or premium, if any, or interest, if any, on such Securities.
Whenever the Company shall have one or more Paying Agents
for the Securities of any series, or any Tranche thereof, it shall, on or
before each due date of the principal of and premium, if any, and interest,
if any, on such Securities, deposit with such Paying Agents sums sufficient
(without duplication) to pay the principal and premium or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company shall promptly notify the Trustee of any
failure by it so to act.
The Company shall cause each Paying Agent for the Securities
of any series, or any Tranche thereof, other than the Company or the
Trustee, to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent shall:
(a) hold all sums held by it for the payment of the
principal of and premium, if any, or interest, if any, on such
Securities in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the Company
(or any other obligor upon such Securities) to make any payment
of principal of or premium, if any, or interest, if any, on such
Securities; and
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent and
furnish to the Trustee such information as it possesses regarding
the names and addresses of the Persons entitled to such sums.
The Company may at any time pay, or by Company Order direct
any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent and, if so stated in a Company Order delivered to the Trustee,
in accordance with the provisions of Article Seven; and, upon such payment
by any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of and
premium, if any, or interest, if any, on any Security and remaining
unclaimed for two years after such principal and premium, if any, or
interest has become due and payable shall be paid to the Company on Company
Request, or, if then held by the Company, shall be discharged from such
trust; and, upon such payment or discharge, the Holder of such Security
shall, as an unsecured general creditor and not as a Holder of an
Outstanding Security, look only to the Company for payment of the amount so
due and payable and remaining unpaid, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of
the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any
such payment to the Company, may at the expense of the Company cause to be
mailed, on one occasion only, notice to such Holder that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such mailing, any unclaimed balance of such
money then remaining will be paid to the Company.
SECTION 604. Corporate Existence.
Subject to the rights of the Company under Article Eleven,
the Company shall do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence.
SECTION 605. Maintenance of Properties.
The Company shall cause (or, with respect to property owned
in common with others, make reasonable effort to cause) all its properties
used or useful in the conduct of its business to be maintained and kept in
good condition, repair and working order and shall cause (or, with respect
to property owned in common with others, make reasonable effort to cause)
to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the Company, may be
necessary so that the business carried on in connection therewith may be
properly conducted; provided, however, that nothing in this Section shall
prevent the Company from discontinuing, or causing the discontinuance of,
the operation and maintenance of any of its properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct
of its business.
SECTION 606. Annual Officer's Certificate as to Compliance.
Not later than October 1 in each year, commencing October 1,
1995, the Company shall deliver to the Trustee an Officer's Certificate
which need not comply with Section 102, executed by the principal executive
officer, the principal financial officer or the principal accounting
officer of the Company, as to such officer's knowledge of the Company's
compliance with all conditions and covenants under this Indenture, such
compliance to be determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION 607. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply
with any term, provision or condition set forth in (a) Section 602 or any
additional covenant or restriction specified with respect to the Securities
of any series, or any Tranche thereof, as contemplated by Section 301 if
before the time for such compliance the Holders of at least a majority in
aggregate principal amount of the Outstanding Securities of all series and
Tranches with respect to which compliance with Section 602 or such
additional covenant or restriction is to be omitted, considered as one
class, shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or
condition and (b) Section 604, 605 or Article Eleven if before the time for
such compliance the Holders of at least a majority in principal amount of
Securities Outstanding under this Indenture shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance
with such term, provision or condition; but, in the case of (a) or (b), no
such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the
Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE SEVEN
Satisfaction and Discharge
SECTION 701. Satisfaction and Discharge of Securities.
Any Security or Securities, or any portion of the principal
amount thereof, shall be deemed to have been paid for all purposes of this
Indenture, and the entire indebtedness of the Company in respect thereof
shall be deemed to have been satisfied and discharged, if there shall have
been irrevocably deposited with the Trustee or any Paying Agent (other than
the Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity of
such Securities or portions thereof, Eligible Obligations, which
shall not contain provisions permitting the redemption or other
prepayment thereof at the option of the issuer thereof, the
principal of and the interest on which when due, without any
regard to reinvestment thereof, will provide moneys which,
together with the money, if any, deposited with or held by the
Trustee or such Paying Agent, shall be sufficient, or
(c) a combination of (a) or (b) which shall be sufficient,
to pay when due the principal of and premium, if any, and interest, if any,
due and to become due on such Securities or portions thereof on or prior to
Maturity; provided, however, that in the case of the provision for payment
or redemption of less than all the Securities of any series or Tranche,
such Securities or portions thereof shall have been selected by the
Security Registrar as provided herein and, in the case of a redemption, the
notice requisite to the validity of such redemption shall have been given
or irrevocable authority shall have been given by the Company to the
Trustee to give such notice, under arrangements satisfactory to the
Trustee; and provided, further, that the Company shall have delivered to
the Trustee and such Paying Agent:
(x) if such deposit shall have been made prior to the
Maturity of such Securities, a Company Order stating that
the money and Eligible Obligations deposited in accordance
with this Section shall be held in trust, as provided in
Section 703;
(y) if Eligible Obligations shall have been deposited,
an Opinion of Counsel that the obligations so deposited
constitute Eligible Obligations and do not contain
provisions permitting the redemption or other prepayment at
the option of the issuer thereof, and an opinion of an
independent public accountant of nationally recognized
standing, selected by the Company, to the effect that the
requirements set forth in clause (b) above have been
satisfied; and
(z) if such deposit shall have been made prior to the
Maturity of such Securities, an Officer's Certificate
stating the Company's intention that, upon delivery of such
Officer's Certificate, its indebtedness in respect of such
Securities or portions thereof will have been satisfied and
discharged as contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or both,
in accordance with this Section, together with the documents required by
clauses (x), (y) and (z) above, the Trustee shall, upon receipt of a
Company Request, acknowledge in writing that the Security or Securities or
portions thereof with respect to which such deposit was made are deemed to
have been paid for all purposes of this Indenture and that the entire
indebtedness of the Company in respect thereof has been satisfied and
discharged as contemplated in this Section. In the event that all of the
conditions set forth in the preceding paragraph shall have been satisfied
in respect of any Securities or portions thereof except that, for any
reason, the Officer's Certificate specified in clause (z) shall not have
been delivered, such Securities or portions thereof shall nevertheless be
deemed to have been paid for all purposes of this Indenture, and the
Holders of such Securities or portions thereof shall nevertheless be no
longer entitled to the benefits of this Indenture or of any of the
covenants of the Company under Article Six (except the covenants contained
in Sections 602, 603 and 604) or any other covenants made in respect of
such Securities or portions thereof as contemplated by Section 301, but the
indebtedness of the Company in respect of such Securities or portions
thereof shall not be deemed to have been satisfied and discharged prior to
Maturity for any other purpose, and the Holders of such Securities or
portions thereof shall continue to be entitled to look to the Company for
payment of the indebtedness represented thereby; and, upon Company Request,
the Trustee shall acknowledge in writing that such Securities or portions
thereof are deemed to have been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all of the
Securities of any series, or any Tranche thereof, is to be provided for in
the manner and with the effect provided in this Section, the Security
Registrar shall select such Securities, or portions of principal amount
thereof, in the manner specified by Section 403 for selection for
redemption of less than all the Securities of a series or Tranche.
In the event that Securities which shall be deemed to have
been paid for purposes of this Indenture, and, if such is the case, in
respect of which the Company's indebtedness shall have been satisfied and
discharged, all as provided in this Section do not mature and are not to be
redeemed within the sixty (60) day period commencing with the date of the
deposit of moneys or Eligible Obligations, as aforesaid, the Company shall,
as promptly as practicable, give a notice, in the same manner as a notice
of redemption with respect to such Securities, to the Holders of such
Securities to the effect that such deposit has been made and the effect
thereof.
Notwithstanding that any Securities shall be deemed to have
been paid for purposes of this Indenture, as aforesaid, the obligations of
the Company and the Trustee in respect of such Securities under Sections
304, 305, 306, 403, 404, 406, 503 (as to notice of redemption), 602, 603,
907, 909, 910 and 915 and this Article Seven shall survive.
The Company shall pay, and shall indemnify the Trustee or
any Paying Agent with which Eligible Obligations shall have been deposited
as provided in this Section against, any tax, fee or other charge imposed
on or assessed against such Eligible Obligations or the principal or
interest received in respect of such Eligible Obligations, including, but
not limited to, any such tax payable by any entity deemed, for tax
purposes, to have been created as a result of such deposit.
Anything herein to the contrary notwithstanding, (a) if, at
any time after a Security would be deemed to have been paid for purposes of
this Indenture, and, if such is the case, the Company's indebtedness in
respect thereof would be deemed to have been satisfied or discharged,
pursuant to this Section (without regard to the provisions of this
paragraph), the Trustee or any Paying Agent, as the case may be, shall be
required to return the money or Eligible Obligations, or combination
thereof, deposited with it as aforesaid to the Company or its
representative under any applicable Federal or State bankruptcy, insolvency
or other similar law, such Security shall thereupon be deemed retroactively
not to have been paid and any satisfaction and discharge of the Company's
indebtedness in respect thereof shall retroactively be deemed not to have
been effected, and such Security shall be deemed to remain Outstanding and
(b) any satisfaction and discharge of the Company's indebtedness in respect
of any Security shall be subject to the provisions of the last paragraph of
Section 603.
SECTION 702. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as hereinafter expressly provided), and the Trustee,
at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company;
provided, however, that if, in accordance with the last paragraph of
Section 701, any Security, previously deemed to have been paid for purposes
of this Indenture, shall be deemed retroactively not to have been so paid,
this Indenture shall thereupon be deemed retroactively not to have been
satisfied and discharged, as aforesaid, and to remain in full force and
effect, and the Company shall execute and deliver such instruments as the
Trustee shall reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this In-
denture as aforesaid, the obligations of the Company and the Trustee under
Sections 304, 305, 306, 403, 404, 406, 503 (as to notice of redemption),
602, 603, 907, 909, 910 and 915 and this Article Seven shall survive.
Upon satisfaction and discharge of this Indenture as pro-
vided in this Section, the Trustee shall assign, transfer and turn over to
the Company, subject to the lien provided by Section 907, any and all
money, securities and other property then held by the Trustee for the
benefit of the Holders of the Securities other than money and Eligible
Obligations held by the Trustee pursuant to Section 703.
SECTION 703. Application of Trust Money.
Neither the Eligible Obligations nor the money deposited
pursuant to Section 701, nor the principal or interest payments on any such
Eligible Obligations, shall be withdrawn or used for any purpose other
than, and such Eligible Obligations and money deposited and the principal
and interest payments on any such Eligible Obligations shall be held in
trust for, the payment of the principal of and premium, if any, and inter-
est, if any, on the Securities or portions of principal amount thereof in
respect of which such deposit was made, all subject, however, to the
provisions of Section 603; provided, however, that, so long as there shall
not have occurred and be continuing an Event of Default, any cash received
from such principal or interest payments on such Eligible Obligations, if
not then needed for such purpose, shall, to the extent practicable, be
invested in Eligible Obligations of the type described in clause (b) in the
first paragraph of Section 701 maturing at such times and in such amounts
as shall be sufficient to pay when due the principal of and premium, if
any, and interest, if any, due and to become due on such Securities or
portions thereof on and prior to the Maturity thereof, and interest earned
from such reinvestment shall be paid over to the Company as received, free
and clear of any trust, lien or pledge under this Indenture except the lien
provided by Section 907; and provided, further, that, so long as there
shall not have occurred and be continuing an Event of Default, any moneys
held in accordance with this Section on the Maturity of all such Securities
in excess of the amount required to pay the principal of and premium, if
any, and interest, if any, then due on such Securities shall be paid over
to the Company free and clear of any trust, lien or pledge under this
Indenture except the lien provided by Section 907; and provided, further,
that if an Event of Default shall have occurred and be continuing, moneys
to be paid over to the Company pursuant to this Section shall be held until
such Event of Default shall have been waived or cured.
ARTICLE EIGHT
Events of Default; Remedies
SECTION 801. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events:
(a) failure to pay interest, if any, on any Security of
such series within sixty (60) days after the same becomes due and
payable (whether or not payment is prohibited by the provisions
of Article Fifteen hereof); provided, however, that a valid
extension of the interest payment period by the Company as
contemplated in Section 312 of this Indenture shall not
constitute a failure to pay interest for this purpose; or
(b) failure to pay the principal of or premium, if any, on
any Security of such series within three (3) Business Days after
its Maturity (whether or not payment is prohibited by the
provisions of Article Fifteen hereof); or
(c) failure to perform, or breach of, any covenant or
warranty of the Company in this Indenture (other than a covenant
or warranty a default in the performance of which or breach of
which is elsewhere in this Section specifically dealt with or
which has expressly been included in this Indenture solely for
the benefit of one or more series of Securities other than such
series) for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee, or
to the Company and the Trustee by the Holders of at least 33% in
principal amount of the Outstanding Securities of such series, a
written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of
Default" hereunder, unless the Trustee, or the Trustee and the
Holders of a principal amount of Securities of such series not
less than the principal amount of Securities the Holders of which
gave such notice, as the case may be, shall agree in writing to
an extension of such period prior to its expiration; provided,
however, that the Trustee, or the Trustee and the Holders of such
principal amount of Securities of such series, as the case may
be, shall be deemed to have agreed to an extension of such period
if corrective action is initiated by the Company within such
period and is being diligently pursued; or
(d) the entry by a court having jurisdiction in the
premises of (1) a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or (2) a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition
by one or more Persons other than the Company seeking reorgani-
zation, arrangement, adjustment or composition of or in respect
of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official for the Company or for any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and any such decree or order for
relief or any such other decree or order shall have remained un-
stayed and in effect for a period of 90 consecutive days; or
(e) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by it to the entry of a decree or order for relief in
respect of the Company in a case or proceeding under any appli-
cable Federal or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of
a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it
to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or of
any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it
in writing of its inability to pay its debts generally as they
become due, or the authorization of such action by the Board of
Directors; or
(f) any other Event of Default specified with respect to
Securities of such series.
SECTION 802. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default shall have occurred and be continuing
with respect to Securities of any series at the time Outstanding, then in
every such case the Trustee or the Holders of not less than 33% in
principal amount of the Outstanding Securities of such series may declare
the principal amount (or, if any of the Securities of such series are
Discount Securities, such portion of the principal amount of such
Securities as may be specified in the terms thereof as contemplated by
Section 301) of all of the Securities of such series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if
given by Holders), and upon receipt by the Company of notice of such
declaration such principal amount (or specified amount) shall become
immediately due and payable (provided that the payment of principal of such
Securities shall remain subordinated to the extent provided in Article
Fifteen hereof); provided, however, that if an Event of Default shall have
occurred and be continuing with respect to more than one series of
Securities, the Trustee or the Holders of not less than 33% in aggregate
principal amount of the Outstanding Securities of all such series,
considered as one class (and not the Holders of the Securities of any one
of such series), may make such declaration of acceleration.
At any time after such a declaration of acceleration with
respect to Securities of any series shall have been made and before a judg-
ment or decree for payment of the money due shall have been obtained by the
Trustee as hereinafter in this Article provided, the Event or Events of
Default giving rise to such declaration of acceleration shall, without
further act, be deemed to have been waived, and such declaration and its
consequences shall, without further act, be deemed to have been rescinded
and annulled, if
(a) the Company shall have paid or deposited with the
Trustee a sum sufficient to pay
(1) all overdue interest on all Securities of such
series;
(2) the principal of and premium, if any, on any
Securities of such series which have become due otherwise
than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such
Securities;
(3) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities;
(4) all amounts due to the Trustee under Section 907;
and
(b) any other Event or Events of Default with respect to
Securities of such series, other than the non-payment of the
principal of Securities of such series which shall have become
due solely by such declaration of acceleration, shall have been
cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default or impair
any right consequent thereon.
SECTION 803. Collection of Indebtedness and Suits for Enforcement by
Trustee.
If an Event of Default described in clause (a) or (b) of
Section 801 shall have occurred and be continuing, the Company shall, upon
demand of the Trustee, pay to it, for the benefit of the Holders of the
Securities of the series with respect to which such Event of Default shall
have occurred, the whole amount then due and payable on such Securities for
principal and premium, if any, and interest, if any, and, to the extent
permitted by law, interest on premium, if any, and on any overdue principal
and interest, at the rate or rates prescribed therefor in such Securities,
and, in addition thereto, such further amount as shall be sufficient to
cover any amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the sums
so due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any other obligor
upon such Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company or
any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any
series shall have occurred and be continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 804. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any
other obligor upon the Securities or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest, if any, owing and
unpaid in respect of the Securities and to file such other papers
or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for amounts due to
the Trustee under Section 907) and of the Holders allowed in such
judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
SECTION 805. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders
in respect of which such judgment has been recovered.
SECTION 806. Application of Money Collected.
Subject to the provisions of Article Fifteen, any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money on account of principal or premium, if any,
or interest, if any, upon presentation of the Securities in respect of
which or for the benefit of which such money shall have been collected and
the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 907;
Second: To the payment of the amounts then due and unpaid
upon the Securities for principal of and premium, if any, and
interest, if any, in respect of which or for the benefit of
which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due
and payable on such Securities for principal, premium, if any,
and interest, if any, respectively; and
Third: To the Company.
SECTION 807. Limitation on Suits.
No Holder shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(a) such Holder shall have previously given written notice
to the Trustee of a continuing Event of Default with respect to
the Securities of such series;
(b) the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of all series in
respect of which an Event of Default shall have occurred and be
continuing, considered as one class, shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity shall have failed to
institute any such proceeding; and
(e) no direction inconsistent with such written request
shall have been given to the Trustee during such 60-day period by
the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series in respect of which an Event
of Default shall have occurred and be continuing, considered as
one class;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other of such Holders or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
SECTION 808. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and premium, if any,
and (subject to Section 307 and 312) interest, if any, on such Security on
the Stated Maturity or Maturities expressed in such Security (or, in the
case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 809. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Indenture and such proceeding
shall have been discontinued or abandoned for any reason, or shall have
been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the
Company, and Trustee and such Holder shall be restored severally and
respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and such Holder shall continue as though no
such proceeding had been instituted.
SECTION 810. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law,
be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 811. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
SECTION 812. Control by Holders of Securities.
If an Event of Default shall have occurred and be continuing
in respect of a series of Securities, the Holders of a majority in
principal amount of the Outstanding Securities of such series shall have
the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such series;
provided, however, that if an Event of Default shall have occurred and be
continuing with respect to more than one series of Securities, the Holders
of a majority in aggregate principal amount of the Outstanding Securities
of all such series, considered as one class, shall have the right to make
such direction, and not the Holders of the Securities of any one of such
series; and provided, further, that
(a) such direction shall not be in conflict with any rule
of law or with this Indenture, and could not involve the Trustee
in personal liability in circumstances where indemnity would not,
in the Trustee's sole discretion, be adequate, and
(b) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 813. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount
of the Outstanding Securities of any series may on behalf of the Holders of
all the Securities of such series waive any past default hereunder with
respect to such series and its consequences, except a default
(a) in the payment of the principal of or premium, if any,
or interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which
under Section 1202 cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series
affected.
Upon any such waiver, such default shall cease to exist, and
any and all Events of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
SECTION 814. Undertaking for Costs.
The Company and the Trustee agree, and each Holder by his
acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Company, to any suit instituted by the Trustee,
to any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in aggregate principal amount of the Outstanding
Securities of all series in respect of which such suit may be brought,
considered as one class, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of or premium, if any, or
interest, if any, on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
SECTION 815. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no
such law had been enacted.
ARTICLE NINE
The Trustee
SECTION 901. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default
with respect to Securities of any series,
(1) the Trustee undertakes to perform, with respect
to Securities of such series, such duties and only such
duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may, with respect to Securities of such series,
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default with respect to Securities
of any series shall have occurred and be continuing, the Trustee
shall exercise, with respect to Securities of such series, such
of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent
man would exercise or use under the circumstances in the conduct
of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own wilful misconduct,
except that
(1) this subsection shall not be construed to limit
the effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of a
majority in principal amount of the Outstanding Securities
of any one or more series, as provided herein, relating to
the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture
with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 902. Notice of Defaults.
The Trustee shall give notice of any default hereunder with
respect to the Securities of any series to the Holders of Securities of
such series in the manner and to the extent required to do so by the Trust
Indenture Act, unless such default shall have been cured or waived;
provided, however, that in the case of any default of the character
specified in Section 801(c), no such notice to Holders shall be given until
at least 75 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or
lapse of time, or both, would become, an Event of Default.
SECTION 903. Certain Rights of Trustee.
Subject to the provisions of Section 901 and to the
applicable provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party
or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order, or as otherwise expressly provided herein, and any
resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any Holder pursuant to this Indenture,
unless such Holder shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or
investigation, it shall (subject to applicable legal
requirements) be entitled to examine, during normal business
hours, the books, records and premises of the Company, personally
or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and
(h) except as otherwise provided in Section 801, the
Trustee shall not be charged with knowledge of any Event of
Default with respect to the Securities of any series for which it
is acting as Trustee unless either (1) a Responsible Officer of
the Trustee shall have actual knowledge of the Event of Default
or (2) written notice of such Event of Default shall have been
given to the Trustee by the Company, any other obligor on such
Securities or by any Holder of such Securities.
SECTION 904. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities (except
the Trustee's certificates of authentication) shall be taken as the
statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of
the Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 905. May Hold Securities.
Each of the Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 908 and 913, may otherwise deal with
the Company with the same rights it would have if it were not the Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 906. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds, except to the extent required by law. The
Trustee shall be under no liability for interest on or investment of any
money received by it hereunder except as expressly provided herein or
otherwise agreed with, and for the sole benefit of, the Company.
SECTION 907. Compensation and Reimbursement.
The Company shall
(a) pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein,
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or made
by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except to the extent
that any such expense, disbursement or advance may be
attributable to its negligence, wilful misconduct or bad faith;
and
(c) indemnify the Trustee and hold it harmless from and
against, any loss, liability or expense reasonably incurred by it
arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder or the
performance of its duties hereunder, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers
or duties hereunder, except to the extent any such loss,
liability or expense may be attributable to its negligence,
wilful misconduct or bad faith.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as
such other than property and funds held in trust under Section 703 (except
as otherwise provided in Section 703). "Trustee" for purposes of this
Section shall include any predecessor Trustee; provided, however, that the
negligence, wilful misconduct or bad faith of any Trustee hereunder shall
not affect the rights of any other Trustee hereunder.
SECTION 908. Disqualification; Conflicting Interests.
If the Trustee shall have or acquire any conflicting
interest within the meaning of the Trust Indenture Act, it shall either
eliminate such conflicting interest or resign to the extent, in the manner
and with the effect, and subject to the conditions, provided in the Trust
Indenture Act and this Indenture. For purposes of Section 310(b)(1) of the
Trust Indenture Act and to the extent permitted thereby, the Trustee, in
its capacity as trustee in respect of the Securities of any series, shall
not be deemed to have a conflicting interest arising from its capacity as
trustee in respect of the Securities of any other series.
SECTION 909. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall
be
(a) a corporation organized and doing business under the
laws of the United States, any State or Territory thereof or the
District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of
at least $50,000,000 and subject to supervision or examination by
Federal or State authority, or
(b) if and to the extent permitted by the Commission by
rule, regulation or order upon application, a corporation or
other Person organized and doing business under the laws of a
foreign government, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of
at least $50,000,000 or the Dollar equivalent of the applicable
foreign currency and subject to supervision or examination by
authority of such foreign government or a political subdivision
thereof substantially equivalent to supervision or examination
applicable to United States institutional trustees,
and, in either case, qualified and eligible under this Article and the
Trust Indenture Act. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of such supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
SECTION 910. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 911.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required
by Section 911 shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to
the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 908 after
written request therefor by the Company or by any Holder who has
been a bona fide Holder for at least six months, or
(2) the Trustee shall cease to be eligible under Section
909 and shall fail to resign after written request therefor by
the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (x) the Company by a Board Resolution may remove
the Trustee with respect to all Securities or (y) subject to Section 814,
any Holder who has been a bona fide Holder for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause (other than as contemplated in clause (y)
in subsection (d) of this Section), with respect to the
Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series
(it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 911.
If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of
Section 911, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 911, any Holder who
has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the
Securities of such series.
(f) So long as no event which is, or after notice or lapse
of time, or both, would become, an Event of Default shall have
occurred and be continuing, and except with respect to a Trustee
appointed by Act of the Holders of a majority in principal amount
of the Outstanding Securities pursuant to subsection (e) of this
Section, if the Company shall have delivered to the Trustee (i) a
Board Resolution appointing a successor Trustee, effective as of
a date specified therein, and (ii) an instrument of acceptance of
such appointment, effective as of such date, by such successor
Trustee in accordance with Section 911, the Trustee shall be
deemed to have resigned as contemplated in subsection (b) of this
Section, the successor Trustee shall be deemed to have been
appointed by the Company pursuant to subsection (e) of this
Section and such appointment shall be deemed to have been
accepted as contemplated in Section 911, all as of such date, and
all other provisions of this Section and Section 911 shall be
applicable to such resignation, appointment and acceptance except
to the extent inconsistent with this subsection (f).
(g) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect
to the Securities of any series by mailing written notice of such
event by first-class mail, postage prepaid, to all Holders of
Securities of such series as their names and addresses appear in
the Security Register. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series
and the address of its corporate trust office.
SECTION 911. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of all series, every such
successor Trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall,
upon payment of all sums owed to it, execute and deliver an
instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not
all) series, the Company, the retiring Trustee and each successor
Trustee with respect to the Securities of one or more series
shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and
which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect
to all Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the
retiring Trustee and (3) shall add to or change any of the provi-
sions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such Trustees co-
trustees of the same trust and that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee, upon payment of all
sums owed to it, shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any instruments which fully vest in and confirm to
such successor Trustee all such rights, powers and trusts
referred to in subsection (a) or (b) of this Section, as the case
may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
SECTION 912. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise qualified
and eligible under this Article, without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In case
any Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 913. Preferential Collection of Claims Against Company.
If the Trustee shall be or become a creditor of the Company
or any other obligor upon the Securities (other than by reason of a
relationship described in Section 311(b) of the Trust Indenture Act), the
Trustee shall be subject to any and all applicable provisions of the Trust
Indenture Act regarding the collection of claims against the Company or
such other obligor. For purposes of Section 311(b) of the Trust Indenture
Act:
(a) the term "cash transaction" means any transaction in
which full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft, bill
of exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance or obligation.
SECTION 914. Co-trustees and Separate Trustees.
At any time or times, for the purpose of meeting the legal
requirements of any applicable jurisdiction, the Company and the Trustee
shall have power to appoint, and, upon the written request of the Trustee
or of the Holders of at least thirty-three per centum (33%) in principal
amount of the Securities then Outstanding, the Company shall for such
purpose join with the Trustee in the execution and delivery of all
instruments and agreements necessary or proper to appoint, one or more
Persons approved by the Trustee either to act as co-trustee, jointly with
the Trustee, or to act as separate trustee, in either case with such powers
as may be provided in the instrument of appointment, and to vest in such
Person or Persons, in the capacity aforesaid, any property, title, right or
power deemed necessary or desirable, subject to the other provisions of
this Section. If the Company does not join in such appointment within 15
days after the receipt by it of a request so to do, or if an Event of
Default shall have occurred and be continuing, the Trustee alone shall have
power to make such appointment.
Should any written instrument or instruments from the
Company be required by any co-trustee or separate trustee so appointed to
more fully confirm to such co-trustee or separate trustee such property,
title, right or power, any and all such instruments shall, on request, be
executed, acknowledged and delivered by the Company.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following conditions:
(a) the Securities shall be authenticated and delivered,
and all rights, powers, duties and obligations hereunder in
respect of the custody of securities, cash and other personal
property held by, or required to be deposited or pledged with,
the Trustee hereunder, shall be exercised solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon
and exercised or performed either by the Trustee or by the
Trustee and such co-trustee or separate trustee jointly, as shall
be provided in the instrument appointing such co-trustee or
separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the
Trustee shall be incompetent or unqualified to perform such act,
in which event such rights, powers, duties and obligations shall
be exercised and performed by such co-trustee or separate
trustee;
(c) the Trustee at any time, by an instrument in writing
executed by it, with the concurrence of the Company, may accept
the resignation of or remove any co-trustee or separate trustee
appointed under this Section, and, if an Event of Default shall
have occurred and be continuing, the Trustee shall have power to
accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Company. Upon
the written request of the Trustee, the Company shall join with
the Trustee in the execution and delivery of all instruments and
agreements necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in
this Section;
(d) no co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the
Trustee, or any other such trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall be
deemed to have been delivered to each such co-trustee and
separate trustee.
SECTION 915. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents
with respect to the Securities of one or more series, or any Tranche there-
of, which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series or Tranche issued upon original
issuance, exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication
and delivery on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing
business under the laws of the United States, any State or territory
thereof or the District of Columbia or the Commonwealth of Puerto Rico,
authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any cor-
poration resulting from any merger, conversion or consolidation to which
such Authenticating Agent shall be a party, or any corporation succeeding
to the corporate agency or corporate trust business of an Authenticating
Agent, shall continue to be an Authenticating Agent, provided such
corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may
at any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or
in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company.
Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section,
and the Trustee shall be entitled to be reimbursed for such payments, in
accordance with, and subject to the provisions of Section 907.
The provisions of Sections 308, 904 and 905 shall be ap-
plicable to each Authenticating Agent.
If an appointment with respect to the Securities of one or
more series, or any Tranche thereof, shall be made pursuant to this
Section, the Securities of such series or Tranche may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following
form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
The Chase Manhattan Bank
(National Association) As Trustee
By: ___________________________
As Authenticating Agent
By: ___________________________
Authorized Signatory
If all of the Securities of a series may not be originally
issued at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of
Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested by the
Company in writing (which writing need not comply with Section 102 and need
not be accompanied by an Opinion of Counsel), shall appoint, in accordance
with this Section and in accordance with such procedures as shall be
acceptable to the Trustee, an Authenticating Agent having an office in a
Place of Payment designated by the Company with respect to such series of
Securities.
ARTICLE TEN
Holders' Lists and Reports by Trustee and Company
SECTION 1001. Lists of Holders.
Semiannually, not later than March 1 and September 1 in each
year, commencing September 1, 1995, and at such other times as the Trustee
may request in writing, the Company shall furnish or cause to be furnished
to the Trustee information as to the names and addresses of the Holders,
and the Trustee shall preserve such information and similar information
received by it in any other capacity and afford to the Holders access to
information so preserved by it, all to such extent, if any, and in such
manner as shall be required by the Trust Indenture Act; provided, however,
that no such list need be furnished so long as the Trustee shall be the
Security Registrar.
SECTION 1002. Reports by Trustee and Company.
Not later than June 1 in each year, commencing June 1, 1996,
the Trustee shall transmit to the Holders and the Commission a report,
dated as of the next preceding April 1, with respect to any events and
other matters described in Section 313(a) of the Trust Indenture Act, in
such manner and to the extent required by the Trust Indenture Act. The
Trustee shall transmit to the Holders and the Commission, and the Company
shall file with the Trustee (within thirty (30) days after filing with the
Commission in the case of reports which pursuant to the Trust Indenture Act
must be filed with the Commission and furnished to the Trustee) and
transmit to the Holders, such other information, reports and other
documents, if any, at such times and in such manner, as shall be required
by the Trust Indenture Act.
ARTICLE ELEVEN
Consolidation, Merger, Conveyance or Other Transfer
SECTION 1101. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any
other corporation, or convey or otherwise transfer or lease its properties
and assets substantially as an entirety to any Person, unless
(a) the corporation formed by such consolidation or into
which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a
Person organized and existing under the laws of the United
States, any State thereof or the District of Columbia, and shall
expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of and
premium, if any, and interest, if any, on all Outstanding
Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction and
treating any indebtedness for borrowed money which becomes an
obligation of the Company as a result of such transaction as
having been incurred by the Company at the time of such
transaction, no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, or other transfer or
lease and such supplemental indenture comply with this Article
and that all conditions precedent herein provided for relating to
such transactions have been complied with.
SECTION 1102. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the
Company into any other corporation or any conveyance, or other transfer or
lease of the properties and assets of the Company substantially as an
entirety in accordance with Section 1101, the successor corporation formed
by such consolidation or into which the Company is merged or the Person to
which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had
been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities Outstanding hereunder.
ARTICLE TWELVE
Supplemental Indentures
SECTION 1201. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for
any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants
of the Company herein and in the Securities, all as provided in
Article Eleven; or
(b) to add one or more covenants of the Company or other
provisions for the benefit of all Holders or for the benefit of
the Holders of, or to remain in effect only so long as there
shall be Outstanding, Securities of one or more specified series,
or one or more specified Tranches thereof, or to surrender any
right or power herein conferred upon the Company; or
(c) to add any additional Events of Default with respect to
all or any series of Securities Outstanding hereunder; or
(d) to change or eliminate any provision of this Indenture
or to add any new provision to this Indenture; provided, however,
that if such change, elimination or addition shall adversely
affect the interests of the Holders of Securities of any series
or Tranche Outstanding on the date of such indenture supplemental
hereto in any material respect, such change, elimination or
addition shall become effective (i) with respect to such series
or Tranche only pursuant to the provisions of Section 1202 hereof
or (ii) when no Security of such series or Tranche remains
Outstanding; or
(e) to provide collateral security for all but not part of
the Securities; or
(f) to establish the form or terms of Securities of any
series or Tranche as contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of
bearer securities and coupons appertaining thereto representing
interest, if any, thereon and for the procedures for the
registration, exchange and replacement thereof and for the giving
of notice to, and the solicitation of the vote or consent of, the
holders thereof, and for any and all other matters incidental
thereto; or
(h) to evidence and provide for the acceptance of
appointment hereunder by a separate or successor Trustee with re-
spect to the Securities of one or more series and to add to or
change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 911(b); or
(i) to provide for the procedures required to permit the
Company to utilize, at its option, a non-certificated system of
registration for all, or any series or Tranche of, the Securi-
ties; or
(j) to change any place or places where (1) the principal
of and premium, if any, and interest, if any, on all or any
series of Securities, or any Tranche thereof, shall be payable,
(2) all or any series of Securities, or any Tranche thereof, may
be surrendered for registration of transfer, (3) all or any
series of Securities, or any Tranche thereof, may be surrendered
for exchange and (4) notices and demands to or upon the Company
in respect of all or any series of Securities, or any Tranche
thereof, and this Indenture may be served; or
(k) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein, or to make any other changes to the
provisions hereof or to add other provisions with respect to
matters or questions arising under this Indenture, provided that
such other changes or additions shall not adversely affect the
interests of the Holders of Securities of any series or Tranche
in any material respect.
Without limiting the generality of the foregoing, if the
Trust Indenture Act as in effect at the date of the execution and delivery
of this Indenture or at any time thereafter shall be amended and
(x) if any such amendment shall require one or more
changes to any provisions hereof or the inclusion herein of
any additional provisions, or shall by operation of law be
deemed to effect such changes or incorporate such provisions
by reference or otherwise, this Indenture shall be deemed to
have been amended so as to conform to such amendment to the
Trust Indenture Act, and the Company and the Trustee may,
without the consent of any Holders, enter into an indenture
supplemental hereto to effect or evidence such changes or
additional provisions; or
(y) if any such amendment shall permit one or more
changes to, or the elimination of, any provisions hereof
which, at the date of the execution and delivery hereof or
at any time thereafter, are required by the Trust Indenture
Act to be contained herein, this Indenture shall be deemed
to have been amended to effect such changes or elimination,
and the Company and the Trustee may, without the consent of
any Holders, enter into an indenture supplemental hereto to
evidence such amendment hereof.
SECTION 1202. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority
in aggregate principal amount of the Securities of all series then
Outstanding under this Indenture, considered as one class, by Act of said
Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provi-
sions of, this Indenture; provided, however, that if there shall be
Securities of more than one series Outstanding hereunder and if a proposed
supplemental indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such series, then the
consent only of the Holders of a majority in aggregate principal amount of
the Outstanding Securities of all series so directly affected, considered
as one class, shall be required; and provided, further, that if the Secu-
rities of any series shall have been issued in more than one Tranche and if
the proposed supplemental indenture shall directly affect the rights of the
Holders of Securities of one or more, but less than all, of such Tranches,
then the consent only of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all Tranches so directly affected,
considered as one class, shall be required; and provided, further, that no
such supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on (except as provided in
Section 312 hereof), any Security, or reduce the principal amount
thereof or the rate of interest thereon (or the amount of any
installment of interest thereon) or change the method of
calculating such rate or reduce any premium payable upon the
redemption thereof, or reduce the amount of the principal of a
Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to
Section 802, or change the coin or currency (or other property),
in which any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
of any Security (or, in the case of redemption, on or after the
Redemption Date), without, in any such case, the consent of the
Holder of such Security, or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series or any Tranche thereof, the
consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with any provision of this
Indenture or of any default hereunder and its consequences, or
reduce the requirements of Section 1304 for quorum or voting,
without, in any such case, the consent of the Holders of each
Outstanding Security of such series or Tranche, or
(c) modify any of the provisions of this Section, Section
607 or Section 813 with respect to the Securities of any series,
or any Tranche thereof, or except to increase the percentages in
principal amount referred to in this Section or such other
Sections or to provide that other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the consent of
any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section, or the deletion
of this proviso, in accordance with the requirements of Sections
911(b) and 1201(h).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of Securi-
ties, or of one or more Tranches thereof, or which modifies the rights of
the Holders of Securities of such series or Tranches with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof. A waiver by a Holder of such Holder's right to consent
under this Section shall be deemed to be a consent of such Holder.
SECTION 1203. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 901) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties,
immunities or liabilities under this Indenture or otherwise.
SECTION 1204. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby. Any
supplemental indenture permitted by this Article may restate this Indenture
in its entirety, and, upon the execution and delivery thereof, any such
restatement shall supersede this Indenture as theretofore in effect for all
purposes.
SECTION 1205. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act as
then in effect.
SECTION 1206. Reference in Securities to Supplemental Indentures.
Securities of any series, or any Tranche thereof,
authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series, or any Tranche thereof, so
modified as to conform, in the opinion of the Trustee and the Company, to
any such supplemental indenture may be prepared and executed by the Company
and authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series or Tranche.
SECTION 1207. Modification Without Supplemental Indenture.
If the terms of any particular series of Securities shall
have been established in a Board Resolution or an Officer's Certificate
pursuant to a Board Resolution as contemplated by Section 301, and not in
an indenture supplemental hereto, additions to, changes in or the
elimination of any of such terms may be effected by means of a supplemental
Board Resolution or Officer's Certificate, as the case may be, delivered
to, and accepted by, the Trustee; provided, however, that such supplemental
Board Resolution or Officer's Certificate shall not be accepted by the
Trustee or otherwise be effective unless all conditions set forth in this
Indenture which would be required to be satisfied if such additions,
changes or elimination were contained in a supplemental indenture shall
have been appropriately satisfied. Upon the acceptance thereof by the
Trustee, any such supplemental Board Resolution or Officer's Certificate
shall be deemed to be a "supplemental indenture" for purposes of Section
1204 and 1206.
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, may be called at any time and
from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series or Tranches.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders
of Securities of one or more, or all, series, or any Tranche or
Tranches thereof, for any purpose specified in Section 1301, to
be held at such time and at such place in the Borough of
Manhattan, The City of New York, as the Trustee shall determine,
or, with the approval of the Company, at any other place. Notice
of every such meeting, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken
at such meeting, shall be given, in the manner provided in
Section 106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) If the Trustee shall have been requested to call a
meeting of the Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, by the Company or by
the Holders of 33% in aggregate principal amount of all of such
series and Tranches, considered as one class, for any purpose
specified in Section 1301, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting,
and the Trustee shall not have given the notice of such meeting
within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities of such
series and Tranches in the amount above specified, as the case
may be, may determine the time and the place in the Borough of
Manhattan, The City of New York, or in such other place as shall
be determined or approved by the Company, for such meeting and
may call such meeting for such purposes by giving notice thereof
as provided in subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or more, or
all, series, or any Tranche or Tranches thereof, shall be valid
without notice if the Holders of all Outstanding Securities of
such series or Tranches are present in person or by proxy and if
representatives of the Company and the Trustee are present, or if
notice is waived in writing before or after the meeting by the
Holders of all Outstanding Securities of such series, or by such
of them as are not present at the meeting in person or by proxy,
and by the Company and the Trustee.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securi-
ties of one or more, or all, series, or any Tranche or Tranches thereof, a
Person shall be (a) a Holder of one or more Outstanding Securities of such
series or Tranches, or (b) a Person appointed by an instrument in writing
as proxy for a Holder or Holders of one or more Outstanding Securities of
such series or Tranches by such Holder or Holders. The only Persons who
shall be entitled to attend any meeting of Holders of Securities of any
series or Tranche shall be the Persons entitled to vote at such meeting and
their counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of the series and Tranches
with respect to which a meeting shall have been called as hereinbefore
provided, considered as one class, shall constitute a quorum for a meeting
of Holders of Securities of such series and Tranches; provided, however,
that if any action is to be taken at such meeting which this Indenture
expressly provides may be taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the Outstanding
Securities of such series and Tranches, considered as one class, the Per-
sons entitled to vote such specified percentage in principal amount of the
Outstanding Securities of such series and Tranches, considered as one
class, shall constitute a quorum. In the absence of a quorum within one
hour of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series and
Tranches, be dissolved. In any other case the meeting may be adjourned for
such period as may be determined by the chairman of the meeting prior to
the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for such
period as may be determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Except as provided by Section
1305(e), notice of the reconvening of any meeting adjourned for more than
30 days shall be given as provided in Section 1302(a) not less than ten
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series and Tranches which shall constitute a quorum.
Except as limited by Section 1202, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of the series and Tranches with respect to which such meeting
shall have been called, considered as one class; provided, however, that,
except as so limited, any resolution with respect to any action which this
Indenture expressly provides may be taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the Out-
standing Securities of such series and Tranches, considered as one class,
may be adopted at a meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid by the affirmative vote of the
Holders of such specified percentage in principal amount of the Outstanding
Securities of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting of
Holders of Securities duly held in accordance with this Section shall be
binding on all the Holders of Securities of the series and Tranches with
respect to which such meeting shall have been held, whether or not present
or represented at the meeting.
SECTION 1305. Attendance at Meetings; Determination of Voting Rights;
Conduct and Adjournment of Meetings.
(a) Attendance at meetings of Holders of Securities may be
in person or by proxy; and, to the extent permitted by law, any
such proxy shall remain in effect and be binding upon any future
Holder of the Securities with respect to which it was given
unless and until specifically revoked by the Holder or future
Holder of such Securities before being voted.
(b) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities in regard to
proof of the holding of such Securities and of the appointment of
proxies and in regard to the appointment and duties of inspectors
of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in
the manner specified in Section 104 and the appointment of any
proxy shall be proved in the manner specified in Section 104.
Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine
without the proof specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing, appoint
a temporary chairman of the meeting, unless the meeting shall
have been called by the Company or by Holders as provided in
Section 1302(b), in which case the Company or the Holders of
Securities of the series and Tranches calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a
majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches represented at the meeting,
considered as one class.
(d) At any meeting each Holder or proxy shall be entitled
to one vote for each $1 principal amount of Securities held or
represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Security challenged
as not Outstanding and ruled by the chairman of the meeting to be
not Outstanding. The chairman of the meeting shall have no right
to vote, except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302 at
which a quorum is present may be adjourned from time to time by
Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of all series and Tranches
represented at the meeting, considered as one class; and the
meeting may be held as so adjourned without further notice.
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of
Holders shall be by written ballots on which shall be subscribed the
signatures of the Holders or of their representatives by proxy and the
principal amounts and serial numbers of the Outstanding Securities, of the
series and Tranches with respect to which the meeting shall have been
called, held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports of all votes cast
at the meeting. A record of the proceedings of each meeting of Holders
shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on
any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of the
meeting and showing that said notice was given as provided in Section 1302
and, if applicable, Section 1304. Each copy shall be signed and verified
by the affidavits of the permanent chairman and secretary of the meeting
and one such copy shall be delivered to the Company, and another to the
Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and verified shall
be conclusive evidence of the matters therein stated.
SECTION 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as hereinbefore
contemplated in this Article, any request, demand, authorization,
direction, notice, consent, waiver or other action may be made, given or
taken by Holders by written instruments as provided in Section 104.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and Directors
SECTION 1401. Liability Solely Corporate.
No recourse shall be had for the payment of the principal of
or premium, if any, or interest, if any, on any Securities, or any part
thereof, or for any claim based thereon or otherwise in respect thereof, or
of the indebtedness represented thereby, or upon any obligation, covenant
or agreement under this Indenture, against any incorporator, stockholder,
officer or director, as such, past, present or future of the Company or of
any predecessor or successor corporation (either directly or through the
Company or a predecessor or successor corporation), whether by virtue of
any constitutional provision, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being expressly agreed and
understood that this Indenture and all the Securities are solely corporate
obligations, and that no personal liability whatsoever shall attach to, or
be incurred by, any incorporator, stockholder, officer or director, past,
present or future, of the Company or of any predecessor or successor
corporation, either directly or indirectly through the Company or any
predecessor or successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the obligations, covenants or
agreements contained in this Indenture or in any of the Securities or to be
implied herefrom or therefrom, and that any such personal liability is
hereby expressly waived and released as a condition of, and as part of the
consideration for, the execution of this Indenture and the issuance of the
Securities.
ARTICLE FIFTEEN
Subordination of Securities
SECTION 1501. Securities Subordinate to Senior Indebtedness.
The Company, for itself, its successors and assigns,
covenants and agrees, and each Holder of the Securities of each series, by
its acceptance thereof, likewise covenants and agrees, that the payment of
the principal of and premium, if any, and interest, if any, on each and all
of the Securities is hereby expressly subordinated, to the extent and in
the manner set forth in this Article, in right of payment to the prior
payment in full of all Senior Indebtedness.
Each Holder of the Securities of each series, by its
acceptance thereof, authorizes and directs the Trustee on its behalf to
take such action as may be necessary or appropriate to effectuate the
subordination as provided in this Article, and appoints the Trustee its
attorney-in-fact for any and all such purposes.
SECTION 1502. Payment Over of Proceeds of Securities.
In the event (a) of any insolvency or bankruptcy proceedings
or any receivership, liquidation, reorganization or other similar
proceedings in respect of the Company or a substantial part of its
property, or of any proceedings for liquidation, dissolution or other
winding up of the Company, whether or not involving insolvency or
bankruptcy, or (b) subject to the provisions of Section 1503, that (i) a
default shall have occurred with respect to the payment of principal of or
interest on or other monetary amounts due and payable on any Senior
Indebtedness, or (ii) there shall have occurred a default (other than a
default in the payment of principal or interest or other monetary amounts
due and payable) in respect of any Senior Indebtedness, as defined therein
or in the instrument under which the same is outstanding, permitting the
holder or holders thereof to accelerate the maturity thereof (with notice
or lapse of time, or both), such default shall have continued beyond the
period of grace, if any, in respect thereof, and, in the cases of
subclauses (i) and (ii) of this clause (b), such default shall not have
been cured or waived or shall not have ceased to exist, or (c) that the
principal of and accrued interest on the Securities of any series shall
have been declared due and payable pursuant to Section 801 and such
declaration shall not have been rescinded and annulled as provided in
Section 802, then:
(1) the holders of all Senior Indebtedness shall
first be entitled to receive payment of the full amount
due thereon, or provision shall be made for such payment
in money or money's worth, before the Holders of any of
the Securities are entitled to receive a payment on
account of the principal of, premium, if any, or
interest on the indebtedness evidenced by the
Securities, including, without limitation, any payments
made pursuant to Articles Four and Five;
(2) any payment by, or distribution of assets of,
the Company of any kind or character, whether in cash,
property or securities, to which any Holder or the
Trustee would be entitled except for the provisions of
this Article, shall be paid or delivered by the person
making such payment or distribution, whether a trustee
in bankruptcy, a receiver or liquidating trustee or
otherwise, directly to the holders of such Senior
Indebtedness or their representative or representatives
or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to
the aggregate amounts remaining unpaid on account of
such Senior Indebtedness held or represented by each, to
the extent necessary to make payment in full of all
Senior Indebtedness remaining unpaid after giving effect
to any concurrent payment or distribution (or provision
therefor) to the holders of such Senior Indebtedness,
before any payment or distribution is made to the
Holders of the indebtedness evidenced by the Securities
or to the Trustee under this Indenture; and
(3) in the event that, notwithstanding the
foregoing, any payment by, or distribution of assets of,
the Company of any kind or character, whether in cash,
property or securities, in respect of principal of or
interest on the Securities or in connection with any
repurchase by the Company of the Securities, shall be
received by the Trustee or any Holder before all Senior
Indebtedness is paid in full, or provision is made for
such payment in money or money's worth, such payment or
distribution in respect of principal of or interest on
the Securities or in connection with any repurchase by
the Company of the Securities shall be paid over to the
holders of such Senior Indebtedness or their
representative or representatives or to the trustee or
trustees under any indenture under which any instruments
evidencing any such Senior Indebtedness may have been
issued, ratably as aforesaid, for application to the
payment of all Senior Indebtedness remaining unpaid
until all such Senior Indebtedness shall have been paid
in full, after giving effect to any concurrent payment
or distribution (or provision therefor) to the holders
of such Senior Indebtedness.
Notwithstanding the foregoing, at any time after the 123rd day
following the date of deposit of cash or Eligible Obligations pursuant to
Section 701 (provided all conditions set out in such Section shall have
been satisfied), the funds so deposited and any interest thereon will not
be subject to any rights of holders of Senior Indebtedness including,
without limitation, those arising under this Article Fifteen; provided that
no event described in clauses (d) and (e) of Section 801 with respect to
the Company has occurred during such 123-day period.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company
as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan or reorganization or readjustment which
are subordinate in right of payment to all Senior Indebtedness which may at
the time be outstanding to the same extent as, or to a greater extent than,
the Securities are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into,
another corporation or the liquidation or dissolution of the Company
following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article Eleven hereof shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of
this Section 1502 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article Eleven hereof. Nothing in Section 1501 or in this
Section 1502 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 907.
SECTION 1503. Disputes with Holders of Certain Senior Indebtedness.
Any failure by the Company to make any payment on or perform
any other obligation in respect of Senior Indebtedness, other than any
indebtedness incurred by the Company or assumed or guaranteed, directly or
indirectly, by the Company for money borrowed (or any deferral, renewal,
extension or refunding thereof) or any other obligation as to which the
provisions of this Section shall have been waived by the Company in the
instrument or instruments by which the Company incurred, assumed,
guaranteed or otherwise created such indebtedness or obligation, shall not
be deemed a default under clause (b) of Section 1502 if (i) the Company
shall be disputing its obligation to make such payment or perform such
obligation and (ii) either (A) no final judgment relating to such dispute
shall have been issued against the Company which is in full force and
effect and is not subject to further review, including a judgment that has
become final by reason of the expiration of the time within which a party
may seek further appeal or review, or (B) in the event that a judgment that
is subject to further review or appeal has been issued, the Company shall
in good faith be prosecuting an appeal or other proceeding for review and a
stay or execution shall have been obtained pending such appeal or review.
SECTION 1504. Subrogation.
Senior Indebtedness shall not be deemed to have been paid in
full unless the holders thereof shall have received cash (or securities or
other property satisfactory to such holders) in full payment of such Senior
Indebtedness then outstanding. Upon the payment in full of all Senior
Indebtedness, the Holders of the Securities shall be subrogated to the
rights of the holders of Senior Indebtedness to receive any further
payments or distributions of cash, property or securities of the Company
applicable to the holders of the Senior Indebtedness until all amounts
owing on the Securities shall be paid in full; and such payments or
distributions of cash, property or securities received by the Holders of
the Securities, by reason of such subrogation, which otherwise would be
paid or distributed to the holders of such Senior Indebtedness shall, as
between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders, be deemed to be a payment by the Company to
or on account of Senior Indebtedness, it being understood that the
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and the
holders of the Senior Indebtedness, on the other hand.
SECTION 1505. Obligation of the Company Unconditional.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among the
Company, its creditors other than the holders of Senior Indebtedness and
the Holders, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and interest on the
Securities as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of
the Holders and creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or
any Holder from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the rights, if any, under
this Article of the holders of Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any
such remedy.
Upon any payment or distribution of assets or securities of the
Company referred to in this Article, the Trustee and the Holders shall be
entitled to rely upon any order or decree of a court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending for the purpose of ascertaining the
persons entitled to participate in such distribution, the holders of the
Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed
thereon, and all other facts pertinent thereto or to this Article.
SECTION 1506. Priority of Senior Indebtedness Upon Maturity.
Upon the maturity of the principal of any Senior Indebtedness
by lapse of time, acceleration or otherwise, all matured principal of
Senior Indebtedness and interest and premium, if any, thereon shall first
be paid in full before any payment of principal or premium or interest, if
any, is made upon the Securities or before any Securities can be acquired
by the Company or any sinking fund payment is made with respect to the
Securities (except that required sinking fund payments may be reduced by
Securities acquired before such maturity of such Senior Indebtedness).
SECTION 1507. Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all rights set forth in this
Article with respect to any Senior Indebtedness at any time held by it, to
the same extent as any other holder of Senior Indebtedness. Nothing in this
Article shall deprive the Trustee of any of its rights as such holder.
SECTION 1508. Notice to Trustee to Effectuate Subordination.
Notwithstanding the provisions of this Article or any other
provision of the Indenture, the Trustee shall not be charged with knowledge
of the existence of any facts which would prohibit the making of any
payment of moneys to or by the Trustee unless and until the Trustee shall
have received written notice thereof from the Company, from a Holder or
from a holder of any Senior Indebtedness or from any representative or
representatives of such holder and, prior to the receipt of any such
written notice, the Trustee shall be entitled, subject to Section 901, in
all respects to assume that no such facts exist; provided, however, that,
if prior to the fifth Business Day preceding the date upon which by the
terms hereof any such moneys may become payable for any purpose, or in the
event of the execution of an instrument pursuant to Section 702
acknowledging satisfaction and discharge of this Indenture, then if prior
to the second Business Day preceding the date of such execution, the
Trustee shall not have received with respect to such moneys the notice
provided for in this Section, then, anything herein contained to the
contrary notwithstanding, the Trustee may, in its discretion, receive such
moneys and/or apply the same to the purpose for which they were received,
and shall not be affected by any notice to the contrary, which may be
received by it on or after such date; provided, however, that no such
application shall affect the obligations under this Article of the persons
receiving such moneys from the Trustee.
SECTION 1509. Modification, Extension, etc. of Senior Indebtedness.
The holders of Senior Indebtedness may, without affecting in
any manner the subordination of the payment of the principal of and
premium, if any, and interest, if any, on the Securities, at any time or
from time to time and in their absolute discretion, agree with the Company
to change the manner, place or terms of payment, change or extend the time
of payment of, or renew or alter, any Senior Indebtedness, or amend or
supplement any instrument pursuant to which any Senior Indebtedness is
issued, or exercise or refrain from exercising any other of their rights
under the Senior Indebtedness including, without limitation, the waiver of
default thereunder, all without notice to or assent from the Holders or the
Trustee.
SECTION 1510. Trustee Has No Fiduciary Duty to Holders of Senior
Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and
objectives as are specifically set forth in this Indenture, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall
not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness, and shall not be liable to any such holders if it shall
mistakenly pay over or deliver to the Holders or the Company or any other
Person, money or assets to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article or otherwise.
SECTION 1511. Paying Agents Other Than the Trustee.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the
term "Trustee" as used in this Article shall in such case (unless the
context shall otherwise require) be construed as extending to and including
such Paying Agent within its meaning as fully for all intents and purposes
as if such Paying Agent were named in this Article in addition to or in
place of the Trustee; provided, however, that Sections 1507, 1508 and 1510
shall not apply to the Company if it acts as Paying Agent.
SECTION 1512. Rights of Holders of Senior Indebtedness Not Impaired.
No right of any present or future holder of Senior Indebtedness
to enforce the subordination herein shall at any time or in any way be
prejudiced or impaired by any act or failure to act on the part of the
Company or by any noncompliance by the Company with the terms, provisions
and covenants of this Indenture, regardless of any knowledge thereof any
such holder may have or be otherwise charged with.
SECTION 1513. Effect of Subordination Provisions; Termination.
Notwithstanding anything contained herein to the contrary,
other than as provided in the immediately succeeding sentence, all the
provisions of this Indenture shall be subject to the provisions of this
Article, so far as the same may be applicable thereto.
Notwithstanding anything contained herein to the contrary, the
provisions of this Article Fifteen shall be of no further effect, and the
Securities shall no longer be subordinated in right of payment to the prior
payment of Senior Indebtedness, if the Company shall have delivered to the
Trustee a notice to such effect. Any such notice delivered by the Company
shall not be deemed to be a supplemental indenture for purposes of Article
Twelve hereof.
_________________________
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above
written.
FLORIDA POWER & LIGHT COMPANY
By: _________________________
ATTEST:
__________________________________
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), TRUSTEE
By: ___________________________
ATTEST:
__________________________________
STATE OF FLORIDA
COUNTY OF PALM BEACH ss.:
On the _____ day of _______________, in the year 1995, before me
personally came ____________________, to me known, who, being by me duly
sworn, did depose and say that he resides at
______________________________________________________; that he is the
_____________________________________________ of FLORIDA POWER & LIGHT
COMPANY, one of the corporations described in and which executed the above
instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed
by order of the Board of Directors of said corporation, and that he signed
his name thereto by like order.
I HEREBY CERTIFY, that on this _____ day of _______________, 1995,
before me personally appeared ____________ and ____________, respectively,
the _____________ and __________________ of FLORIDA POWER & LIGHT COMPANY,
a corporation under the laws of the State of Florida, to me known to be the
persons described in and who executed the foregoing instrument and
severally acknowledged the execution thereof to be their free act and deed
as such officers, for the uses and purposes therein mentioned; and that
they affixed thereto the official seal of said corporation, and that said
instrument is the act and deed of said corporation.
____________________ and ____________________ produced Florida
Driver's License No. _______________ and Florida Driver's License No.
_______________ as identification, respectively.
WITNESS my signature and official seal at Juno Beach, in the County
of Palm Beach, and State of Florida, the day and year last aforesaid.
___________________________________
_______________
Notary Public, State of Florida
Commission No. _________
My Commission Expires __________
STATE OF NEW YORK
COUNTY OF NEW YORK ss.:
On the ___ day of __________, in the year 1995, before me
personally came ___________________________________, to me known, who,
being by me duly sworn, did depose and say that he resides at
____________________________________________________; that he is
a ______________________ of THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), one of the corporations described in and which executed the
above instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed
by order of the Board of Directors of said corporation, and that he signed
his name thereto by like order.
I HEREBY CERTIFY, that on this ___ day of __________,
1995, before me personally appeared _____________________ and
_______________________, respectively, a _________________ and an
___________________ of THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), a
corporation under the laws of the state of New York, to me known to be the
persons described in and who executed the foregoing instrument and
severally acknowledged the execution thereof to be their free act and deed
as such officers, for the uses and purposes therein mentioned; and that
they affixed thereto the official seal of said corporation, and that said
instrument is the act and deed of said corporation.
__________________________ and _________________________
produced ____________________ Driver's License No. _________________ and
___________________ Driver's License No. ______________________, as
identification, respectively.
WITNESS my signature and official seal at New York City,
in the County of New York, and State of New York, the day and year last
aforesaid.
___________________________________
_______________
Notary Public, State of New York
Commission No. ______________
Qualified in __________________
My Commission Expires _________
Exhibit 4(k)
FLORIDA POWER & LIGHT COMPANY
EXCERPTS FROM THE UNANIMOUS CONSENT
OF THE FINANCE COMMITTEE OF THE
BOARD OF DIRECTORS IN LIEU OF MEETING
RESOLVED, that:
(i) the securities of the first series to be issued under
the Subordinated Indenture dated as of June ___, 1995 (the "Subordinated
Indenture") from the Company to The Chase Manhattan Bank (National
Association), trustee (the "Subordinated Indenture Trustee") shall be
designated "___% Quarterly Income Debt Securities (Subordinated Deferrable
Interest Debentures, Due _____)" (the "Debentures"); all capitalized terms
used in these resolutions which are not defined herein but are defined in
the Subordinated Indenture shall have the meanings set forth in the
Subordinated Indenture;
(ii) the Debentures shall be limited in aggregate principal
amount to $125,000,000 at any time Outstanding;
(iii) the Debentures shall mature and the principal shall be
due and payable together with all accrued and unpaid interest thereon on
____________________;
(iv) the Debentures shall bear interest from the date of
original issuance (which is anticipated to be ____________________), at the
rate of _____% per annum payable in equal quarterly installments, in
arrears, on March 31, June 30, September 30 and December 31 of each year
(each, an "Interest Payment Date") commencing September 30, 1995. The
amount of interest payable for any such period will be computed on the
basis of a 360-day year of twelve 30-day months and for any period shorter
than a full calendar month, on the basis of the actual number of days
elapsed in such period. Interest on the Debentures will accrue from, and
including, the date of original issuance to, and including, the first
Interest Payment Date, and thereafter will accrue, from, and excluding, the
last Interest Payment Date through which interest has been paid. No
interest will accrue on the Debentures with respect to the day on which the
Debentures mature. In the event that any Interest Payment Date is not a
Business Day, then payment of interest payable on such date will be made on
the next succeeding day which is a Business Day (and without any interest
or other payment in respect of such delay), except that, if such Business
Day is in the next succeeding calendar year, such payment shall be made on
the immediately preceding Business Day, in each case with the same force
and effect as if made on the Interest Payment Date;
(v) each installment of interest on a Debenture shall be
payable to the Person in whose name such Debenture is registered at the
close of business 15 calendar days next preceding the corresponding
Interest Payment Date (the "Regular Record Date") for the Debentures. Any
installment of interest on the Debentures not punctually paid or duly
provided for shall forthwith cease to be payable to the Holders of such
Debentures on such Regular Record Date, and may be paid to the Persons in
whose name the Debentures are registered at the close of business on a
Special Record Date to be fixed by the Subordinated Indenture Trustee for
the payment of such Defaulted Interest, notice whereof shall be given to
the Holders of the Debentures not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Debentures may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Subordinated Indenture;
(vi) the principal and each installment of interest on the
Debentures shall be payable at the office or agency of the Company in The
City of New York. The Subordinated Indenture Trustee will initially be the
Paying Agent and the Registrar for the Debentures;
(vii) the Debentures will be redeemable on or prior to
February 28, 1997 at the option of the Company, in whole or in part, upon
not less than 30 nor more than 60 days' notice, at 108% of the principal
amount redeemed plus accrued and unpaid interest, if any, to the Redemption
Date; and thereafter at 100% of the principal amount redeemed plus accrued
and unpaid interest, if any, to the Redemption Date; provided, however,
that none of the Debentures shall be redeemed prior to March 1, 1997, if
such redemption is for the purpose, or in anticipation, of refunding such
Debentures through the use, directly or indirectly, of funds borrowed by
the Company at an effective interest cost to the Company (calculated in
accordance with acceptable financial practice) of less than 8.2102% per
annum.
(viii) the Debentures shall be issuable in denominations of
$25 and any integral multiple thereof;
(ix) so long as any Debentures are Outstanding, the failure
of the Company to pay interest on any Debentures within 60 days after the
same becomes due and payable (whether or not payment is prohibited by the
provisions of Article Fifteen of the Subordinated Indenture) shall
constitute an Event of Default; provided, however, that a valid extension
of the interest payment period by the Company as contemplated in Section
312 of the Subordinated Indenture and paragraph (x) of these Resolutions
shall not constitute a failure to pay interest for this purpose;
(x) pursuant to Section 312 of the Subordinated Indenture,
the Company shall have the right, at any time and from time to time during
the term of the Debentures, so long as no Event of Default shall have
occurred and be continuing to extend the interest payment period of such
Debentures to a period not exceeding 20 consecutive quarterly interest
payment periods (the "Extended Interest Payment Period"), on the last
Business Day of which Extended Interest Payment Period, the Company shall
pay all interest then accrued and unpaid (together with interest thereon at
the rate specified for the Debentures to the extent permitted by applicable
law); provided, that, during such Extended Interest Payment Period, the
Company shall not declare or pay any dividend on, or redeem, purchase,
acquire or make a distribution or liquidation payment with respect to, any
of its preferred stock (regardless of par value), preference stock or
common stock from time to time outstanding, except that the Company may
make mandatory sinking fund payments with respect to its 6.84% Preferred
Stock, Series Q and 8.625% Preferred Stock, Series R. Prior to the
termination of any such Extended Interest Payment Period, the Company may
further extend the interest payment period, provided that such Extended
Interest Payment Period, together with all such previous and further
extensions thereof, may not exceed 20 consecutive quarterly interest
payment periods or extend beyond the Stated Maturity of the Debentures.
Upon the termination of any Extended Interest Payment Period and upon the
payment of all amounts then due, the Company may elect another Extended
Interest Payment Period. No interest during an Extended Interest Payment
Period, except at the end thereof, shall be due and payable;
(xi) the Company shall give the Holders of the Debentures
and the Subordinated Indenture Trustee written notice of its election of
such Extended Interest Payment Period prior to the earlier of (i) two
Business Days prior to the Regular Record Date for the next Interest
Payment Date to occur with respect to such election or (ii) the date the
Company is required to give notice to the New York Stock Exchange or other
applicable self-regulatory organization of the Regular Record Date or
Interest Payment Date. The quarter in which any notice is given pursuant
to this paragraph shall constitute one of the 20 quarters which comprise
the maximum Extended Interest Payment Period;
(xii) the Debentures shall have such other terms and
provisions as are provided in the form set forth in Exhibit A hereto, and
shall be issued in substantially such form; and
(xiii) clause (b) of the first paragraph of Section 1502 of
the Subordinated Indenture shall read as follows with respect to the
Debentures:
"(b) subject to the provisions of Section 1503, that (i) a
default shall have occurred with respect to the payment of principal of or
interest on or other monetary amounts due and payable on any Senior
Indebtedness, or (ii) there shall have occurred a default (other than a
default in the payment of principal or interest or other monetary amounts
due and payable) in respect of any Senior Indebtedness, as defined therein
or in the instrument under which the same is outstanding, permitting the
holder or holders thereof to accelerate the maturity thereof (with notice
or lapse of time, or both), such default shall have continued beyond the
period of grace, if any, in respect thereof, and either 90 days shall not
have elapsed after the expiration of such grace period or the maturity of
such Senior Indebtedness shall have been accelerated because of such
default and such acceleration shall not have been rescinded or annulled,
and in the cases of subclauses (i) and (ii) of this clause (b), such
default shall not have been cured or waived or shall not have ceased to
exist, or"; and further
RESOLVED, that the Chairman of the Board, the President, any
Vice President, the Treasurer or any Assistant Treasurer of the Company
are, and each of them is, authorized to establish additional terms of the
Debentures in accordance with the Subordinated Indenture and to execute and
deliver an Officer's Certificate to the Subordinated Indenture Trustee
containing such additional terms or modifying the foregoing terms.
Exhibit 4(l)
FLORIDA POWER & LIGHT COMPANY
OFFICER'S CERTIFICATE
REGARDING COMPANY ORDER 1 D 1
____________________________, the ____________________________ of Florida
Power & Light Company (the "Company"), pursuant to the authority granted in
the accompanying Board Resolutions (all capitalized terms used herein which
are not defined herein but are defined in the Subordinated Indenture
referred to below, shall have the meanings specified in the Subordinated
Indenture), does hereby certify to The Chase Manhattan Bank (National
Association), as Trustee under the Indenture (for Unsecured Subordinated
Debt Securities) of the Company dated as of June __, 1995 (the
"Subordinated Indenture") that:
1. The first series of the Securities to be issued under the Subordinated
Indenture shall have the title "_____% Quarterly Income Debt Securities
(Subordinated Deferrable Interest Debentures, Due _____)" ("Debentures")
and will bear interest from, and including, __________ at the rate of
_____%.
2. The form of Debentures shall be substantially in the form of
Exhibit A.
3. [ADDITIONAL TERMS MAY BE INSERTED HERE].
4. The undersigned has read the accompanying Company Order and Board
Resolutions and all of the covenants or conditions contained in
Sections 303, 301, 201, and 102 of the Subordinated Indenture relating
thereto and the definitions in the Subordinated Indenture relating thereto.
5. The statements contained in this certificate are based upon the
familiarity of the undersigned with the Subordinated Indenture, the
documents accompanying this certificate, and upon discussions by the
undersigned with officers and employees of the Company familiar with the
matters set forth herein.
6. In the opinion of the undersigned, he or she has made such examination
or investigation as is necessary to express an informed opinion whether or
not such covenants or conditions have been complied with.
7. In the opinion of the undersigned, such covenants and conditions have
been complied with.
Dated: _________________________________, 1995
____________________________
Title
Exhibit 4(m)
NO._______________
CUSIP NO.__________
[FORM OF FACE OF DEBENTURES]
[LOGO] FLORIDA POWER & LIGHT COMPANY
__% Quarterly Income Debt Securities
(Subordinated Deferrable Interest Debentures, due _____)
Florida Power & Light Company, a corporation duly organized and
existing under the laws of the State of Florida (herein referred to as the
"Company", which term includes any successor Person under the Indenture),
for value received, hereby promises to pay to
____________________________________, or registered assigns, the principal
sum of ____________________ Dollars on ________________, and to pay
interest on said principal sum from, and including, ____________________ or
from, and excluding, the last Interest Payment Date through which interest
has been paid or duly provided for, in equal quarterly installments, in
arrears, on March 31, June 30, September 30 and December 31 of each year,
commencing September 30, 1995 at the rate of _____% per annum until the
principal hereof is paid or made available for payment. The amount of
interest payable on any Interest Payment Date shall be computed on the
basis of a 360-day year of twelve 30-day months and for any period shorter
than a full calendar month, on the basis of the actual number of days
elapsed in such period. In the event that any Interest Payment Date is not
a Business Day, then payment of interest payable on such Interest Payment
Date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on such Interest Payment
Date. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record
Date for such interest, which shall be the close of business 15 calendar
days next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to
the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less
than 10 days prior to such Special Record Date, or be paid at any time in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture referred to on the reverse hereof.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City and State of New York,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Florida Power & Light Company
By: ______________________________
ATTEST:
___________________________________
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), AS TRUSTEE
By: ______________________________
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF DEBENTURES]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of June ______, 1995, as amended
(herein called the "Indenture", which term shall have the meaning assigned
to it in such instrument), between the Company and The Chase Manhattan Bank
(National Association), as Trustee (herein called the Trustee, which term
includes any successor trustee under the Indenture), and reference is
hereby made to the Indenture, including the Resolutions and Officer's
Certificate filed with the Trustee on ________________, 1995 creating the
series designated on the face hereof, for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the
Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered.
This Security is one of the series designated on the face hereof, limited
in aggregate principal amount to $125,000,000.
The Securities of this series will be redeemable on or prior to
February 28, 1997 at the option of the Company, in whole or in part, upon
not less than 30 nor more than 60 days' notice by mail at 108% of the
principal amount redeemed, plus accrued and unpaid interest, if any, to
the Redemption Date; and thereafter at 100% of the principal amount
redeemed plus accrued and unpaid interest, if any, to the Redemption Date
but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holder of such Security, or one or
more Predecessor Securities, of record at the close of business on the
related Regular Record Date referred to on the face hereof, all as provided
in the Indenture; provided, however, that none of the Securities of this
series shall be redeemed prior to March 1, 1997, if such redemption is for
the purpose, or in anticipation, of refunding such Security of this series
through the use, directly or indirectly, of funds borrowed by the Company
at an effective interest cost to the Company (calculated in accordance with
acceptable financial practice) of less than 8.2102% per annum.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinated and subject in right of payment to the prior
payment in full of all Senior Indebtedness, and this Security is issued
subject to the provisions of the Indenture with respect thereto. Each
Holder of this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints
the Trustee his attorney-in-fact for any and all such purposes. Each
Holder hereof, by his acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such Holder upon said
provisions.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security upon compliance with certain
conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may
be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to
be affected under the Indenture at any time by the Company and the Trustee
with the consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a
receiver or trustee or for any other remedy thereunder, unless such Holder
shall have previously given the Trustee written notice of a continuing
Event of Default with respect to the Securities of this series, the Holders
of not less than a majority in aggregate principal amount of the Securities
of this series at the time Outstanding shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default as
Trustee and offered the Trustee reasonable indemnity, and the Trustee shall
not have received from the Holders of a majority in aggregate principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the
Holder of this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the respective due
dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.
The Company shall have the right at any time and from time to time
during the term of the Securities of this series, so long as an Event of
Default has not occurred and is not continuing, to extend the interest
payment period of such Securities to a period not exceeding 20 consecutive
quarterly interest payment periods (the "Extended Interest Payment
Period"), on the last Business Day of which Extended Interest Payment
Period, the Company shall pay all interest then accrued and unpaid
(together with interest thereon at the rate specified for the Securities of
this series to the extent that payment of such interest is enforceable
under applicable law); provided that, during such Extended Interest Payment
Period, the Company shall not declare or pay any dividend on, or redeem,
purchase, acquire or make a distribution or liquidation payment with
respect to, any of its capital stock, except that the Company may make
mandatory sinking fund payments with respect to its 6.84% Preferred Stock,
Series Q and 8.625% Preferred Stock, Series R. The Company may prepay at
any time all or any portion of the interest accrued during an Extended
Interest Payment Period. Prior to the termination of any such Extended
Interest Payment Period, the Company may further extend the interest
payment period, provided that such Extended Interest Payment Period,
together with all such previous and further extensions thereof, may not
exceed 20 consecutive quarterly interest payment periods or extend beyond
the Stated Maturity of the Securities of this series. Upon the termination
of any such Extended Interest Payment Period and upon the payment of all
amounts then due, the Company may elect another Extended Interest Payment
Period. No interest during the Extended Interest Payment Period, except on
the last Business Day of such Extended Interest Payment Period, shall be
due and payable.
The Securities of this series are issuable only in registered form
without coupons in denominations of $25 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor and of
authorized denominations, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the
absolute owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Exhibit 4(n)
LETTER OF TRANSMITTAL
To Accompany Shares of
$2.00 No Par Preferred Stock, Series A
(Involuntary Liquidation Value $25 Per Share)
of
FLORIDA POWER & LIGHT COMPANY
Tendered Pursuant to the Prospectus
Dated May ___, 1995
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON JUNE ___, 1995, UNLESS THE EXCHANGE OFFER IS EXTENDED.
The Exchange Agent is:
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION)
BY HAND: BY OVERNIGHT COURIER:
Office Hours: 9:00 a.m. 5:00 p.m. c/o Chase Securities Processing
(New York City Time) Corp.
1 Chase Manhattan Plaza (Floor 1-B) Ft. Lee Executive Park
Nassau and Liberty Streets 1 Executive Drive (6th Floor)
New York, New York 10081 Ft. Lee, New Jersey 07024
BY MAIL:
Box 3032
4 Chase MetroTech Center
Brooklyn, New York 11245
Facsimile Transmission
(201) 592-4372
(For Eligible Institutions Only)
Confirm Receipt of Notice of Guaranteed Delivery by Telephone:
(201) 592-4370
Shareholder Inquiries:
(800) 355-2663 (Toll Free)
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE
NUMBER OTHER THAN ONE LISTED ABOVE WILL NOT CONSTITUTE A VALID
DELIVERY.
List below the shares of Preferred Stock to which this
Letter of Transmittal relates. If the space below is inadequate,
the number of shares of $2.00 Preferred Stock tendered should be
listed on a separate signed schedule attached hereto.
----------------------------------------------------------------
DESCRIPTION OF SHARES TENDERED
----------------------------------------------------------------
Name(s) and
Address(es)
of Registered Holder(s)
(Please fill in exactly as Shares Tendered
name(s) appear(s) (Attached additional signed
on certificate(s)) list if necessary)
----------------------------------------------------------------
Total Number
of Shares Number of
Certificate Represented by Shares
Number(s)* Certificate(s)* Tendered**
---------------------------------------
---------------------------------------
---------------------------------------
---------------------------------------
---------------------------------------
Total Shares
----------------------------------------------------------------
* Need not be completed by shareholders tendering by book-
entry transfer.
** Unless otherwise indicated, it will be assumed that all
Shares represented by any certificates delivered to the
Exchange Agent are being tendered. See instruction 4.
----------------------------------------------------------------
<PAGE>
The undersigned acknowledges receipt of the Prospectus dated
May ___, 1995 (the "Prospectus") of Florida Power & Light Company
(the "Company") which, together with this Letter of Transmittal
(the "Letter of Transmittal"), describes the Company's offer (the
"Exchange Offer") to exchange its _____% Quarterly Income Debt
Securities (Subordinated Deferrable Interest Debentures, Due
_____) (the "Debentures") for its 5,000,000 outstanding shares of
$2.00 No Par Preferred Stock, Series A (Involuntary Liquidation
Value $25 Per Share) (the "$2.00 Preferred Stock"). Exchanges
will be effected on the basis of $25 principal amount of
Debentures for each share of $2.00 Preferred Stock validly
tendered and accepted for exchange in the Exchange Offer.
The undersigned has checked the appropriate boxes below and
signed this Letter of Transmittal to indicate the action the
undersigned desires to take with respect to the Exchange Offer.
PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL AND THE
PROSPECTUS CAREFULLY BEFORE CHECKING ANY BOX BELOW
The Information Agent is:
GEORGESON
& COMPANY INC.
Wall Street Plaza
New York, New York 10005
BANKS AND BROKERS CALL COLLECT:
(212) 440-9800
ALL OTHERS CALL TOLL-FREE:
1-800-223-2064
DO NOT SEND ANY CERTIFICATES TO __________, __________,
GEORGESON & COMPANY INC. OR TO FLORIDA POWER & LIGHT COMPANY.
This Letter of Transmittal is to be used if certificates are
to be forwarded herewith or if delivery of Shares (as defined
below) is to be made by book-entry transfer to the Exchange
Agent's account at The Depository Trust Company ("DTC"), Midwest
Securities Trust Company ("MSTC") or Philadelphia Depository
Trust Company ("PDTC") (hereinafter collectively referred to as
the "Book-Entry Transfer Facilities") pursuant to the procedures
set forth under "The Exchange Offer - Procedures for Tendering" in
the Prospectus.
If delivery of the Shares is to be made by book-entry
transfer to an account maintained by the Exchange Agent at a
Book-Entry Transfer Facility, an Agent's Message must be received
and tenders of Shares must be effected in accordance with such
Book-Entry Transfer Facility's Automated Tender Offer Program or
other similar procedures ("ATOP") set forth in the Prospectus
under the caption "The Exchange Offer - Procedures for Tendering -
Book Entry Transfer".
The term "Agent's Message" means a message, transmitted by a
Book-Entry Transfer Facility and received by the Exchange Agent
and forming a part of a Book-Entry Confirmation (as defined in
the Prospectus) which states that such Book-Entry Transfer
Facility's has received an express acknowledgment from a
participant tendering Shares that are the subject of such Book-
Entry Confirmation, that such participant has received and agrees
to be bound by the terms of this Letter of Transmittal, and that
FPL may enforce the terms of this Letter of Transmittal against
such participant.
Unless the context requires otherwise, the term "Holder"
(a) with respect to the $2.00 Preferred Stock, means (i) any
person in whose name $2.00 Preferred Stock is registered on the
books of The First National Bank of Boston or (ii) any other
person who has obtained a properly completed stock power from the
registered Holder or (iii) any person whose beneficially-owned
shares of $2.00 Preferred Stock are held of record by a Book-
Entry Transfer Facility who desires to deliver such $2.00
Preferred Stock by book-entry transfer at a Book-Entry Transfer
Facility, and (b) with respect to any other security, means the
person in whose name such security is registered on the books of
the security registrar with respect thereto.
Holders who cannot deliver their Shares and all other
documents required hereby to the Exchange Agent by the Expiration
Date (as defined in the Prospectus) must tender their Shares
pursuant to the guaranteed delivery procedure set forth under
"The Exchange Offer - Procedures for Tendering" in the
Prospectus. See Instruction 2. Delivery of documents to the
Company or to a Book-Entry Transfer Facility does not constitute
a valid delivery.
(BOXES BELOW FOR USE BY ELIGIBLE INSTITUTIONS ONLY)
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-
ENTRY TRANSFER TO THE EXCHANGE AGENT'S ACCOUNT AT ONE OF THE
BOOK-ENTRY TRANSFER FACILITIES AND COMPLETE THE FOLLOWING:
Name of tendering institution____________________________________
Check applicable box: / / DTC / / MSTC / / PDTC
Account No.______________________________________________________
Transaction Code No._____________________________________________
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT
TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE
EXCHANGE AGENT AND COMPLETE THE FOLLOWING:
Name(s) of tendering shareholder(s)______________________________
Date of execution of Notice of Guaranteed Delivery_______________
Name of institution that guaranteed delivery_____________________
If delivery is by book entry transfer:
Name of tendering institution____________________________________
Account no. ___________________ at / / DTC / / MSTC / / PDTC
Transaction code no._____________________________________________
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
Ladies and Gentlemen:
The undersigned hereby tenders to the Company, the
above-described shares of $2.00 Preferred Stock (the "Shares")
pursuant to the Company's offer to exchange Debentures for its
5,000,000 outstanding shares of $2.00 Preferred Stock, on the
basis of $25 principal amount of Debentures for each share of
$2.00 Preferred Stock, upon the terms and subject to the
conditions of the Exchange Offer, as described in the Prospectus,
dated May __, 1995, receipt of which is hereby acknowledged, and
in this Letter of Transmittal.
Subject to, and effective upon, acceptance for exchange by
the Company of the Shares tendered herewith and the issuance of
the Debentures in exchange therefor, and in accordance with the
terms and subject to the conditions of the Exchange Offer
(including, if the Exchange Offer is extended or amended, the
terms and conditions of any such extension or amendment), the
undersigned hereby sells, assigns and transfers to, or upon the
order of, the Company all right, title and interest in and to all
the Shares that are being tendered hereby (and any and all other
Shares or other securities issued or issuable in respect thereof
on or after May __, 1995 (collectively, "Distributions")) and
constitutes and appoints the Exchange Agent the true and lawful
agent and attorney-in-fact of the undersigned with respect to
such Shares and all Distributions, with full power of
substitution (such power of attorney being an irrevocable power
coupled with an interest), to (a) deliver certificates for such
Shares and all Distributions, or transfer ownership of such
Shares and all Distributions on the account books maintained by
any of the Book-Entry Transfer Facilities, together, in any such
case, with all accompanying evidences of transfer and
authenticity, to or upon the order of the Company, (b) present
such Shares and all Distributions for registration and transfer
on the books of the Company and (c) receive all benefits and
otherwise exercise all rights of beneficial ownership of such
Shares and all Distributions, all in accordance with the terms of
the Exchange Offer.
The undersigned hereby represents and warrants that the
undersigned has full power and authority to tender, sell, assign
and transfer the Shares tendered hereby and all Distributions and
that, when and to the extent the same are accepted for exchange
by the Company, the Company will acquire good, marketable and
unencumbered title thereto, free and clear of all liens,
restrictions, charges, encumbrances, conditional sales agreements
or other obligations relating to the sale or transfer thereof,
and the same will not be subject to any adverse claims. The
undersigned will, upon request, execute and deliver any
additional documents deemed by the Exchange Agent or the Company
to be necessary or desirable to complete the sale, assignment and
transfer of the Shares tendered hereby and all Distributions.
All authority herein conferred or agreed to be conferred
shall not be affected by, and shall survive the death or
incapacity of the undersigned, and any obligations of the
undersigned hereunder shall be binding upon the heirs, personal
representatives, successors and assigns of the undersigned.
The undersigned understands that tenders of Shares pursuant
to any one of the procedures described under "The Exchange
Offer - Procedures for Tendering" in the Prospectus and in the
instructions hereto will constitute the undersigned's acceptance
of the terms and conditions of the Exchange Offer, including the
undersigned's representation and warranty that (i) the
undersigned has a net long position in the Shares being tendered
within the meaning of Rule 14e-4 promulgated under the Securities
Exchange Act of 1934, as amended, and (ii) the tender of such
Shares complies with Rule 14e-4. The Company's acceptance for
exchange of Shares tendered pursuant to the Exchange Offer will
constitute a binding agreement between the undersigned and the
Company upon the terms and subject to the conditions of the
Exchange Offer.
The undersigned recognizes that, under certain circumstances
set forth in the Exchange Offer, the Company may terminate or
amend the Exchange Offer or may not be required to accept tender
of any of the Shares tendered hereby. In such event, the
undersigned understands that certificate(s) for any Shares not
accepted for tender will be returned to the undersigned.
Unless otherwise indicated under "Special Issuance
Instructions," please register beneficial ownership of the
Debentures being issued in exchange for the Shares tendered
and/or return any Shares not tendered or not exchanged, in the
name(s) of the undersigned (and, in the case of Shares tendered
by book-entry transfer, by credit to the account at the
Book-Entry Transfer Facility designated above). Similarly,
unless otherwise indicated under "Special Delivery Instructions,"
please mail the Debentures in exchange for the Shares tendered
and/or any certificates for Shares not tendered or not exchanged
(and accompanying documents, as appropriate) to the undersigned
at the address shown below the undersigned's signature(s). In
the event that both "Special Issuance Instructions" and "Special
Delivery Instructions" are completed, please register beneficial
ownership of the Debentures being issued, and deliver any cash
payment in exchange for the Shares tendered and/or return any
Shares not tendered or not exchanged in the name(s) of, and mail
said Debentures and/or any certificates to, the person(s) so
indicated. The undersigned recognizes that the Company has no
obligation, pursuant to the "Special Issuance Instructions," to
transfer any Shares from the name of the registered holder(s)
thereof if the Company does not accept for exchange any of the
Shares so tendered.
______________________
/ / IF ANY OF THE CERTIFICATES REPRESENTING THE SHARES THAT YOU
OWN HAVE BEEN LOST OR DESTROYED, CHECK THIS BOX AND SEE
INSTRUCTION 12. PLEASE FILL OUT THE REMAINDER OF THIS LETTER OF
TRANSMITTAL AND INDICATE HERE THE NUMBER OF SHARES REPRESENTED BY
THE LOST OR STOLEN CERTIFICATES. ___________ (NUMBER OF SHARES)
<PAGE>
_________________________________________________________________
SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 2, 5, 6 and 7)
_________________________________________________________________
To be completed ONLY if beneficial ownership of the
Debentures issuable upon exchange of Shares tendered and/or
certificates for Shares not tendered or not exchanged are to be
issued in the name of someone other than the undersigned.
Issue / / beneficial ownership of Debentures and/or / /
certificate(s) to:
Name____________________________________________________________
________________________________________________________________
(Please print)
Address_________________________________________________________
________________________________________________________________
(Include Zip Code)
________________________________________________________________
(Taxpayer Identification or Social Security No.)
________________________________________________________________
________________________________________________________________
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 5, 6 and 7)
________________________________________________________________
To be completed ONLY if the Debentures and the Payment in
Lieu of Accumulated Dividends issuable upon exchange of Shares
tendered and/or certificates for Shares not tendered or not
exchanged are to be mailed to someone other than the undersigned
or to the undersigned at an address other than that shown below
the undersigned's signature(s).
Mail / / Debentures and the Payment in Lieu of Accumulated
Dividends and/or / / certificate(s) to:
Name____________________________________________________________
________________________________________________________________
(Please print)
Address ________________________________________________________
________________________________________________________________
(Include Zip Code)
________________________________________________________________
<PAGE>
________________________________________________________________
NOTICE OF SOLICITED TENDERS
(See Instruction 10)
The Company will pay to any Soliciting Dealer, as defined in
Instruction 10, a solicitation fee of $_____ per $25 principal
amount of Debentures issued in respect of Shares solicited by it
and accepted in the Exchange Offer.
The undersigned represents that the Soliciting Dealer which
solicited and obtained this tender is:
Name of Firm:___________________________________________________
(Please Print)
Name of Individual Broker or Financial Consultant:______________
Identification Number (if known):_______________________________
Address: _______________________________________________________
(Include Zip Code)
THE FOLLOWING TO BE COMPLETED ONLY IF CUSTOMER'S SHARES HELD
IN NOMINEE NAME ARE TENDERED.
NAME OF BENEFICIAL OWNER NUMBER OF SHARES TENDERED
(ATTACH ADDITIONAL LIST IF NECESSARY)
____________________________ _________________________
____________________________ _________________________
____________________________ _________________________
The acceptance of compensation by such Soliciting Dealer
will constitute a representation by it that: (i) it has complied
with the applicable requirements of the Securities Exchange Act
of 1934, as amended, and the applicable rules and regulations
thereunder, in connection with such solicitation; (ii) it is
entitled to such compensation for such solicitation under the
terms and conditions of the Exchange Offer; (iii) in soliciting
tenders of Shares, it has used no soliciting materials other than
those furnished by the Company; and (iv) if it is a foreign
broker or dealer not eligible for membership in the National
Association of Securities Dealers, Inc. (the "NASD"), it has
agreed to conform to the NASD's Rules of Fair Practice in making
solicitations.
The payment of compensation to any Soliciting Dealer is
dependent on the return of a Notice of Solicited Tenders to the
Exchange Agent.
________________________________________________________________
<PAGE>
________________________________________________________________
TENDERING HOLDER(S) SIGN HERE
(See Instructions 5, 6 and 8)
(Please Complete Substitute Form W-9 Below)
________________________________________________________________
Signature(s) of Holder(s)
________________________________________________________________
Dated_________________________, 1995
Name(s)_________________________________________________________
(Please Print)
________________________________________________________________
Capacity (full title)___________________________________________
Address _______________________________________________________
(Include Zip Code)
________________________________________________________________
Area Code and Telephone No._____________________________________
Taxpayer Identification No._____________________________________
(Must be signed by the registered holder(s) exactly as name(s)
appear(s) on the stock certificate(s) or on a security position
listing or by person(s) authorized to become registered holder(s)
by certificates and documents transmitted herewith. If signature
is by a trustee, executor, administrator, guardian, attorney-in-
fact, officer of a corporation or other person acting in a
fiduciary or representative capacity, please set forth full title
and see Instruction 5.)
GUARANTEE OF SIGNATURE(S)
(See Instructions 1 and 5)
(If Required)
Name of Firm_____________________________________________________
Authorized Signature_____________________________________________
Dated ________________________, 1995
_________________________________________________________________
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. GUARANTEE OF SIGNATURES. Except as otherwise provided
below, all signatures on this Letter of Transmittal must be
guaranteed by a firm that is a member of a registered national
securities exchange or the National Association of Securities
Dealers, Inc., (the "NASD") or by a commercial bank or trust
company having an office or correspondent in the United States
which is a participant in an approved Signature Guarantee
Medallion Program (an "Eligible Institution"). Signatures on this
Letter of Transmittal need not be guaranteed (a) if this Letter
of Transmittal is signed by the registered holder(s) of the
Shares (which term, for purposes of this document, shall include
any participant in one of the Book Entry Transfer Facilities
whose name appears on a security position listing as the owner of
Shares) tendered herewith and such holder(s) have not completed
the box entitled "Special Issuance Instructions" or the box
entitled "Special Delivery Instructions" on this Letter of
Transmittal or (b) if such Shares are tendered for the account of
an Eligible Institution. See Instruction 5.
2. DELIVERY OF LETTER OF TRANSMITTAL AND SHARES. This
Letter of Transmittal is to be used either if certificates are to
be forwarded herewith or if delivery of Shares is to be made by
book-entry transfer pursuant to the procedures set forth under
"The Exchange Offer - Procedures for Tendering" in the Prospectus.
Certificates for all physically delivered Shares, or a
confirmation of a book-entry transfer into the Exchange Agent's
account at one of the Book-Entry Transfer Facilities of all
Shares delivered electronically, as well as a properly completed
and duly executed Letter of Transmittal (or facsimile thereof)
and any other documents required by this Letter of Transmittal
must be received by the Exchange Agent at one of its addresses
set forth on the front page of this Letter of Transmittal on or
prior to the Expiration Date (as defined in the Prospectus).
Shareholders who cannot deliver their Shares and all other
required documents to the Exchange Agent on or prior to the
Expiration Date must tender their Shares pursuant to the
guaranteed delivery procedure set forth under "The Exchange
Offer - Procedures for Tendering" in the Prospectus. Pursuant to
such procedure: (a) such tender must be made by or through an
Eligible Institution, (b) a properly completed and duly executed
Notice of Guaranteed Delivery in the form provided by the Company
(with any required signature guarantees) must be received by the
Exchange Agent on or prior to the Expiration Date and (c) the
certificates for all physically delivered Shares, or a
confirmation of a book-entry transfer into the Exchange Agent's
account at one of the Book-Entry Transfer Facilities of all
Shares delivered electronically, as well as a properly completed
and duly executed Letter of Transmittal (or facsimile thereof)
and any other documents required by this Letter of Transmittal
must be received by the Exchange Agent within five New York Stock
Exchange, Inc. trading days after the date of execution of such
Notice of Guaranteed Delivery, all as provided under "The
Exchange Offer - Procedures or Tendering" in the Prospectus.
THE METHOD OF DELIVERY OF SHARES AND ALL OTHER REQUIRED
DOCUMENTS IS AT THE OPTION AND RISK OF THE TENDERING
SHAREHOLDERS. IF CERTIFICATES FOR SHARES ARE SENT BY MAIL,
REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED,
IS RECOMMENDED.
No alternative, conditional or contingent tenders will be
accepted. See "The Exchange Offer - Terms of the Exchange Offer"
in the Prospectus. By executing this Letter of Transmittal (or
facsimile thereof), the tendering Holder waives any right to
receive any notice of the acceptance for exchange of the Shares.
3. INADEQUATE SPACE. If the space provided herein is
inadequate, the certificate numbers and/or the number of Shares
should be listed on a separate schedule attached hereto.
4. PARTIAL TENDERS. If fewer than all the Shares
represented by any certificate delivered to the Exchange Agent
are to be tendered, fill in the number of Shares that are to be
tendered in the box entitled "Number of Shares Tendered." In such
case, a new certificate for the remainder of the Shares
represented by the old certificate will be sent to the person(s)
signing this Letter of Transmittal, unless otherwise provided in
the "Special Issuance Instructions" or "Special Delivery
Instructions" boxes on this Letter of Transmittal, as promptly as
practicable following the expiration or termination of the
Exchange Offer (or, in the case of Shares tendered by book-entry
transfer, such Shares will be credited to an account maintained
at a Book-Entry Transfer Facility). All Shares represented by
certificates delivered to the Exchange Agent will be deemed to
have been tendered unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL; STOCK POWERS AND
ENDORSEMENTS. If this Letter of Transmittal is signed by the
registered holder(s) of the Shares tendered hereby, the
signature(s) must correspond with the name(s) as written on the
face of the certificates without alteration, enlargement or any
change whatsoever.
If any of the Shares tendered hereby is held of record by
two or more persons, all such persons must sign this Letter of
Transmittal.
If any of the Shares tendered hereby is registered in
different names on different certificates, it will be necessary
to complete, sign and submit as many separate Letters of
Transmittal as there are different registrations of certificates.
If this Letter of Transmittal is signed by the registered
holder(s) of the Shares tendered hereby, no endorsements of
certificates or separate stock powers are required unless
beneficial ownership of Debentures issued in exchange for such
Shares is to be registered in the name of, or Shares not tendered
or not exchanged are to be registered in the name of, any person
other than the registered holder(s). Signatures on any such
certificates or stock powers must be guaranteed by an Eligible
Institution. See Instruction 1.
If this Letter of Transmittal is signed by a person other
than the registered holder(s) of the Shares tendered hereby,
certificates must be endorsed or accompanied by appropriate stock
powers, in either case, signed exactly as the name(s) of the
registered holder(s) appear(s) on the certificates for such
Shares. Signature(s) on any such certificates or stock powers
must be guaranteed by an Eligible Institution. See Instruction
1.
If this Letter of Transmittal or any certificate or stock
power is signed by a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or other person acting
in a fiduciary or representative capacity, such person should so
indicate when signing, and proper evidence satisfactory to the
Company of the authority of such person so to act must be
submitted.
6. STOCK TRANSFER TAXES. The Company will pay or cause to
be paid any stock transfer taxes with respect to the exchange and
transfer of any Shares to it or its order pursuant to the
Exchange Offer. If, however, beneficial ownership of Debentures
issued in exchange for Shares tendered is to be registered in the
name of, or Shares not tendered or not exchanged are to be
registered in the name of, any person other than the registered
holder(s), or if tendered Shares are registered in the name of
any person other than the person(s) signing this Letter of
Transmittal, the amount of any stock transfer taxes (whether
imposed on the registered holder(s), such other person or
otherwise) payable on account of the transfer to such person will
be charged directly to the registered holder unless satisfactory
evidence of the payment of such taxes, or exemption therefrom, is
submitted. See "Fees and Expenses; Transfer Taxes" in the
Prospectus. EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL
NOT BE NECESSARY TO AFFIX TRANSFER TAX STAMPS TO THE CERTIFICATES
REPRESENTING SHARES TENDERED HEREBY.
7. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If
beneficial ownership of the Debentures issuable upon exchange of
Shares is to be registered in the name of, and/or any Shares not
tendered or not exchanged are to be returned to, a person other
than the person(s) signing this Letter of Transmittal or if the
Debentures issuable upon exchange of Shares and/or any
certificates for Shares not tendered or not exchanged are to be
mailed to someone other than the person(s) signing this Letter of
Transmittal or to an address other than that shown above in the
box captioned "Description of Shares Tendered," then the boxes
captioned "Special Issuance Instructions" and/or "Special
Delivery Instructions" on this Letter of Transmittal should be
completed. Shareholders tendering Shares by book-entry transfer
will have any Shares not accepted for exchange returned by
crediting the account maintained by such shareholder at the
Book-Entry Transfer Facility from which such transfer was made.
8. SUBSTITUTE FORM W-9 AND FORM W-8. The tendering
shareholder is required to provide the Exchange Agent with either
a correct Taxpayer Identification Number ("TIN") on Substitute
Form W-9, which is provided under "Important Tax Information"
below, or a properly completed Form W-8. Failure to provide the
information on either Substitute Form W-9 or Form W-8 may subject
the tendering shareholder to 31% federal income tax backup
withholding on payments with respect to the Debentures. The box
in Part 2 of Substitute Form W-9 may be checked if the tendering
shareholder has not been issued a TIN and has applied for a
number or intends to apply for a number in the near future. If
the box in Part 2 is checked and the Exchange Agent is not
provided with a TIN by the time of exchange, the Exchange Agent
will withhold 31% on all payments thereafter until a TIN is
provided to the Exchange Agent.
9. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Any
questions or requests for assistance may be directed to the
Information Agent or the Dealer Managers at their respective
telephone numbers and addresses listed below. Requests for
additional copies of the Prospectus, this Letter of Transmittal
or other tender offer materials may be directed to the
Information Agent or the Dealer Managers and such copies will be
furnished promptly at the Company's expense. Shareholders may
also contact their local broker, dealer, commercial bank or trust
company for assistance concerning the Exchange Offer.
10. SOLICITED TENDERS. The Company will pay a solicitation
fee of $_____ per $25 principal amount of Debentures issued in
respect of Shares tendered and accepted for exchange pursuant to
the Exchange Offer, covered by the Letter of Transmittal which
designates, in the box captioned "Notice of Solicited Tenders,"
as having solicited and obtained the tender, the name of (i) any
broker or dealer in securities, including the Dealer Managers in
their capacity as dealers or brokers, which is a member of any
national securities exchange or of the NASD, (ii) any foreign
broker or dealer not eligible for membership in the NASD which
agrees to conform to the NASD's Rules of Fair Practice in
soliciting tenders outside the United States to the same extent
as though it were an NASD member, or (iii) any bank or trust
company (each of which is referred to herein as a "Soliciting
Dealer"). No such fee shall be payable to a Soliciting Dealer
with respect to the tender of Shares by a holder unless the
Letter of Transmittal accompanying such tender designates such
Soliciting Dealer or, in the case of guaranteed delivery, a
Notice of Solicited Tenders, properly completed and duly executed
by such Soliciting Dealer, is received by the Exchange Agent
within the time specified in the Prospectus. No such fee shall
be payable to a Soliciting Dealer if such Soliciting Dealer is
required for any reason to transfer the amount of such fee to a
depositing Holder (other than itself). No such fee shall be
payable to a Soliciting Dealer with respect to shares of $2.00
Preferred Stock tendered for such Soliciting Dealer's own
account. No broker, dealer, bank, trust company or fiduciary
shall be deemed to be the agent of the Company, the Exchange
Agent, the Information Agent or the Dealer Managers for purposes
of the Exchange Offer except that in any jurisdiction where the
securities, blue sky, or other laws require the Exchange Offer to
be made by or through a licensed broker or dealer, the Exchange
Offer is being made on behalf of the Company by the Dealer
Manager or one or more registered brokers or dealers licensed
under the law of such jurisdiction.
11. IRREGULARITIES. All questions as to the form of
documents and the validity, eligibility (including time of
receipt) and acceptance of any tender of Shares will be
determined by the Company, in its sole discretion, and its
determination shall be final and binding. The Company reserves
the absolute right to reject any and all tenders of Shares that
it determines are not in proper form or the acceptance for
exchange of or exchange for Shares that may, in the opinion of
the Company's counsel, be unlawful. The Company also reserves
the absolute right to waive any of the conditions to the Exchange
Offer or any defect or irregularity in any tender of Shares and
the Company's interpretation of the terms and conditions of the
Exchange Offer (including these instructions) shall be final and
binding. Unless waived, any defects or irregularities in
connection with tenders must be cured within such time as the
Company shall determine. None of the Company, the Dealer
Managers, the Exchange Agent, the Information Agent or any other
person shall be under any duty to give notice of any defect or
irregularity in tenders, nor shall any of them incur any
liability for failure to give any such notice. Tenders will not
be deemed to have been made until all defects and irregularities
have been cured or waived by the Company.
12. LOST, DESTROYED OR STOLEN CERTIFICATES. If any
certificate representing Shares has been lost, destroyed or
stolen, the Holder should promptly notify the Exchange Agent.
The Holder will then be instructed as to the steps that must be
taken in order to replace the certificate. This Letter of
Transmittal and related documents cannot be processed until the
procedures for replacing a lost or destroyed certificate have
been followed.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A FACSIMILE COPY
THEREOF) TOGETHER WITH CERTIFICATES OR CONFIRMATION OF BOOK-ENTRY
TRANSFER AND ALL OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY THE
EXCHANGE AGENT, OR THE NOTICE OF GUARANTEED DELIVERY MUST BE
RECEIVED BY THE EXCHANGE AGENT, ON OR PRIOR TO THE EXPIRATION
DATE (AS DEFINED IN THE PROSPECTUS).
IMPORTANT TAX INFORMATION
INFORMATION REPORTING AND BACKUP WITHHOLDING
In general, payments to a U.S. Holder of principal and
interest with respect to the Debentures, and payments to a U.S.
Holder of the proceeds of the sale of the Debentures, will be
subject to U.S. information reporting requirements. Subject to
certain exceptions, such payments will be subject to U.S. backup
withholding at a rate of 31% unless the U.S. Holder provides a
taxpayer identification number ("TIN"). The TIN is the Holder's
social security number in the case of an individual and the
employer identification number in the case of corporations and
other entities. If the Shares are in more than one name or are
not in the name of the actual owner, consult the enclosed
Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 for additional guidance.
In general, payments to a non-U.S. Holder of principal and
interest with respect to the Debentures, and the proceeds of the
sale of the Debentures, will be subject to U.S. information
reporting requirements and U.S. backup withholding tax at a rate
of 31%, unless the non-U.S. Holder certifies its non-U.S. status
under penalties of perjury or otherwise establishes an exemption.
Backup withholding is not an additional tax. Rather, the
federal income tax liability of persons subject to backup
withholding will be reduced by the amount of the tax withheld.
If withholding results in an overpayment of taxes, a refund may
be obtained.
METHOD OF PROVIDING TIN AND CERTIFYING NON-U.S. STATUS
A U.S. shareholder must notify the Exchange Agent of his or
her correct TIN by completing the Substitute Form W-9 attached
hereto, certifying that: (i) the TIN provided on the Substitute
Form W-9 is correct; (ii) the shareholder is not subject to
backup withholding because either (A) such shareholder has not
been notified by the Internal Revenue Service ("IRS") that backup
withholding applies, or (B) the IRS has notified the shareholder
that he or she is no longer subject to backup withholding; and
(iii) all other information provided on the Substitute W-9 is
correct.
A non-U.S. shareholder must certify as to its non-U.S.
status by submitting to the Exchange Agent a properly completed
Form W-8. A Form W-8 may be obtained from the Exchange Agent.
If the Exchange Agent is not provided with the correct TIN
or properly completed Form W-8, the shareholder may be subject to
a $50 penalty imposed by the IRS.
<PAGE>
________________________________________________________________
Payer's Name:
________________________________________________________________
SUBSTITUTE FORM W-9
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
PAYOR'S REQUEST FOR TAXPAYER IDENTIFICATION
NUMBER (TIN) AND CERTIFICATION
PART 1 - PLEASE PROVIDE YOUR TIN IN THE BOX AT RIGHT AND
CERTIFY BY SIGNING AND DATING BELOW
Social Security Number OR
Employee Identification Number TIN______________________________
Name (Please Print) ____________________________________________
Address ________________________________________________________
City _________________________ State _________ Zip Code_________
PART 2 - Awaiting TIN / /
PART 3 - CERTIFICATION UNDER THE PENALTIES OF PERJURY, I
CERTIFY THAT:
(1) the number shown on this form is my correct taxpayer
identification number (or a TIN has not been issued to me but I
have mailed or delivered an application to receive a TIN or
intend to so in the near future).
(2) I am not subject to backup withholding either because I have
not been notified by the Internal Revenue Service (the "IRS")
that I am subject to backup withholding as a result of a failure
to report all interest or dividends or the IRS has notified me
that I am no longer subject to backup withholding, and
(3) all other information provided on this form is true, correct
and complete.
SIGNATURE _____________________________ DATE:___________________
You must cross out item (2) above if you have been notified by
the IRS that you are currently subject to backup withholding
because of underreporting interest or dividends on your tax
return.
_________________________________________________________________
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN
BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU
PURSUANT TO THE EXCHANGE OFFER. PLEASE REVIEW THE
ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR
ADDITIONAL DETAILS. YOU MUST COMPLETE THE FOLLOWING
CERTIFICATE IF YOU CHECKED THE BOX IN PART 2 OF THE
SUBSTITUTE FORM W-9.
________________________________________________________________
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer
identification number has not been issued to me and either (1) I
have mailed or delivered an application to receive a taxpayer
identification number to the appropriate Internal Revenue Service
Center or Social Security Administration Office or (2) I intend
to mail or deliver an application in the near future. I
understand that if I do not provide a taxpayer identification
number by the time of payment, 31% of all payments made to me
will be withheld until I provide a number.
SIGNATURE ______________________________ DATE:____________, 1995
________________________________________________________________
The Information Agent is:
GEORGESON
& COMPANY INC.
Wall Street Plaza
New York, New York 10005
BANKS AND BROKERS CALL COLLECT:
(212) 440-9800
ALL OTHERS CALL TOLL-FREE:
1-800-223-2064
THE DEALER MANAGERS ARE:
___________
___________
___________
___________
___________
___________
___________
___________
EXHIBIT 5(a)
[STEEL HECTOR & DAVIS]
May 18, 1995
Florida Power & Light Company
700 Universe Boulevard
Juno Beach, Florida 33408
Ladies and Gentlemen:
As counsel for Florida Power & Light Company, a Florida
corporation (the "Company"), we have participated in the
preparation and filing of a registration statement on Form S-4 to
be filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, on or about the date hereof
(the "Registration Statement") in connection with the proposed
offering of up to $125,000,000 in principal amount of
Subordinated Deferrable Interest Debentures (the "Debentures") to
be issued pursuant to the terms of an Indenture from the Company
to The Chase Manhattan Bank (National Association), as trustee
(the "Indenture"). In connection therewith, we have reviewed
such documents and records as we have deemed necessary to enable
us to express an opinion on the matters covered hereby.
Based on the foregoing, we are of the opinion that, when the
Indenture has been executed and delivered and when the Debentures
are issued and delivered for the consideration and in the manner
contemplated in the Registration Statement, the Debentures will
be valid, legal and binding obligations of the Company, except as
such may later be limited by bankruptcy, insolvency or other laws
affecting creditors' rights generally and by general equity
principles.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement. We also consent to the
reference to us in the prospectus included in the Registration
Statement under the caption "Legal Matters".
We are members of the Florida Bar and this opinion is
limited to the laws of Florida and the federal laws of the United
States. As to all matters of New York law, we have relied, with
your consent, upon the opinion of even date herewith rendered to
you by Reid & Priest LLP, New York, New York. As to all matters
of Florida law, Reid & Priest LLP is hereby authorized to rely
upon this opinion as though it were rendered to it.
Very truly yours,
/s/ Steel Hector & Davis
STEEL HECTOR & DAVIS
Exhibit 5(b)
REID & PRIEST LLP
A New York Registered Limited Liability Partnership
40 WEST 57TH STREET
NEW YORK, NEW YORK
TELEPHONE 212 603-2000
FAX 212 603-2298
New York, New York
May 18, 1995
Florida Power & Light Company
700 Universe Boulevard
Juno Beach, Florida 33408
Ladies and Gentlemen:
As counsel for Florida Power & Light Company, a Florida
corporation (the "Company"), we have participated in the
preparation and filing of a registration statement on Form S-4 to
be filed with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended, on or about date hereof
(the "Registration Statement") in connection with the proposed
offering of up to $125,000,000 in principal amount of
Subordinated Deferrable Interest Debentures (the "Debentures") to
be issued pursuant to the terms of an indenture from the Company
to The Chase Manhattan Bank (National Association), as trustee
(the "Indenture"). In connection therewith, we have reviewed such
documents and records as we have deemed necessary to enable us to
express an opinion on the matters covered hereby.
Based upon the foregoing, we are of the opinion that,
when the Indenture has been executed and delivered, and the
Debentures are issued and delivered, for the consideration and in
the manner contemplated in the Registration Statement, the
Debentures will be valid, legal and binding obligations of the
Company, except as such may later be limited by bankruptcy,
insolvency or other laws affecting creditors' rights generally
and by general equity principles.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the reference to us
in the prospectus included in the Registration Statement under
the caption "Legal Matters".
We are members of the New York Bar and this opinion is
limited to the laws of the State of New York and the federal laws
of the United States. As to all matters of Florida law, we have
relied, with your consent, upon the opinion of even date herewith
rendered to you by Steel, Hector & Davis, West Palm Beach,
Florida. As to all matters of New York law, Steel, Hector & Davis
is authorized to rely upon this opinion as if it were addressed
to it.
Very truly yours,
/s/ Reid & Priest LLP
REID & PRIEST LLP
EXHIBIT 8
REID & PRIEST LLP
A New York Registered Limited Liability Partnership
40 WEST 57TH STREET
NEW YORK, NEW YORK 10019-4097
TELEPHONE 212 603-2000
FAX 212 603-2298
New York, New York
May 18, 1995
Florida Power & Light Company
700 Universe Boulevard
Juno Beach, Florida 33408
Ladies and Gentlemen:
We refer you to the prospectus, with a subject to
completion date of May 18, 1995 (the "Prospectus"), which
constitutes part of the registration statement on Form S-4, to be
filed with the Securities and Exchange Commission on or about the
date hereof by Florida Power & Light Company pursuant to the
Securities Act of 1933, as amended.
We are of the opinion that the statements under the
caption "Certain United States Federal Income Tax Consequences"
in the Prospectus constitute an accurate description, in general
terms, of certain U.S. federal income tax considerations that may
be relevant to the prospective purchasers of the Debentures (as
defined in the Prospectus).
We hereby consent to the filing of this opinion in
connection with such registration statement.
Very truly yours,
/s/ Reid & Priest LLP
REID & PRIEST LLP
Exhibit 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Florida Power & Light Company ("FPL") on Form S-4 of our
report dated February 10, 1995 appearing in FPL's Annual Report on Form
10-K for the year ended December 31, 1994 and to the reference to us
under the heading "Experts" in the Prospectus which is part of this
Registration Statement.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Miami, Florida
May 16, 1995
Exhibit 25
Securities Act of 1933 File No. _________
(If application to determine eligibility of trustee
for delayed offering pursuant to Section 305 (b) (2))
________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)___________
__________________
THE CHASE MANHATTAN BANK
(National Association)
(Exact name of trustee as specified in its charter)
13-2633612
(I.R.S. Employer Identification Number)
1 CHASE MANHATTAN PLAZA, NEW YORK, NEW YORK
(Address of principal executive offices)
10081
(Zip Code)
________________
FLORIDA POWER & LIGHT COMPANY
(Exact name of obligor as specified in its charter)
FLORIDA
(State or other jurisdiction of incorporation or organization)
59-0247775
(I.R.S. Employer Identification No.)
700 UNIVERSE BOULEVARD
JUNO BEACH, FLORIDA
(Address of principal executive offices)
33408
(Zip Code)
__________________________________
DEBT SECURITIES
(Title of the indenture securities)
_________________________________________________________________
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of The Federal Reserve
System, Washington, D. C.
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee,
describe each such affiliation.
The Trustee is not the obligor, nor is the Trustee
directly or indirectly controlling, controlled by, or
under common control with the obligor.
(See Note on Page 2.)
Item 16. List of Exhibits.
List below all exhibits filed as a part of this statement
of eligibility.
*1. -- A copy of the articles of association of the trustee as
now in effect .(See Exhibit T-1 (Item 12) ,
Registration No. 33-55626.)
*2. -- Copies of the respective authorizations of The Chase
Manhattan Bank (National Association) and The Chase
Bank of New York (National Association) to commence
business and a copy of approval of merger of said
corporations, all of which documents are still in
effect. (See Exhibit T-1 (Item 12), Registration No.
2-67437.)
*3. -- Copies of authorizations of The Chase Manhattan Bank
(National Association) to exercise corporate trust
powers, both of which documents are still in effect.
(See Exhibit T-1 (Item 12), Registration No. 2-
67437).
*4. -- A copy of the existing by-laws of the trustee. (See
Exhibit T-1 (Item 12(a)), Registration No. 33-28806.)
*5. -- A copy of each indenture referred to in Item 4, if the
obligor is in default. (Not applicable).
*6. -- The consents of United States institutional trustees
required by Section 321(b) of the Act. (See Exhibit
T-1, (Item 12), Registration No. 22-19019.)
7. -- A copy of the latest report of condition of the
trustee published pursuant to law or the requirements
of its supervising or examining authority.
___________________
*The Exhibits thus designated are incorporated herein by
reference. Following the description of such Exhibits is a
reference to the copy of the Exhibit heretofore filed with the
Securities and Exchange Commission, to which there have been no
amendments or changes.
___________________
1.
<PAGE>
NOTE
Inasmuch as this Form T-1 is filed prior to the
ascertainment by the trustee of all facts on which to base a
responsive answer to Item 2 the answer to said Item is based on
incomplete information.
Item 2 may, however, be considered as correct unless
amended by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, the trustee, The Chase Manhattan Bank (National
Association), a corporation organized and existing under the
laws of the United States of America, has duly caused this
statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized , all in the City of New
York, and the State of New York, on the 7th day April, 1995.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By /s/ Valerie Dunbar
-----------------------
Valerie Dunbar
Second Vice President
_________________
2.
<PAGE>
Exhibit 7
---------
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the
THE CHASE MANHATTAN BANK, N.A.
of New York in the State of New York, at the close of
business on December 31, 1994, published in response
to call made by Comptroller of the Currency, under
title 12, United States Code, Section 161.
Charter Number 2370
Comptroller of the Currency Northeastern District
Statement of Resources and Liabilities
Thousands
ASSETS of Dollars
Cash and balances due
from depository institutions:
Noninterest-bearing balances
and currency and coin $ 4,517,179
Interest-bearing balances 7,001,642
Held to maturity securities 1,593,325
Available-for-sale securities 4,669,255
Federal funds sold and securities
purchased under agreements to
resell in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
Federal funds sold 3,651,850
Securities purchased under
agreements to resell 0
Loans and lease financing receivable:
Loans and leases, net of
unearned income $ 50,879,818
LESS: Allowance for loan
and lease losses 1,073,196
LESS: Allocated transfer
risk reserve 0
------------
Loans and leases, net of
unearned income, allowance,
and reserve 49,806,622
Assets held in trading accounts 13,112,807
Premises and fixed assets
(including capitalized leases) 1,758,500
Other real estate owned 480,982
Investments in unconsolidated
subsidiaries and associated
companies 55,722
Customers' liability to this
bank on acceptances outstanding 611,839
Intangible assets 787,948
Other assets 6,145,452
------------
TOTAL ASSETS $ 94,193.123
============
LIABILITIES
Deposits:
In domestic offices $ 29,536,028
Noninterest-bearing $ 11,648,377
Interest-bearing 17,887,651
------------
In foreign offices,
Edge and Agreement
subsidiaries, and IBFs 36,020,612
Noninterest-bearing $ 2,320,293
Interest-bearing 33,700,319
------------
Federal funds purchased and
securities sold under
agreements to repurchase
in domestic offices of the
bank and of its Edge and
Agreement subsidiaries,
and in IBFs:
Federal funds purchased 1,014,936
Securities sold under
agreements to repurchase 678,033
Demand notes issued to the
U.S. Treasury 300,000
Trading liabilities 8,066,477
Other borrowed money:
With original maturity of
one year or less 2,940,252
With original maturity of
more than one year 427,525
Mortgage indebtedness and
obligations under capitalized
leases 40,550
Bank's liability on acceptances
executed and outstanding 616,531
Subordinated notes and
debentures 2,360,000
Other liabilities 5,195,890
------------
TOTAL LIABILITIES 87,196,834
------------
Limited-life preferred
stock and related surplus 0
EQUITY CAPITAL
Perpetual preferred stock
and related surplus 0
Common stock 915,576
Surplus 4,656,010
Undivided profits and
capital reserves 1,478,713
Net unrealized holding
gains (losses) on
available-for-sale
securities (64,959)
Cumulative foreign currency
translation adjustments 10,949
------------
TOTAL EQUITY CAPITAL 6,996,289
------------
TOTAL LIABILITIES,
LIMITED-LIFE PREFERRED
STOCK, AND EQUITY CAPITAL $ 94,193,123
============
I, Lester J. Stephens, Jr., Senior Vice President and Controller
of the above named bank do hereby declare that this Report of
Condition is true and correct to the best of my knowledge and
belief.
(Signed) Lester J. Stephens, Jr.
We the undersigned directors, attest to the correctness of this
statement of resources and liabilities. We declare that it has
been examined by us, and to the best of our knowledge and belief
has been prepared in conformance with the instructions and is
true and correct.
(Signed) Thomas G. Labrecque
(Signed) Richard J. Boyle Directors
(Signed) Donald H. Trautlein
EXHIBIT 99 (a)
EXCHANGE AGENT AGREEMENT
May ___, 1995
The Chase Manhattan Bank (National Association)
1 Chase Manhattan Plaza
New York, New York 10081
Dear Sirs:
Florida Power & Light Company, a Florida corporation (the "Company"),
has made an offer to exchange its ___% Quarterly Income Debt Securities
(Subordinated Deferrable Interest Debentures, Due _____) (the "Debentures")
for its 5,000,000 outstanding shares of $2.00 No Par Preferred Stock,
Series A (Involuntary Liquidation Value $25 Per Share) (the "$2.00
Preferred Stock"), upon the terms and subject to the conditions set forth
in the Prospectus dated May __, 1995 (the "Prospectus"), and set forth in
the Letter of Transmittal and related correspondences (the "Letter of
Transmittal", which, together with the Prospectus, constitutes the
"Exchange Offer"). All terms not defined herein shall have the same
meaning as in the Prospectus.
You hereby agree to act as Exchange Agent in connection with the
Exchange Offer. You hereby agree that, in carrying out your duties as
Exchange Agent in connection with the Exchange Offer, you are agent for the
holders of shares of the Company's $2.00 Preferred Stock and not in any way
agent for the Company or any affiliate of the Company, although the Company
shall pay your fees and expenses. You also hereby agree that your
authority and actions as Exchange Agent shall be governed by the terms of
the Prospectus, the Letter of Transmittal and this Agreement and that you
shall act as follows in connection with the tender of shares of $2.00
Preferred Stock:
1. Receipt of $2.00 Preferred Stock and Related Materials.
------------------------------------------------------
(a) You shall receive certificates for shares of $2.00 Preferred
Stock (or Confirmations (as defined in Section 2(c) hereof)
relating to shares of $2.00 Preferred Stock), accompanied by
Letters of Transmittal (or facsimiles thereof) properly executed
in accordance with the instructions therein, Notices of
Guaranteed Delivery (as defined in Section 2(c) hereof), any
requisite collateral documents and all other instruments and
communications submitted to you in connection with the Exchange
Offer, and you shall preserve the same until delivered to the
Company or otherwise disposed of in accordance with the Company's
instructions.
(b) All Confirmations, Letters of Transmittal, Notices of
Guaranteed Delivery, telegrams, facsimile transmissions, notices,
letters and other materials submitted to you (except certificates
for shares of $2.00 Preferred Stock) pursuant to the Exchange
Offer shall be stamped by you to show the date and time of
receipt thereof, and these documents, or copies thereof, shall be
preserved by you for a reasonable time not to exceed one year or
the termination of the Exchange Offer, whichever is longer, and
thereafter shall be delivered by you to the Company. Thereafter,
any inquiries relating to or requests for any of the foregoing
shall be directed solely to the Company and not the Exchange
Agent.
2. Conditions for Valid Tender.
---------------------------
(a) Tenders of shares of $2.00 Preferred Stock may be made only
as set forth in the Prospectus, and shares of $2.00 Preferred
Stock shall be considered validly tendered to you only if:
(i) you receive certificates for such shares of $2.00
Preferred Stock (or a Confirmation relating to such shares
of $2.00 Preferred Stock) and a properly completed and duly
executed Letter of Transmittal (or facsimile thereof)
relating thereto prior to the Expiration Date (as defined in
Section 7 hereof), and you receive a final determination of
the adequacy of the items received as provided in Section 4
hereof from the Company) or
(ii) you receive a Notice of Guaranteed Delivery relating to
such shares of $2.00 Preferred Stock from an Eligible
Institution (as defined in paragraph (c) below) prior to the
Expiration Date and you receive certificates for such shares
of $2.00 Preferred Stock (or a Confirmation relating to such
shares of $2.00 Preferred Stock) and either a properly
completed and duly executed Letter of Transmittal (or
facsimile thereof) relating thereto on or prior to 5:00 p.m.
New York City time, or in the case of shares of $2.00
Preferred Stock, five New York Stock Exchange, Inc. trading
days after the date of execution of such Notice of
Guaranteed Delivery, and you receive a final determination
of the adequacy of the items received as provided in
Section 4 hereof from the Company.
(b) Notwithstanding the provisions of paragraph (a) above,
shares of $2.00 Preferred Stock which the Company shall approve,
in writing, as having been validly tendered shall be considered
to be validly tendered.
(c) For the purposes of this Agreement, (i) a "Confirmation"
shall be a confirmation of book-entry transfer of shares of $2.00
Preferred Stock into your account at the Depository Trust Company
(hereinafter "DTC" which, for purposes of this Agreement, shall
also be deemed to include, a reference to the Midwest Securities
Trust Company and Philadelphia Depository Trust Company) to be
established and maintained by you in accordance with Section 3
hereof; (ii) a "Notice of Guaranteed Delivery" shall be a notice
of guaranteed delivery substantially in the form attached as
Exhibit C hereto, received by you by hand or by mail or by a
telegram, facsimile transmission or letter substantially in such
form, or if sent by DTC, a message transmitted through electronic
means in accordance with the usual procedures of DTC and the
Exchange Agent, substantially in such form; provided, however,
-------- -------
that if such notice is sent by DTC through electronic means, it
must state that DTC has received an express acknowledgement from
the participant on whose behalf such notice is given that such
participant has received and agrees to become bound by the form
of such notice; and (iii) an "Eligible Institution" shall be a
member firm of a national securities exchange registered with the
Securities and Exchange Commission or of the National Association
of Securities Dealers, Inc., or a commercial bank or trust
company having an office, branch or agency in the United States.
3. Book-Entry Transfers. You shall establish and maintain an
--------------------
account at DTC for book-entry transfers of shares of $2.00 Preferred Stock,
as set forth in the Letter of Transmittal and the Prospectus, and you shall
comply with the provisions of Rule 17Ad-14 under the Securities Exchange
Act of 1934, as amended.
4. Examination of Tenders.
----------------------
(a) You shall examine each Letter of Transmittal (or facsimile
thereof), certificate for shares of $2.00 Preferred Stock,
Confirmation, Notice of Guaranteed Delivery and any other
document transmitted, delivered or mailed to you by, or on behalf
of, a holder of shares of $2.00 Preferred Stock to ascertain that
(i) each such Letter of Transmittal (or facsimile thereof) is
duly executed and properly completed in accordance with the
instructions set forth therein, (ii) each such Notice of
Guaranteed Delivery and each such other document are duly
executed and properly completed in accordance with the
instructions set forth in the Prospectus and the related Letter
of Transmittal, (iii) all documents that are required to
accompany the Letter of Transmittal and certificates for shares
of $2.00 Preferred Stock or otherwise to be submitted have been
completely and properly transmitted, delivered or mailed to you
and (iv) the shares of $2.00 Preferred Stock otherwise have been
properly tendered in accordance with the instructions in the
Prospectus and the related Letter of Transmittal.
(b) You need not pass on the legal sufficiency of any signature
or verify any signature guarantee, although you are to ascertain
whether each signature or signature guarantee required to appear
on the Letter of Transmittal (or facsimile thereof) does so
appear.
(c) You are not authorized to accept any defective, alternative,
conditional or contingent tender, or tender of fractional shares
except as provided in the Prospectus, the related Letter of
Transmittal or this Agreement, unless you shall have received
from the Company the Letter of Transmittal which was surrendered,
duly dated and signed by an authorized officer of the Company,
indicating that any defect or irregularity in such tender has
been cured or waived and that such tender has been accepted by
the Company.
(d) In the event any Letter of Transmittal (or facsimile
thereof), any Notice of Guaranteed Delivery or any other required
document has been improperly completed, executed or transmitted,
or any certificate for shares of $2.00 Preferred Stock is not in
proper form for transfer (as required by the instructions set
forth in the Letter of Transmittal), or if some other
irregularity in connection with tendering or acceptance of shares
of $2.00 Preferred Stock exists, you shall endeavor, after
consulting with the Company, to take such action as may be
reasonably necessary to cause such irregularity to be corrected.
You are authorized to request from any person tendering shares of
$2.00 Preferred Stock such additional documents or undertakings
as you may deem appropriate, and you are authorized to request
resubmission by any such tendering stockholder, Eligible
Institution or DTC, as the case may be, of a defective or
incomplete Letter of Transmittal (or a facsimile thereof), Notice
of Guaranteed Delivery or other documents. You shall also
diligently attempt to determine proper taxpayer identification
numbers in the event that such numbers have been omitted from the
relevant documents.
(e) If any such irregularity cannot be corrected, after
consulting with the Company you shall return the certificate(s)
for shares of $2.00 Preferred Stock involved or cause the
transfer of such shares of $2.00 Preferred Stock into the account
at DTC of the person tendering them, as the case may be, and
return any related documents to the person tendering them (in the
manner prescribed in Section 13 hereof).
(f) All questions as to the validity, form, eligibility
(including time of receipt) and acceptance of any tender of
shares of $2.00 Preferred Stock, including questions as to the
proper completion or execution of any Letter of Transmittal (or
facsimile thereof), Notice of Guaranteed Delivery or other
required documents and as to the proper form for transfer of any
certificate for shares of $2.00 Preferred Stock, shall be
resolved by the Company, whose determination shall be final and
binding. The Company shall have the absolute right to determine
whether to reject any or all tenders not in proper or complete
form or to waive any irregularities or conditions, and the
Company's interpretation of the Prospectus, the Letter of
Transmittal and the instructions thereto and the Notice of
Guaranteed Delivery (including without limitation the
determination of whether any tender is complete and proper) shall
be final and binding.
(g) You agree to maintain accurate records as to all shares of
$2.00 Preferred Stock tendered prior to or on the Expiration
Date.
5. Time of Tender.
--------------
(a) Except as otherwise herein provided, a tender shall be
deemed made at the time the certificate(s) for shares of $2.00
Preferred Stock (or a Confirmation relating to such shares of
$2.00 Preferred Stock), the Letter of Transmittal (or facsimile
thereof) relating thereto and all other required documents have
been received by you.
(b) A tender by Notice of Guaranteed Delivery shall be deemed
made on the date such Notice of Guaranteed Delivery is received
by you, provided that all other conditions, including timely
compliance with the procedures for guaranteed delivery set forth
in the Prospectus, for such a tender are met.
(c) Defective tenders shall be deemed validly made at the time
the irregularities have been cured to the satisfaction of, or
waived by, the Company.
6. Withdrawal by Tendering Stockholders. A tendering stockholder
------------------------------------
may withdraw shares of $2.00 Preferred Stock tendered as set forth in the
Prospectus, in which event, except as may be specified otherwise in the
notice of withdrawal of the stockholder pursuant to the Prospectus, all
items in your possession which shall have been received from such
stockholder with respect to such shares of $2.00 Preferred Stock shall be
returned promptly to, or upon the order of, such stockholder and the shares
of $2.00 Preferred Stock covered by such items no longer shall be
considered to be validly tendered. To be effective, a written, telegraphic
or facsimile transmission notice of withdrawal must be received by you
within the time period specified for withdrawal in the Prospectus at your
address set forth on the back page of the Prospectus. Any notice of
withdrawal must specify the name of the person having deposited the shares
of $2.00 Preferred Stock to be withdrawn, the number of shares of $2.00
Preferred Stock to be withdrawn and, if the certificates representing such
shares of $2.00 Preferred Stock have been delivered or otherwise identified
to you, the name of the registered holders of such shares of $2.00
Preferred Stock as set forth in such certificates. If the certificates
have been delivered or otherwise identified to you, then (except in the
case of shares tendered for the account of an Eligible Institution), prior
to the release of such certificates the tendering stockholder must also
submit to you the serial numbers shown on the particular certificates
evidencing such shares of $2.00 Preferred Stock and the signature on the
notice of withdrawal must be guaranteed by an Eligible Institution. In the
case of shares of $2.00 Preferred Stock tendered pursuant to procedures for
book-entry transfer, any notice of withdrawal must also specify the name
and number of the account at DTC to be credited with withdrawn shares of
$2.00 Preferred Stock. You are authorized and directed to examine any
notice of withdrawal to determine whether you believe any such notice may
be defective. In the event you conclude that any such notice is defective
you shall, after consultation with and on the instructions of the Company,
use reasonable efforts in accordance with your regular procedures to notify
the person delivering such notice of such determination. All questions as
to the form and validity (including time of receipt) of notices of
withdrawal will be determined by the Company in its sole discretion, whose
determination shall be final and binding. Any shares of $2.00 Preferred
Stock so withdrawn shall no longer be considered to be validly tendered
unless such shares of $2.00 Preferred Stock are re-tendered prior to the
Expiration Date pursuant to the Exchange Offer.
7. Expiration. The Exchange Offer will expire on the date and at
----------
the time specified in the Prospectus (the "Initial Expiration Date"),
unless extended by the Company (the Initial Expiration Date or, if the
Exchange Offer has been extended, the latest date and time to which the
Exchange Offer has been extended is herein referred to as the "Expiration
Date"). The Company shall notify you, orally or in writing, of any
extension of the Exchange Offer prior to the time the Exchange Offer
otherwise would have expired (any such oral notification to be confirmed in
writing but effective immediately).
8. Termination. If at anytime the Exchange Offer shall be
-----------
terminated in accordance with the terms thereof, the Company shall promptly
notify you, orally or in writing, of such termination and the time thereof
(any such oral notification to be confirmed in writing but effective
immediately). If such termination shall occur, all shares of $2.00
Preferred Stock tendered to you prior to the time of such termination
(except such of the shares of $2.00 Preferred Stock as shall have been paid
for by the Company prior to the effectiveness of such termination) and all
items then or thereafter in your possession which relate to such shares of
$2.00 Preferred Stock shall be returned promptly to, or upon the order of,
the respective holders of such shares of $2.00 Preferred Stock.
9. Information and Reports.
-----------------------
(a) By 11:00 a.m., New York City time, on each business day (or
more frequently if requested) after the commencement of the
Exchange Offer, you shall communicate by telephone to each of the
following persons the information set forth in Exhibit D hereto:
(i) the Company;
(ii) the "Dealer Managers"
(iii) the Company's counsel; and
(iv) such other person(s), by such means, as any of the
foregoing may designate.
Promptly thereafter you shall send such information in a written report to
each such person.
(b) You shall furnish to the Company, upon request, master lists
of shares of $2.00 Preferred Stock tendered for exchange,
including an A-to-Z list of the tendering stockholders.
(c) You shall not provide persons other than those mentioned in
(or designated in accordance with the provisions of) paragraphs
(a) and (b) above with any information not contained in the
Prospectus and the Letter of Transmittal. In no event shall you
---------------------
make any recommendation, either directly or indirectly, regarding
-----------------------------------------------------------------
the advisability of tendering shares of $2.00 Preferred Stock
-------------------------------------------------------------
pursuant to the Exchange Offer. If you receive requests for
------------------------------
copies of the Prospectus, Letter of Transmittal, or other
Exchange Offer materials, you shall advise persons making such
requests that copies of such documents can be obtained from the
Company, the Information Agent, or the Dealer Managers at the
addresses set forth on the back cover of the Prospectus.
(d) You shall provide to the Company, the Dealer Managers,
Winthrop Stimson Putnam & Roberts, counsel to the Dealer
Managers, and such other persons as any of them may designate,
with access to your offices and to those persons on your staff
who are responsible for receiving tenders in order to ensure
that, immediately prior to any Expiration Date, the Company shall
receive sufficient information to enable it to decide whether to
extend the Exchange Offer.
10. Acceptance and Exchange.
-----------------------
(a) The Company shall notify you, orally or in writing, of the
number of shares of $2.00 Preferred Stock, if any, which have
been accepted for exchange and the date or dates on which the
exchange for such exchanged shares of $2.00 Preferred Stock shall
be made (each such date being referred to as a "Exchange Date").
Any such oral notification shall be confirmed in writing but
shall be effective immediately.
(b) Subject to the provisions of paragraphs (c) and (d) below,
on each Exchange Date you shall:
(i) deliver or cause to be delivered to the person
specified in each Letter of Transmittal relating to
exchanged shares of $2.00 Preferred Stock $25 principal
amount of Debentures and the Payment in Lieu of Accumulated
Dividend as specified in the Exchange Offer (less any
adjustment required by the Exchange Offer and Letter of
Transmittal and less the amount of any stock transfer taxes
that under the provisions of Instruction 6 of the Letter of
Transmittal are to be deducted with respect to the exchange,
as set forth in Section 11 below) for each such exchanged
Preferred Share; and
(ii) cause the transfer of the exchanged shares of $2.00
Preferred Stock referred to in clause (b) (i) above, into
such name or names and in such denominations, and deliver or
cancel or otherwise dispose of the new certificates in
respect thereof, as the Company may by written notice to you
direct.
(c) With respect to shares of exchanged shares of $2.00
Preferred Stock that have been delivered by book-entry transfer
into your account at DTC, on each Exchange Date you shall:
(i) subject to the provisions of paragraph (e) below,
deliver or cause to be delivered to DTC $25 principal amount
of Debentures and the Payment in Lieu of Accumulated
Dividend, in such manner as shall be acceptable to DTC, as
specified in the Exchange Offer (less any adjustment
required by the Exchange Offer and the Letter of Transmittal
and less the amount of any stock transfer taxes which under
the provisions of Instruction 6 of the Letter of Transmittal
are to be deducted with respect to such exchange, as set
forth in Section 11 below) for each such exchanged Preferred
Share; and
(ii) cause the transfer of the exchanged shares of $2.00
Preferred Stock referred to in clause (c) (i) above, in
accordance with written instructions from the Company.
(d) No exchange shall be made as to any shares of $2.00
Preferred Stock until a certificate or certificates representing
such shares of $2.00 Preferred Stock (or a Confirmation relating
to such shares of $2.00 Preferred Stock, in the case of shares of
$2.00 Preferred Stock to be exchanged for in accordance with
paragraph (c) above), a properly completed and duly executed
Letter of Transmittal (or facsimile thereof) relating thereto and
all other required documents are physically received by you.
(e) On the date of delivery of Debentures and the Payment in
Lieu of Accumulated Dividend delivered or caused to be delivered
to DTC pursuant to paragraph (c) above and Debentures and the
Payment in Lieu of Accumulated Dividend delivered at your window,
the Company shall deposit or cause to be deposited with you, a
principal amount of Debentures and cash representing the Payment
in Lieu of Accumulated Dividend equal to the aggregate principal
amount of Debentures and the Payment in Lieu of Accumulated
Dividend delivered to DTC pursuant to paragraph (c) above and
Debentures and the Payment in Lieu of Accumulated Dividend
delivered at your window on such date of delivery.
(f) On each Exchange Date, you will inform the Company of the
aggregate amount of Debentures and the Payment in Lieu of
Accumulated Dividend delivered or caused to be delivered by you
not described in paragraph (c) above. The Company shall deposit,
or cause to be deposited with you, a principal amount of
Debentures and cash representing the Payment in Lieu of
Accumulated Dividend equal to the aggregate principal amount of
Debentures and the Payment in Lieu of Accumulated Dividend so
delivered.
(g) The Company will deposit with or transfer to you on your
request immediately available funds in an amount equal to the
stock transfer taxes, if any, payable in respect of the transfer
to the Company or its nominee or nominees of all shares of $2.00
Preferred Stock so exchanged. Upon request by the Company, you
will apply to the proper authorities for the refund of money paid
on account of such transfer taxes. On receipt of such refund,
you will promptly pay over to the Company all money so refunded.
You shall not use any such funds to set off any other amounts
which may be due to you or your affiliates from the Company or
its affiliates.
11. Deduction of Stock Transfer Taxes with Respect to the Exchange;
---------------------------------------------------------------
Substitute Form 1099-B.
----------------------
(a) If beneficial ownership of Debentures issued in exchange for
shares of $2.00 Preferred Stock tendered is to be registered in
the name of, or shares of $2.00 Preferred Stock not tendered or
not exchanged are to be registered in the name of, any person
other than the registered holder, or if tendered shares of $2.00
Preferred Stock are registered in the name of any person other
than the person signing the Letter of Transmittal, you shall
deduct the amount of any stock transfer taxes (whether imposed on
the registered holder or such other person) payable on account of
the transfer to such person from the exchange of such shares of
$2.00 Preferred Stock if satisfactory evidence of the payment of
such taxes or exemption therefrom is not submitted.
(b) On or before January 31st of the year following the year in
which the Company accepts shares of $2.00 Preferred Stock for
exchange, you will prepare and mail to each tendering stockholder
whose shares of $2.00 Preferred Stock were accepted, other than
stockholders who demonstrate their status as nonresident aliens
in accordance with applicable United States Treasury Regulations
("Foreign Stockholders"), a Form 1099-B reporting the gross
proceeds from the exchange of shares of $2.00 Preferred Stock as
of the date such shares of $2.00 Preferred Stock are accepted for
exchange. For this purpose, "gross proceeds" means only the
amount of any cash received in the exchange. You will also
prepare and file copies of such Forms 1099-B by magnetic tape
with the Internal Revenue Service in accordance with the Treasury
Regulations on or before February 28th of the year following the
year in which the shares of $2.00 Preferred Stock are accepted
for exchange.
(c) You will deduct and withhold 31% backup withholding tax from
the gross proceeds received with respect to shares of $2.00
Preferred Stock tendered by any stockholder, other than a Foreign
Stockholder, who has not properly provided you with his taxpayer
identification number, in accordance with Treasury Regulations or
is otherwise subject to backup withholding pursuant to the
Treasury Regulations or is otherwise subject to backup
withholding pursuant to the Treasury Regulations.
(d) Should any issue arise regarding federal income tax
reporting or withholding, you will take such action as the
Company instructs you in writing.
12. Return of $2.00 Preferred Stock. If, pursuant to the Prospectus
-------------------------------
and the Letter of Transmittal, the Company does not accept for exchange
certain shares of $2.00 Preferred Stock tendered, you shall return promptly
the certificates for such shares of $2.00 Preferred Stock (or cause the
transfer of such shares of $2.00 Preferred Stock into the account at DTC of
the person who deposited such shares of $2.00 Preferred Stock, as the case
may be), together with a notice or letter furnished and without expense to
such persons. If any such shares of $2.00 Preferred Stock were tendered or
purported to be tendered by means of a Confirmation, you shall notify DTC
that transmitted said Confirmation of the Company's decision not to accept
the shares of $2.00 Preferred Stock.
13. Delivery of Debentures and Share Certificates. All Debentures
---------------------------------------------
exchanged for Exchanged Shares, other than Debentures delivered at your
window or to DTC, shall be forwarded and all certificates for shares of
$2.00 Preferred Stock not exchanged shall be forwarded to the tendering
stockholder (a) by first class mail under a blanket surety bond protecting
you and the Company from loss or liability arising out of the nonreceipt or
nondelivery of such certificates for shares of $2.00 Preferred Stock or (b)
by registered mail, insured separately for the replacement value of such
certificates for shares of $2.00 Preferred Stock. However, it is
understood that when certificates for shares of $2.00 Preferred Stock are
being transported by a common carrier, such carrier's insurance policies
may provide coverage in lieu of such blanket bond coverage.
14. Fees to Brokers, Bonds and Others. You are not authorized to pay
---------------------------------
or offer to pay any concessions or commissions to brokers, dealers, banks
or other persons or to engage or utilize any persons to solicit tenders or
to pay any person, including without limitation the Dealer Managers, any
soliciting fees.
15. Compensation of Exchange Agent. For your services as Exchange
------------------------------
Agent hereunder you shall be entitled to compensation as set forth in
Exhibit E hereto.
16. Duties of Exchange Agent. As Exchange Agent hereunder you:
------------------------
(a) shall have no duties or obligations other than those
specifically set forth herein (including the Exhibits attached
hereto) or those as to which you and the Company subsequently may
agree in writing; provided, however, that you shall take all
-------- -------
reasonable action with respect to the Exchange Offer as may from
time to time be requested by the Company. You are authorized to
cooperate with and furnish information to the Dealer Managers or
their representatives or any other organization (or its
representatives) designated from time to time by the Company, in
any manner reasonably requested by the Company in connection with
the Exchange Offer and tenders thereunder;
(b) shall not be regarded as making any representations as to,
and shall have no responsibility for, the validity, sufficiency,
value or genuineness of any certificates for shares of $2.00
Preferred Stock or any Confirmations relating to the shares of
$2.00 Preferred Stock deposited with you or tendered pursuant to
the Exchange Offer in the exercise of reasonable diligence on
your part and you shall not be required to, and you shall not,
make any representations as to the validity, sufficiency, value
or genuineness of the Exchange Offer;
(c) shall not initiate any legal action hereunder without the
prior written approval of the Company, and where the taking of
legal action might in your judgment subject or expose you to any
expense or liability, you shall not be required to act unless you
shall have been furnished with an indemnity satisfactory to you;
(d) may rely on, and shall be protected in acting in reliance
upon, any certificate, instrument, opinion, notice, letter,
facsimile transmission, telegram or any document or other
security delivered to you and in good faith believed by you to be
genuine and to have been signed by the proper party or parties;
(e) may rely on and shall be protected in acting in reliance
upon the oral or written instructions of any executive officer of
the Company or any other employee or representative of the
Company designated by any such executive officer, with respect to
any matter relating to your actions as Exchange Agent;
(f) may consult counsel satisfactory to you (including the
Company's counsel), and the written advice or opinion of such
counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by you
hereunder in good faith and in accordance with such advice or
opinion of such counsel;
(g) shall not at any time advise any person tendering shares of
$2.00 Preferred Stock pursuant to the Exchange Offer as to the
wisdom of making such tender or as to the market value of any
shares of $2.00 Preferred Stock tendered. If such advice is
requested of you, you shall respond that you are not authorized
to give such advice and shall recommend that the person
requesting such advice consult his or her own investment advisor
or broker; and
(h) shall have no obligation to exchange Debentures for any
tendered shares of $2.00 Preferred Stock unless the Company shall
have made available to you Debentures exchangeable with respect
thereto.
17. Waiver of Liens. It is understood and agreed that the
---------------
securities, money or property to be deposited with or received by you as
Exchange Agent (the "Property") constitute a special, segregated amount,
held solely for the benefit of the Company and stockholders tendering
shares of $2.00 Preferred Stock, as their interests may appear, and the
Property shall not be commingled with the money, assets or properties of
you or any other person, firm or corporation. You hereby waive any and all
rights of lien, attachment or set-off whatsoever, if any, against the
Property so to be deposited, whether such rights arise by reason of the
statutory or common law of New York, contract or otherwise.
18. Indemnity.
---------
(a) The Company hereby covenants to indemnify and hold you
harmless against any losses, damages, costs and expenses
(including reasonable fees and disbursements of your legal
counsel) which you may incur or become subject to arising from or
out of any claim or liability resulting from your actions as
Exchange Agent pursuant to this Agreement; provided, however,
-------- -------
that you shall not be indemnified or held harmless with respect
to such losses, damages, costs and expenses incurred or suffered
by you as a result, or arising out, of your negligence,
misconduct, bad faith or breach of this Agreement.
(b) In no case shall the Company be liable with respect to any
action, proceeding, suit or claim against you unless you shall
have notified the Company, by letter or by tested telex or
confirmed facsimile transmission in either case confirmed by
letter, of the written assertion of an action, proceeding, suit
or claim commenced against you, promptly after you shall have
notice of any such assertion of an action, proceeding, suit or
claim or have been served with the summons or other first legal
process giving information as to the nature and basis of the
action, proceeding, suit or claim.
(c) The Company shall be entitled to participate at its own
expense in the defense of any suit brought to enforce any such
action, proceeding, suit or claim and, if the Company so elects,
the Company shall assume the defense of any such suit. In the
event that the Company assumes such defense, the Company shall
not thereafter be liable for the fees and expenses of any
additional counsel that you retain, so long as the Company shall
retain counsel satisfactory to you, in the exercise of your
reasonable judgment, to defend such suit.
(d) You agree not to settle any claim or litigation in
connection with any claim or liability with respect to which you
may seek indemnification from the Company without the prior
written consent of the Company.
(e) Anything in this Agreement to the contrary notwithstanding,
in no event shall you be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including
lost profits), even if you have been advised of the likelihood of
such loss or damage and regardless of the form of action.
19. Authorized Persons. Set forth in Exhibit F hereto is a list of
------------------
the names and specimen signatures of the persons authorized to act for the
Company under this Agreement. The Secretary of the Company shall, from
time to time, certify to you the names and signatures of any other persons
authorized to act for the Company, as the case may be, under this
Agreement.
20. Notices. Except as expressly set forth elsewhere in this
-------
Agreement, all notices, instructions and communication under this Agreement
shall be in writing, shall be effective upon receipt and shall be
addressed, if to the Company, to:
Florida Power & Light Company
700 Universe Boulevard
Juno Beach, Florida 33408
Attention: Dilek L. Samil, Treasurer
or, if to the Exchange Agent, to:
The Chase Manhattan Bank (National Association)
1 Chase Manhattan Plaza
Floor 3-B
Nassau and Liberty Streets
New York, New York 10081
Attention: John Strain
or to such other address as a party hereto shall notify the other parties.
21. Modification. The instructions contained herein may be modified
------------
or supplemented by any executive officer of the Company authorized to give
any notice, approval or waiver on its behalf.
22. Assignment. This Agreement and the appointment as Exchange Agent
----------
hereunder shall inure to the benefit of, and the obligations created
thereby, shall be binding upon, the successors and assigns of the parties
hereto, except that you may neither assign your rights nor delegate your
duties hereunder without the prior written consent of the Company; provided
--------
that nothing in this Agreement is intended to or shall confer upon any
third party any rights, remedies or benefits of any kind whatsoever. This
Agreement may not be assigned by any party without the prior written
consent of all other parties.
23. Interpretation.
--------------
(a) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without
giving effect to conflict of laws principles.
(b) If any provision of this Agreement shall be held illegal,
invalid or unenforceable by any court, this Agreement shall be
construed and enforced as if such provision had not been
contained herein and shall be deemed an agreement between us to
the full extent permitted by applicable law.
(c) Any inconsistency between this Agreement and the terms of
the Prospectus and Letter of Transmittal, as they may from time
to time be amended, shall be resolved in favor of the Prospectus
and Letter of Transmittal, except with respect to the duties,
liabilities and rights, including without limitation compensation
and indemnification, of you as Exchange Agent, which shall be
controlled by the terms of this Agreement.
(d) Section headings have been inserted herein for convenience
of reference only, are not a part of this Agreement and shall not
be used in any way in the interpretation of any of the provisions
hereof.
24. Counterparts. This Agreement may be executed in separate
------------
counterparts, each of which when executed and delivered shall be an
original, but all of which shall together constitute but one and the same
instrument.
Please acknowledge receipt of this Agreement and the Exhibits
hereto and confirm the arrangements herein provided by signing and
returning the enclosed copy to the Company, whereupon this Agreement and
the terms and conditions herein provided shall constitute a binding
agreement between us.
Very truly yours,
Florida Power & Light Company
By:_______________________________
Name:
Title:
Accepted and agreed to as of
the date first above written:
The Chase Manhattan Bank (National Association)
By:_____________________________
Name:
Title:
Exhibits to Exchange Agent Agreement
------------------------------------
Exhibit A Prospectus
Exhibit B Letter of Transmittal
Exhibit C Notice of Guaranteed Delivery
Exhibit D Information Required Pursuant to
Section 9(a)
Exhibit E Schedule of Exchange Agent Fees
Exhibit F Specimen Signatures
EXHIBIT D
INFORMATION REQUIRED PURSUANT TO SECTION 9(A)
---------------------------------------------
The Exchange Agent shall communicate the following information to the
persons designated pursuant to Section 11 of this Agreement by 11:00 a.m.,
New York City time, on each business day (or more frequently if requested)
after the commencement of the Exchange Offer:
1. the number of shares of $2.00 Preferred Stock properly
tendered on the preceding business day, stating separately the
number of shares of $2.00 Preferred Stock properly tendered
pursuant to Notices of Guaranteed Delivery;
2. the number of shares of $2.00 Preferred Stock defectively
tendered on the preceding business day;
3. the number of shares of $2.00 Preferred Stock properly
delivered on the preceding business day pursuant to Notices of
Guaranteed Delivery previously received;
4. the number of shares of $2.00 Preferred Stock properly
withdrawn on the preceding business day;
5. the cumulative total from the commencement of the Exchange
Offer through the close of business on the preceding business day
of the number of shares of $2.00 Preferred Stock referred to in
clauses 1, 2, 3 and 4 above; and
6. such additional information relating to the Exchange Offer
as any person designated pursuant to Section 11 of this Agreement
may reasonably request.
EXHIBIT E
Schedule of Exchange Agent Fees
EXHIBIT F
SPECIMEN SIGNATURES
Dilek L. Samil Treasurer and
Assistant Secretary ______________________________
P. R. Sutherland Assistant Treasurer and
Assistant Secretary ______________________________
EXHIBIT 99 (b)
__________
__________
__________
__________
__________
__________
FLORIDA POWER & LIGHT COMPANY
OFFER TO EXCHANGE
___% QUARTERLY INCOME DEBT SECURITIES
(SUBORDINATED DEFERRABLE INTEREST DEBENTURES, DUE _____)
FOR
$2.00 NO PAR PREFERRED STOCK, SERIES A
(INVOLUNTARY LIQUIDATION VALUE $25 PER SHARE)
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON JUNE ___, 1995, UNLESS THE EXCHANGE OFFER IS EXTENDED.
May __, 1995
To Brokers, Dealers, Commercial
Banks, Trust Companies and
Other Nominees:
In our capacity as Dealer Managers, we are enclosing the material
listed below relating to the offer by Florida Power & Light Company (the
"Company") to exchange its ____% Quarterly Income Debt Securities
(Subordinated Deferrable Interest Debentures, Due _____) ("Debentures") for
its 5,000,000 outstanding shares of $2.00 No Par Preferred Stock, Series A
(Involuntary Liquidation Value $25 Per Share) ("$2.00 Preferred Stock"), on
the basis of $25 principal amount of Debentures for each share of $2.00
Preferred Stock, upon the terms and subject to the conditions of the
Exchange Offer.
The Company expressly reserves the right to extend, amend or modify
the terms of the Exchange Offer, and not to accept for exchange any shares
of $2.00 Preferred Stock, at any time prior to the Expiration Date for any
reason, including, without limitation, if fewer than 1,250,000 shares of
$2.00 Preferred Stock are tendered (which condition may be waived by the
Company). See "The Exchange Offer Expiration Date; Extensions;
Amendments; Termination" in the Prospectus (as defined below).
We are asking you to contact your clients for whom you hold shares of
$2.00 Preferred Stock registered in your name (or in the name of your
nominee) or who hold shares of $2.00 Preferred Stock registered in their
own names. Please bring the Exchange Offer to their attention as promptly
as possible.
The Company will pay a solicitation fee of $_____ per $25 principal
amount of Debentures issued in respect of any shares of $2.00 Preferred
Stock tendered and accepted for exchange pursuant to the Exchange Offer
covered by a Letter of Transmittal which designates, as having solicited
and obtained the tender, the name of (i) any broker or dealer in
securities, including the Dealer Managers in their capacity as brokers or
dealers, which is a member of any national securities exchange or of the
National Association of Securities Dealers, Inc. (the "NASD"), (ii) any
foreign broker or dealer not eligible for membership in the NASD which
agrees to conform to the NASD's Rules of Fair Practice in soliciting
tenders outside the United States to the same extent as though it were an
NASD member, or (iii) any bank or trust company (each of which is referred
to herein as a "Soliciting Dealer").
Soliciting Dealers must return a Notice of Solicited Tenders to the
Exchange Agent within five New York Stock Exchange ("NYSE") trading days
after the expiration of the Exchange Offer to receive a solicitation fee
for tenders involving guaranteed delivery proceedures. No such fee shall
be payable to the Soliciting Dealer in respect of shares registered in the
name of such Soliciting Dealer unless such shares are held by such
Soliciting Dealer as nominee and such shares are being tendered for the
benefit of one or more beneficial owners identified on the Notice of
Solicited Tenders. No such fee shall be payable to a Soliciting Dealer
with respect to the tender of shares of $2.00 Preferred Stock by a holder
unless the Letter of Transmittal accompanying such tender designates such
Soliciting Dealer. No such fee shall be payable to a Soliciting Dealer if
such Soliciting Dealer is required for any reason to transfer the amount of
such fee to a depositing holder (other than itself). No such fee shall be
payable to a Soliciting Dealer with respect to shares of $2.00 Preferred
Stock tendered for such Soliciting Dealers' own account. No broker,
dealer, bank, trust company or fiduciary shall be deemed to be the agent of
the Company, the Exchange Agent, the Dealer Managers or the Information
Agent for purposes of the Exchange Offer except that in any jurisdiction
where the securities, blue sky, or other laws require the Exchange Offer to
be made by or through a licensed broker or dealer, the Exchange Offer is
being made on behalf of the Company by the Dealer Managers or one or more
registered brokers or dealers under the law of such jurisdiction.
The Company will also, upon request, reimburse Soliciting Dealers for
reasonable and customary handling and mailing expenses incurred by them in
forwarding materials relating to the Exchange Offer to their customers.
The Company will pay all stock transfer taxes applicable to the exchange of
shares of $2.00 Preferred Stock pursuant to the Exchange Offer, subject to
Instruction 6 of the Letter of Transmittal.
In order for a Soliciting Dealer to receive a solicitation fee, The
Chase Manhattan Bank (National Association), as Exchange Agent (the
"Exchange Agent"), must have received (i) from a registered holder, a
properly completed and duly executed Letter of Transmittal which designates
such Soliciting Dealer, or (ii) in the case of a guaranteed delivery, from
a Soliciting Dealer, a properly completed and duly executed Notice of
Solicited Tenders in the form attached hereto (or facsimile thereof) within
five NYSE trading days after the expiration of the Exchange Offer.
For your information and for forwarding to your clients, we are
enclosing the following documents:
1. The Prospectus dated May __, 1995 (the "Prospectus");
2. The Letter of Transmittal to be used by Holders of shares of
$2.00 Preferred Stock in accepting the Exchange Offer (duly executed
photocopies of the Letter of Transmittal may be used to exchange shares
of $2.00 Preferred Stock);
3. A letter to holders of $2.00 Preferred Stock from the
____________________ of the Company;
4. The Notice of Guaranteed Delivery to be used to accept the
Exchange Offer if the shares of $2.00 Preferred Stock and all other
required documents cannot be delivered to the Exchange Agent by the
Expiration Date (as defined in the Prospectus);
5. A letter which may be sent to your clients for whose accounts you
hold shares of $2.00 Preferred Stock registered in your name or in the
name of your nominee, with space for obtaining such clients'
instructions with regard to the Exchange Offer;
6. Guidelines of the Internal Revenue Service for Certification of
Taxpayer Identification Number on Substitute Form W-9, providing
information relating to backup federal income tax withholding; and
7. A return envelope addressed to The Chase Manhattan Bank (National
Association), the Exchange Agent.
WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE. PLEASE
NOTE THAT THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON JUNE ___, 1995, UNLESS THE EXCHANGE OFFER IS EXTENDED.
Subject to the terms and conditions described in the Prospectus, if
more than 1,250,000 shares of $2.00 Preferred Stock (or such lesser amount
as the Company shall accept) have been validly tendered and not withdrawn
on or prior to the Expiration Date, as defined in the Prospectus, the
Company intends to exchange Debentures for shares of its $2.00 Preferred
Stock from all tendering holders on the basis of $25 principal amount of
Debentures for each share of $2.00 Preferred Stock tendered.
Neither the Company nor its Board of Directors makes any
recommendation to Holders (as defined in the Prospectus) of $2.00 Preferred
Stock as to whether to tender all or any shares of $2.00 Preferred Stock in
the Exchange Offer. Holders must make their own decision as to whether to
tender shares of $2.00 Preferred Stock.
Any questions or requests for assistance or additional copies of the
enclosed materials may be directed to Georgeson & Company Inc., the
Information Agent, or to us, as Dealer Managers, at the respective
addresses and telephone numbers set forth on the back cover of the enclosed
Prospectus.
Very truly yours,
__________
__________
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL BE DEEMED
TO APPOINT YOU THE AGENT OF THE COMPANY, THE DEALER MANAGERS, THE
INFORMATION AGENT OR THE EXCHANGE AGENT, OR AUTHORIZE YOU OR ANY OTHER
PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF ANY OF THEM
IN CONNECTION WITH THE EXCHANGE OFFER OTHER THAN THE DOCUMENTS ENCLOSED
HEREWITH AND THE STATEMENTS CONTAINED THEREIN.
NOTICE OF SOLICITED TENDERS
List below the number of shares of $2.00 Preferred Stock tendered by
each beneficial owner whose tender you have solicited. All shares of $2.00
Preferred Stock beneficially owned by a beneficial owner, whether in one
account or several, and in however many capacities, must be aggregated for
purposes of completing the table below. Any questions as to what
constitutes beneficial ownership should be directed to the Exchange Agent.
If the space below is inadequate, list the shares of $2.00 Preferred Stock
in a separate signed schedule and affix the list to this Notice of
Solicited Tenders. Please do not complete the sections of the table headed
"TO BE COMPLETED ONLY BY EXCHANGE AGENT."
ALL NOTICES OF SOLICITED TENDERS SHOULD BE RETURNED TO, AND ALL
QUESTIONS CONCERNING THE NOTICES OF SOLICITED TENDERS SHOULD BE DIRECTED
TO, THE EXCHANGE AGENT.
TO BE COMPLETED BY THE TO BE COMPLETED ONLY
SOLICITING DEALER BY EXCHANGE AGENT
NUMBER OF SHARES NUMBER OF SHARES
BENEFICIAL OWNERS TENDERED ACCEPTED
Beneficial Owner No. 1
Beneficial Owner No. 2
Beneficial Owner No. 3
Beneficial Owner No. 4
Beneficial Owner No. 5
Beneficial Owner No. 6
Beneficial Owner No. 7
Beneficial Owner No. 8
Beneficial Owner No. 9
Beneficial Owner No. 10
Total
TO BE COMPLETED ONLY
BY EXCHANGE AGENT
FEE
BENEFICIAL OWNERS ($_____ PER SHARE)
Beneficial Owner No. 1
Beneficial Owner No. 2
Beneficial Owner No. 3
Beneficial Owner No. 4
Beneficial Owner No. 5
Beneficial Owner No. 6
Beneficial Owner No. 7
Beneficial Owner No. 8
Beneficial Owner No. 9
Beneficial Owner No. 10
Total
All questions as to the validly, form and eligibility (including time
of receipt) of Notices of Solicited Tenders will be determined by the
Exchange Agent, in its sole discretion, which determination will be final
and binding. Neither the Exchange Agent nor any other person will be under
any duty to give notification of any defects or irregularities in any
Notice of Solicited Tenders or incur any liability for failure to give such
notification.
The undersigned hereby confirms that: (i) it has complied with the
applicable requirements of the Securities Exchange Act of 1934, as amended,
and the applicable rules and regulations thereunder, in connection with
such solicitation; (ii) it is entitled to such compensation for such
solicitation under the terms and conditions of the Exchange Offer; (iii) in
soliciting tenders of shares of $2.00 Preferred Stock, it has used no
soliciting materials other than those furnished by the Company; and (iv) if
it is a foreign broker or dealer not eligible for membership in the NASD,
it has agreed to conform to the NASD's Rules of Fair Practice in making
solicitations.
_________________________________ ___________________________
Printed Firm Name Address
_________________________________ ___________________________
Authorized Signature Area Code and Telephone Number
EXHIBIT 99 (c)
FLORIDA POWER & LIGHT COMPANY
OFFER TO EXCHANGE
___% QUARTERLY INCOME DEBT SECURITIES
(SUBORDINATED DEFERRABLE INTEREST DEBENTURES, DUE _____)
FOR
$2.00 NO PAR PREFERRED STOCK, SERIES A
(INVOLUNTARY LIQUIDATION VALUE $25 PER SHARE)
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON JUNE ___, 1995, UNLESS THE EXCHANGE OFFER IS EXTENDED.
May __, 1995
To Our Clients:
Enclosed for your consideration are the Prospectus, dated May __, 1995
(the "Prospectus"), and the related Letter of Transmittal (which together
constitute the "Exchange Offer") setting forth an offer by Florida Power &
Light Company, a Florida corporation (the "Company"), to exchange its ___%
Quarterly Income Debt Securities (Subordinated Deferrable Interest
Debentures, Due _____) ("Debentures") for its 5,000,000 outstanding shares
of $2.00 No Par Preferred Stock, Series A (Involuntary Liquidation Value
$25 Per Share) ("$2.00 Preferred Stock"), on the basis of $25 principal
amount of Debentures for each share of $2.00 Preferred Stock, upon the
terms and subject to the conditions of the Exchange Offer. The Company
intends to exchange all shares of $2.00 Preferred Stock validly tendered
and not withdrawn, upon the terms and subject to the conditions of the
Exchange Offer, including the provisions thereof relating to the minimum
number of shares tendered requirement (as described in the Prospectus) and
subject to the right of the Company to amend or terminate the Exchange
Offer.
WE ARE THE HOLDER OF RECORD OF SHARES OF $2.00 PREFERRED STOCK HELD
FOR YOUR ACCOUNT. A TENDER OF SUCH SHARES CAN BE MADE ONLY BY US AS THE
HOLDER OF RECORD AND PURSUANT TO YOUR INSTRUCTIONS. THE LETTER OF
TRANSMITTAL IS FURNISHED TO YOU FOR YOUR INFORMATION ONLY AND CANNOT BE
USED BY YOU TO TENDER SHARES OF $2.00 PREFERRED STOCK HELD BY US FOR YOUR
ACCOUNT.
We request instructions as to whether you wish us to tender any or all
of the shares of $2.00 Preferred Stock held by us for your account, upon
the terms and subject to the conditions set forth in the Prospectus and the
Letter of Transmittal. We urge you to read the enclosed Prospectus
carefully before conveying your instructions to us.
Your attention is invited to the following:
(1) The Exchange Offer is for the Company's 5,000,000 outstanding
shares of $2.00 Preferred Stock. The Exchange Offer is conditioned upon at
least 1,250,000 shares of $2.00 Preferred Stock being tendered (unless the
Company waives such condition) and is subject to certain other conditions.
(2) The Exchange Offer will expire at 5:00 p.m., New York City time,
on June ___, 1995, unless the Exchange Offer is extended. Your
instructions to us should be forwarded to us in ample time to permit us to
submit a tender on your behalf. If you would like to withdraw your shares
of $2.00 Preferred Stock that we have tendered, you can withdraw them at
any time prior to the Expiration Date (as defined in the Prospectus) or at
any time after the expiration of 40 business days from the date of the
Prospectus if they have not been accepted for exchange.
(3) Exchanges will be made on the basis of $25 principal amount of
Debentures for each share of $2.00 Preferred Stock tendered and accepted
for exchange.
(4) Any stock transfer taxes applicable to the exchange of shares of
$2.00 Preferred Stock with the Company pursuant to the Exchange Offer will
be paid by the Company, except as otherwise provided in Instruction 6 of
the Letter of Transmittal.
Neither the Company nor its Board of Directors makes any
recommendation to Holders (as defined in the Prospectus) of $2.00 Preferred
Stock as to whether to tender all or any shares of $2.00 Preferred Stock in
the Exchange Offer. Holders must make their own decision as to whether to
tender shares of $2.00 Preferred Stock.
If you wish to have us tender any or all of your shares of $2.00
Preferred Stock held by us for your account upon the terms and subject to
the conditions set forth in the Exchange Offer, please so instruct us by
completing, executing, detaching and returning to us the instruction form
on the detachable part hereof. An envelope to return your instructions to
us is enclosed. If you authorize tender of your shares of $2.00 Preferred
Stock, all such shares of $2.00 Preferred Stock will be tendered unless
otherwise specified on the detachable part hereof. Your instructions
should be forwarded to us in ample time to permit us to submit a tender on
your behalf by the expiration of the Exchange Offer.
The Exchange Offer is being made to all holders of shares of $2.00
Preferred Stock. The Company is not aware of any jurisdiction in the
United States where the making of the Exchange Offer is prohibited by
administrative or judicial action pursuant to a valid state statute. If
the Company becomes aware of any valid state statute prohibiting the making
of the Exchange Offer, the Company will make a good faith effort to comply
with such statute. If, after such good faith effort, the Company cannot
comply with such statute, the Exchange Offer will not be made to, nor will
tenders be accepted from or on behalf of, holders of shares of $2.00
Preferred Stock in such state. In those jurisdictions whose securities,
blue sky or other laws require the Exchange Offer to be made by or through
a licensed broker or dealer, the Exchange Offer is being made on behalf of
the Company by the Dealer Managers or one or more registered brokers or
dealers licensed under the laws of such jurisdictions.
INSTRUCTIONS WITH RESPECT TO
FLORIDA POWER AND LIGHT COMPANY
OFFER TO EXCHANGE
___% QUARTERLY INCOME DEBT SECURITIES
(SUBORDINATED DEFERRABLE INTEREST DEBENTURES, DUE ____)
FOR ITS
5,000,000 OUTSTANDING SHARES OF $2.00
NO PAR PREFERRED STOCK, SERIES A
(INVOLUNTARY LIQUIDATION VALUE $25 PER SHARE)
The undersigned acknowledge(s) receipt of your letter and the enclosed
Prospectus, dated May __, 1995, and the related Letter of Transmittal
(which together constitute the "Exchange Offer") in connection with the
Exchange Offer by Florida Power & Light Company (the "Company") to exchange
its ____% Quarterly Income Debt Securities (Subordinated Deferrable
Interest Debentures, Due _____) ("Debentures") for its 5,000,000
outstanding shares of $2.00 No Par Preferred Stock, Series A (Involuntary
Liquidation Value $25 Per Share) ("$2.00 Preferred Stock"), on the basis of
$25 principal amount of Debentures for each share of $2.00 Preferred Stock,
upon the terms and subject to the conditions of the Exchange Offer.
This will instruct you to tender to the Company the number of shares
of $2.00 Preferred Stock indicated below (or, if no number is indicated
below, all shares of $2.00 Preferred Stock) which are held by you for the
account of the undersigned, upon the terms and subject to the conditions of
the Exchange Offer.
Number of Shares to be Tendered: SIGN HERE
_______________ Shares* _____________________________
Signature(s)
Dated:__________, 1995 Name(s): ____________________
Address: ____________________
_____________________________
_____________________________
_____________________________
Social Security or Taxpayer
Identification No.
________________________
* Unless otherwise indicated, it will be assumed that all shares of
$2.00 Preferred Stock held by us for your account are to be tendered.
EXHIBIT 99 (d)
FLORIDA POWER & LIGHT COMPANY
NOTICE OF GUARANTEED DELIVERY OF SHARES
OF $2.00 NO PAR PREFERRED STOCK, SERIES A
(INVOLUNTARY LIQUIDATION VALUE $25 PER SHARE)
IN EXCHANGE FOR _____% QUARTERLY INCOME DEBT SECURITIES
(SUBORDINATED DEFERRABLE INTEREST DEBENTURES, DUE _____)
This form, or a form substantially equivalent to this form, must be
used to accept the Exchange Offer (as defined below) if certificates for
the shares of $2.00 No Par Preferred Stock, Series A (Involuntary
Liquidation Value $25 Per Share) of Florida Power & Light Company (the
"Shares") are not immediately available, if the procedure for book-entry
transfer cannot be completed on a timely basis, or if time will not permit
all other documents required by the Letter of Transmittal to be delivered
to the Exchange Agent on or prior to the Expiration Date (as defined in the
Prospectus referred to below). Such form may be delivered by hand or
transmitted by mail, or (for Eligible Institutions only) by facsimile
transmission, to the Exchange Agent. See "The Exchange Offer Procedures
for Tendering" in the Prospectus. THE ELIGIBLE INSTITUTION WHICH COMPLETES
THIS FORM MUST COMMUNICATE THE GUARANTEE TO THE EXCHANGE AGENT AND MUST
DELIVER THE LETTER OF TRANSMITTAL AND CERTIFICATES FOR SHARES TO THE
EXCHANGE AGENT WITHIN THE TIME SHOWN HEREIN. FAILURE TO DO SO COULD RESULT
IN FINANCIAL LOSS TO SUCH ELIGIBLE INSTITUTION.
The Exchange Agent is:
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION)
BY HAND: BY OVERNIGHT COURIER:
Office Hours: 9:00 a.m. 5:00 p.m. c/o Chase Securities Processing Corp.
(New York City Time) Ft. Lee Executive Park
1 Chase Manhattan Plaza (Floor 1-B) 1 Executive Drive (6th Floor)
Nassau and Liberty Streets Ft. Lee, New Jersey 07024
New York, New York 10081
BY MAIL:
Box 3032
4 Chase MetroTech Center
Brooklyn, New York 11245
Facsimile Transmission
(201) 592-4372
(For Eligible Institutions Only)
Confirm Receipt of Notice of Guaranteed Delivery by Telephone:
(201) 592-4370
Shareholder Inquiries:
(800) 355-2663 (Toll Free)
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR
TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE NUMBER OTHER THAN ONE LISTED
ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THIS FORM IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF A SIGNATURE
ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN ELIGIBLE
INSTITUTION UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE MUST
APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE SIGNATURE BOX ON THE LETTER
OF TRANSMITTAL.
Ladies and Gentlemen:
The undersigned hereby tenders to Florida Power & Light Company, a
Florida corporation (the "Company"), upon the terms and subject to the
conditions set forth in the Prospectus, dated May __, 1995 (the
"Prospectus"), and the related Letter of Transmittal (which together
constitute the "Exchange Offer"), receipt of which is hereby acknowledged,
the number of Shares of the Company listed below, pursuant to the
guaranteed delivery procedure set forth in "The Exchange Offer Procedures
for Tendering" in the Prospectus.
DESCRIPTION OF SHARES TENDERED
Name(s) and Address(es) of
Registered Holder(s)
(Please fill in exactly
as name(s) appear(s) Shares Tendered
on certificate(s)) (Attach additional signed list if necessary)
Total Number of Number of
Certificate Shares Represented Shares
Number(s)* by Certificate(s)* Tendered**
________ __________________ ________
________ __________________ ________
________ __________________ ________
________ __________________ ________
Total Shares
* Need not be completed by shareaholders tendering by book-entry
transfer.
** Unless otherwise indicated, it will be assumed that all Shares
represented by any certificates delivered to the Exchange Agent area
being tendered.
GUARANTEE (NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm that is a member of a registered national
securities exchange or the National Association of Securities Dealers, Inc.
or a commercial bank or trust company having an office or correspondent in
the United States, guarantees (a) that the above-named person(s) has a net
long position in the Shares being tendered within the meaning of Rule 14e-4
promulgated under the Securities Exchange Act of 1934, as amended, (b) that
such tender of Shares complies with Rule 14e-4 and (c) to deliver to the
Exchange Agent at one of its addresses set forth above certificate(s) for
the Shares tendered hereby, in proper form for transfer, or a confirmation
of the book-entry transfer of the Shares tendered hereby into the Exchange
Agent's account at The Depository Trust Company, in each case together with
(a) properly completed and duly executed Letter(s) of Transmittal (or
facsimile(s) thereof), with any required signature guarantee(s) and any
other required documents, all within five New York Stock Exchange, Inc.
trading days after the date hereof.
----------------------------------- -----------------------------------
Name of Firm Authorized Signature
----------------------------------- -----------------------------------
Address Name
----------------------------------- -----------------------------------
City, State and Zip Code Title
-----------------------------------
Area Code and Telephone Number
Dated: ____________________________
DO NOT SEND STOCK CERTIFICATES WITH THIS FORM.
YOUR STOCK CERTIFICATES MUST BE SENT WITH THE LETTER OF TRANSMITTAL.
EXHIBIT 99 (e)
[Florida Power & Light Company Letterhead]
May __, 1995
Dear Preferred Stock Shareholder:
Florida Power & Light Company is offering to exchange its __%
Quarterly Income Debt Securities (Subordinated Deferrable Interest
Debentures, Due _____) ("Debentures") for its 5,000,000 outstanding shares
of $2.00 No Par Preferred Stock, Series A (Involuntary Liquidation Value
$25 Per Share) ("$2.00 Preferred Stock") on the basis of $25 principal
amount of Debentures for each share of $2.00 Preferred Stock.
The Company intends to exchange all shares of $2.00 Preferred Stock
that are properly tendered (and are not withdrawn), subject to the terms
and conditions set forth in the enclosed Prospectus and Letter of
Transmittal (including the minimum number of shares tendered condition set
forth therein), on such basis. The June 1, 1995 dividend will be paid to
all holders of $2.00 Preferred Stock who are holders on the record date
established therefor in the normal manner. Any dividends accruing after
May 31, 1995 on shares of $2.00 Preferred Stock tendered for exchange and
before the Closing Date (as defined in the Prospectus) for the issuance of
the Debentures will be compensated for as described in the Prospectus.
IF YOU DO NOT WISH TO PARTICIPATE IN THIS EXCHANGE OFFER, YOU DO NOT
NEED TO TAKE ANY ACTION.
This Exchange Offer is explained in detail in the enclosed Prospectus
and Letter of Transmittal. If you want to tender your shares for exchange,
the instructions on how to tender such shares are also explained in detail
in the enclosed materials. You are encouraged to read carefully these
materials before making any decision with respect to this Exchange Offer.
Neither the Company nor its Board of Directors makes any
recommendation to Holders (as defined in the Prospectus) of $2.00 Preferred
Stock as to whether to tender all or any shares of $2.00 Preferred Stock in
the Exchange Offer. Holders must make their own decision as to whether to
tender shares of $2.00 Preferred Stock.
Sincerely,
EXHIBIT 99 (f)
GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9
SECTION REFERENCES ARE TO THE INTERNAL REVENUE CODE
Purpose of Form A person who is required to file an information return
with the Internal Revenue Service ("IRS") must obtain your correct Taxpayer
Identification Number ("TIN") to report income paid to you, real estate
transactions, mortgage interest you paid, the acquisition or abandonment of
secured property, or contributions you made to an Individual Retirement
Account ("IRA"). Use Form W-9 to furnish your correct TIN to the requester
(the person asking you to furnish your TIN) and, when applicable, (1) to
certify that the TIN you are furnishing is correct (or that you are waiting
for a number to be issued), (2) to certify that you are not subject to
backup withholding, and (3) to claim exemption from backup withholding if
you are an exempt payee. Furnishing your correct TIN and making the
appropriate certifications will prevent certain payments from being subject
to backup withholding.
Note:
If a requester gives you a form other than a W-9 to request your TIN,
you must use the requester's form.
How To Obtain a TIN If you do not have a TIN, apply for one immediately.
To apply, get Form SS-5, Application for a Social Security Card (for
individuals), from your local office of the Social Security Administration,
or Form SS-4, Application for Employer Identification Number (for
businesses and all other entities), from your local IRS office.
To complete Form W-9 if you do not have a TIN, write "Applied for" in
the space for the TIN in Part 1 (or check the box in Part 2 of Substitute
Form W-9), sign and date the form, and give it to the requester.
Generally, you must obtain a TIN and furnish it to the requester by the
time of payment. If the requester does not receive your TIN by the time of
payment, backup withholding, if applicable, will begin and continue until
you furnish your TIN to the requester.
Note:
Writing "Applied for" (or checking the box in Part 2 of the
Substitute Form W-9) on the form means that you have already
applied for a TIN or that you intend to apply for one in the near
future.
As soon as you receive your TIN, complete another Form W-9, include
your TIN, sign and date the form, and give it to the requester.
What Is Backup Withholding? Persons making certain payments to you after
1992 are required to withhold and pay to the IRS 31% of such payments under
certain conditions. This is called "backup withholding." Payments that
could be subject to backup withholding include interest, dividends, broker
and barter exchange transactions, rents, royalties, nonemployee
compensation, and certain payments from fishing boat operators, but do not
include real estate transactions.
If you give the requester your correct TIN, make the appropriate
certifications, and report all your taxable interest and dividends on your
tax return, your payments will not be subject to backup withholding.
Payments you receive will be subject to backup withholding if:
1. You do not furnish your TIN to the requester, or
<PAGE>
GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 (cont'd)
2. The IRS notifies the requester that you furnished an incorrect TIN, or
3. You are notified by the IRS that you are subject to backup
withholding because you failed to report all your interest and
dividends on your tax return (for reportable interest and dividends
only), or
4. You do not certify to the requester that you are not subject to backup
withholding under 3 above (for reportable interest and dividend
accounts opened after 1983 only), or
5. You do not certify your TIN. This applies only to reportable
interest, dividend, broker, or barter exchange accounts opened after
1983, or broker accounts considered inactive in 1983.
Except as explained in 5 above, other reportable payments are subject to
backup withholding only if 1 or 2 above applies. Certain payees and
payments are exempt from backup withholding and information reporting.
See Payees and Payments Exempt From Backup Withholding, below, and Example
Payees and Payments under Specific Instructions, below, if you are an
exempt payee.
Payees and Payments Exempt From Backup Withholding The following is a
list of payees exempt from backup withholding and for which no information
reporting is required. For interest and dividends, all listed payees are
exempt except item (9). For broker transactions, payees listed in (1)
through (13) and a person registered under the Investment Advisers Act of
1940 who regularly acts as a broker are exempt. Payments subject to
reporting under Sections 6041 and 6041A are generally exempt from backup
withholding only if made to payees described in items (1) through (7),
except a corporation that provides medical and health care services or
bills and collects payments for such services is not exempt from backup
withholding or information reporting. Only payees described in items
(2) through (6) are exempt from backup withholding for barter exchange
transactions, patronage dividends, and payments by certain fishing boat
operators.
(1) A corporation. (2) An organization exempt from tax under Section
501(a), or an IRA, or a custodial account under Section 403(b)(7). (3) The
United States or any of its agencies or instrumentalities. (4) A state,
the District of Columbia, a possession of the United States, or any of
their political subdivisions or instrumentalities. (5) A foreign
government or any of its political subdivisions, agencies, or
instrumentalities. (6) An international organization or any of its
agencies or instrumentalities. (7) A foreign central bank of issue. (8) A
dealer in securities or commodities required to register in the United
States or a possession of the United States. (9) A futures commission
merchant registered with the Commodity Futures Trading Commission. (10) A
real estate investment trust. (11) An entity registered at all times
during the tax year under the Investment Company Act of 1940. (12) A
common trust fund operated by a bank under Section 584(a). (13) A
financial institution. (14) A middleman known in the investment community
as a nominee or listed in the most recent publication of the American
Society of Corporate Secretaries, Inc., Nominee List. (15) A trust exempt
from tax under Section 664 or described in Section 4947.
<PAGE>
GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 (cont'd)
Payments of dividends and patronage dividends generally not subject to
backup withholding include the following:
- Payments to nonresident aliens subject to withholding under
Section 1441.
- Payments to partnerships not engaged in a trade or business in the
United States and that have at least one nonresident partner.
- Payments of patronage dividends not paid in money.
- Payments made by certain foreign organizations.
Payments of interest generally not subject to backup withholding include
the following:
- Payments of interest on obligations issued by individuals.
Note:
You may be subject to backup withholding if this interest is $600 or
more and is paid in the course of the payer's trade or business and
you have not provided your correct TIN to the payer.
- Payments of tax-exempt interest (including exempt-interest dividends
under Section 852).
- Payments described in Section 6049(b)(5) to nonresident aliens.
- Payments on tax-free covenant bonds under Section 1451.
- Payments made by certain foreign organizations.
- Mortgage interest paid by you.
Payments that are not subject to information reporting are also not subject
to backup withholding. For details, see Sections 6041, 6041A(a), 6042,
6044, 6045, 6049, 6050A, and 6050N, and their regulations.
PENALTIES
Failure To Furnish TIN - If you fail to furnish your correct TIN to a
requester, you will be subject to a penalty of $50 for each such failure
unless your failure is due to reasonable cause and not to willful neglect.
Civil Penalty for False Information With Respect to Withholding - If you
make a false statement with no reasonable basis that results in no backup
withholding, you are subject to a $500 penalty.
Criminal Penalty for Falsifying Information - Willfully falsifying
certifications or affirmations may subject you to criminal penalties
including fines and/or imprisonment.
Misuse of TINs - If the requester discloses or uses TINs in violation of
Federal law, the requester may be subject to civil and criminal penalties.
<PAGE>
GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 (cont'd)
SPECIFIC INSTRUCTIONS
Name - If you are an individual, you must generally provide the name shown
on your Social Security card. However, if you have changed your last name,
for instance, due to marriage, without informing the Social Security
Administration of the name change, please enter your first name, the last
name shown on your Social Security card, and your new last name.
If you are a sole proprietor, you must furnish your individual name and
either your Social Security Number ("SSN") or Employer Identification
Number ("EIN"). You may also enter your business name or "doing business
as" name on the business name line. Enter your name(s) as shown on your
Social Security card and/or as it was used to apply for your EIN on Form
SS-4.
SIGNING THE CERTIFICATION
1. Interest, Dividend, Broker and Barter Exchange Amounts Opened Before
1984 and Broker Accounts Considered Active During 1983. You are
required to furnish your correct TIN, but you are not required to sign
the certification.
2. Interest, Dividend, Broker, and Barter Exchange Accounts Opened After
1983 and Broker Accounts Considered Inactive During 1983. You must
sign the certification or backup withholding will apply. If you are
subject to backup withholding and you are merely providing your
correct TIN to the requester, you must cross out item 2 in the
certification before signing the form.
3. Real Estate Transactions. You must sign the certification. You may
cross out item 2 of the certification.
4. Other Payments. You are required to furnish your correct TIN, but you
are not required to sign the certification unless you have been
notified of an incorrect TIN. Other payments include payments made in
the course of the requester's trade or business for rents, royalties,
goods (other than bills for merchandise), medical and health care
services, payments to a nonemployee for services (including attorney
and accounting fees), and payments to certain fishing boat crew
members.
5. Mortgage Interest Paid by You, Acquisition or Abandonment of
Secured Property, or IRA Contributions. You are required to
furnish your correct TIN, but you are not required to sign the
certification.
6. Exempt Payees and Payments. If you are exempt from backup
withholding, you should complete this form to avoid possible
erroneous backup withholding. Enter your correct TIN in Part 1, write
"EXEMPT" in the block in Part 2, and sign and date the form. If you
are a nonresident alien or foreign entity not subject to backup
withholding, give the requester a complete Form W-8, Certificate of
Foreign Status.
7. TIN "Applied for." Follow the instructions under How To Obtain a TIN
on page 1, and sign and date this form.
[Page]
GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 (cont'd)
Signature.- For a joint account, only the person whose TIN is shown
in Part 1 should sign.
Privacy Act Notice - Section 6109 requires you to furnish your correct TIN
to persons who must file information returns with the IRS to report
interest, dividends, and certain other income paid to you, mortgage
interest you paid, the acquisition or abandonment of secured property, or
contributions you made to an IRA. The IRS uses the numbers for
identification purposes and to help verify the accuracy of your tax return.
You must provide your TIN whether or not you are required to file a tax
return. Payers must generally withhold 31% of taxable interest, dividends,
and certain other payments to a payee who does not furnish a TIN to a
payer. Certain penalties may also apply.
WHAT NAME AND NUMBER TO GIVE THE REQUESTER
For this type of account: Give name and SSN of:
1. Individual ....................... The individual
2. Two or more individuals The actual owner of the
(joint account) ............... account or, if combined
funds, the first indivi-
dual on the account (1)
3. Custodian account of a minor
(grantor is also trustee) ....... The minor (2)
4. a. The usual revocable
savings trust (grantor is
also trustee) ................... The grantor-trustee (1)
For this type of account: ............. Give name and EIN of:
b. So-called trust account
that is not a legal or valid
trust under state law ........... The actual owner (1)
5. Sole proprietorship ............. The owner (3)
6. A valid trust, estate, or
pension trust ................... Legal entity (4)
7. Corporate ....................... The corporation
8. Association, club, religious,
charitable, educational
or other tax-exempt
organization ..................... The organization
9. Partnership ..................... The partnership
10. A broker or registered
nominee ........................ The broker or nominee
<PAGE>
GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 (cont'd)
11. Account with the Department of
Agriculture in the name of a
public entity (such as a state
or local government, school
district or prison) that
receives agriculture program
payments ....................... The public entity
_________________________
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's SSN.
(3) Show your individual name. You may also enter your business name.
You may use your SSN or EIN.
(4) List first and circle the name of the legal trust, estate, or pension
trust. (Do not furnish the TIN of the personal representative or
trustee unless the legal entity itself is not designated in the
account title.)
Note:
If no name is circled when there is more than one name, the number
will be considered to be that of the first name listed.
