As filed with the Securities and Exchange Commission on , 1998
-------
Registration Statement No.
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=================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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FLORIDA POWER & LIGHT COMPANY
(Exact name of registrant as specified in charter)
Florida 59-0247775
(State or other (I.R.S. Employer
jurisdiction of Identification No.)
incorporation or
organization)
700 Universe Boulevard
Juno Beach, Florida 33408
(561) 694-4000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive
office)
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DENNIS P. COYLE, JEFFREY I. MULLENS, ROBERT J. REGER,
ESQ. P.A. JR., ESQ.
General Counsel and Steel Hector & Davis Reid & Priest LLP
Secretary LLP 40 West 57th Street
Florida Power & 1900 Phillips Point New York, New York
Light Company West 10019
700 Universe 777 South Flagler (212) 603-2000
Boulevard Drive
Juno Beach, Florida West Palm Beach,
33408 Florida 33401
(561) 694-4644 (561) 650-7257
(Names, addresses, including, zip codes, and telephone numbers
including area codes, of agents for service)
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It is respectfully requested that the Commission send
copies of all notices, orders and communications to:
S.K. Waite, Esq.
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004
(212) 858-1000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE
PUBLIC: AS SOON AS PRACTICABLE AFTER THE REGISTRATION STATEMENT
BECOMES EFFECTIVE.
IF THE ONLY SECURITIES BEING REGISTERED ON THIS FORM ARE BEING
OFFERED PURSUANT TO DIVIDEND OR INTEREST REINVESTMENT PLANS,
PLEASE CHECK THE FOLLOWING BOX. [ ]
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO
BE OFFERED ON A DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415
UNDER THE SECURITIES ACT OF 1933, OTHER THAN SECURITIES OFFERED
ONLY IN CONNECTION WITH DIVIDEND OR INTEREST REINVESTMENT PLANS,
CHECK THE FOLLOWING BOX. [X]
IF THIS FORM IS FILED TO REGISTER ADDITIONAL SECURITIES FOR AN
OFFERING PURSUANT TO RULE 462(B) UNDER THE SECURITIES ACT, PLEASE
CHECK THE FOLLOWING BOX AND LIST THE SECURITIES ACT REGISTRATION
STATEMENT NUMBER OF THE EARLIER EFFECTIVE REGISTRATION STATEMENT
FOR THE SAME OFFERING. [ ]
IF THIS FORM IS A POST-EFFECTIVE AMENDMENT FILED PURSUANT TO
RULE 462(C) UNDER THE SECURITIES ACT, CHECK THE FOLLOWING BOX AND
LIST THE SECURITIES ACT REGISTRATION STATEMENT NUMBER OF THE
EARLIER EFFECTIVE REGISTRATION STATEMENT FOR THE SAME
OFFERING. [ ]
IF DELIVERY OF THE PROSPECTUS IS EXPECTED TO BE MADE PURSUANT
TO RULE 434, PLEASE CHECK THE FOLLOWING BOX. [ ]
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CALCULATION OF REGISTRATION FEE
==========================================================================
Proposed Proposed
Title of Each Maximum Maximum
Class Offering Aggregate Amount of
of Securities to Amount to be Price Offering Registration
be Registered Registered Per Unit* Price Fee
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First Mortgage $210,000,000 100.00% $210,000,000 $61,950
Bonds
===========================================================================
* Estimated solely for the purpose of calculating the
registration fee.
Pursuant to Rule 429 under the Securities Act of 1933, the
prospectus filed as part of this Registration Statement will be
used as a combined prospectus in connection with this
Registration Statement and Registration Statement File No. 33-
61390.
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 THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
<PAGE>
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.
Subject to Completion, Dated May , 1998
--
PROSPECTUS
FLORIDA POWER & LIGHT COMPANY
FIRST MORTGAGE BONDS
Florida Power & Light Company (FPL) intends from time to time
to issue up to $500,000,000 aggregate principal amount of its
First Mortgage Bonds (New Bonds) in one or more series at prices
and on terms to be determined when the agreement to sell is made
or at the time of sale.
For each issue of New Bonds for which this Prospectus is being
delivered (Offered Bonds) there is an accompanying Prospectus
Supplement or Prospectus Supplements (Prospectus Supplement) that
set forth, without limitation and to the extent applicable, the
series designation, aggregate principal amount of the issue,
purchase price, maturity, interest rate or rates (which may be
either fixed or variable) or the method of determination of such
rate or rates, times of payment of interest, the place where the
principal of and interest on the Offered Bonds will be payable,
the denominations in which the Offered Bonds are authorized to be
issued, whether the Offered Bonds will be issued in registered
form, in bearer form or both, whether all or a portion of the
Offered Bonds will be issued in global form, redemption terms, if
any, and other special terms of the Offered Bonds.
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.
The New Bonds may be sold directly by FPL or through agents
designated from time to time or through underwriters or dealers
or a group of underwriters. If any agents of FPL or any
underwriters are involved in the sale of the Offered Bonds in
respect of which this Prospectus is being delivered, the names of
such agents or underwriters, the initial price to the public, any
applicable commissions or discounts and the proceeds to FPL with
respect to such Offered Bonds are set forth in the Prospectus
Supplement. See "Plan of Distribution" for possible
indemnification arrangements for underwriters or agents.
The date of this Prospectus is , 1998.
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<PAGE>
AVAILABLE INFORMATION
FPL is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (Exchange Act), and
in accordance therewith files reports and other information with
the Securities and Exchange Commission (SEC). Such reports and
other information can be inspected and copied at the public
reference facilities maintained by the SEC at Room 1024, 450
Fifth Street, N.W., Washington, D.C. 20549 and at the following
Regional Offices of the SEC: Chicago Regional Office, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661; and New York
Regional Office, Seven World Trade Center, Suite 1300 New York,
New York 10048. Copies of such material can also be obtained
from the Public Reference Section of the SEC at its principal
office at 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. In addition, the SEC maintains a World Wide
Web site (http://www.sec.gov) that contains reports and other
information filed by FPL.
Security holders of FPL may obtain, upon request, copies of an
Annual Report on Form 10-K of FPL containing financial statements
as of the end of the most recent fiscal year audited and reported
upon (with an opinion expressed) by independent auditors.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following FPL documents filed with the SEC are
incorporated by reference in this Prospectus:
1. Annual Report on Form 10-K for the year ended December
31, 1997 (Form 10-K).
2. Quarterly Report on Form 10-Q for the quarter ended March
31, 1998.
All documents filed by FPL with the SEC pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of this Prospectus and prior to the termination of the
offering of the securities covered by this Prospectus shall be
deemed to be incorporated by reference in this Prospectus and to
be a part hereof from the date of filing such documents.
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 or in the Prospectus Supplement 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.
FPL will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered,
upon written or oral request of any such person, a copy of any
and all of the documents referred to above that have been
incorporated by reference in this Prospectus excluding the
exhibits thereto (unless such exhibits are specifically
incorporated by reference into such documents). Requests for
such copies should be directed to: Robert J. Reger, Jr., Esq.,
Reid & Priest LLP, 40 West 57th Street, New York, New York,
10019, (212) 603-2000.
FPL
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 (561) 694-4000, 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 the
State of Florida, serving an area of about 27,650 square miles
with a population of approximately 7 million. During 1997, FPL
served approximately 3.6 million customer accounts. All of the
shares of common stock of FPL is owned by FPL Group, Inc. (FPL
Group).
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<PAGE>
USE OF PROCEEDS
FPL is offering hereby a maximum of $500,000,000 aggregate
principal amount of New Bonds. The net proceeds to be received
from the sale of the New Bonds will be added to FPL's general
funds and will be used for corporate purposes which may include,
but are not limited to, the redemption or purchase of certain of
its outstanding debt and preferred stock, the repayment of all or
a portion of short-term borrowings outstanding, the repayment of
all or a portion of any maturing long-term debt obligations and
the financing of the acquisition or construction of additional
electric facilities. Proceeds not immediately required for the
foregoing purposes will be temporarily invested in short-term
instruments.
FPL maintains a continuous construction program, principally
for electric generation, transmission and distribution
facilities. FPL anticipates financing this program partially
through internally generated funds, partially through the sale of
additional securities, partially through short-term borrowings
and partially through equity investments by FPL Group. See "Item
1. Business - Capital Expenditures" and "Item 7. Management's
Discussion and Analysis of Financial Condition and Results of
Operations - Liquidity and Capital Resources" in the Form 10-K
incorporated by reference herein.
RATIO OF EARNINGS TO FIXED CHARGES
The ratios of earnings to fixed charges for the years ended
December 31, 1993 through 1997 are 3.03, 3.86, 4.33, 4.58 and
4.95, respectively. The ratio of earnings to fixed charges for
the quarter ended March 31, 1998 is 3.98.
DESCRIPTION OF NEW BONDS
GENERAL. The New Bonds are to be issued under a Mortgage and
Deed of Trust dated as of January 1, 1944, with Bankers Trust
Company, as Trustee (Mortgage Trustee), and The Florida National
Bank of Jacksonville (now resigned) as supplemented and amended,
and as to be supplemented by one or more supplemental indentures
relating to the New Bonds, all of which are collectively referred
to as the "Mortgage".
The following statements are brief summaries of certain
provisions of the Mortgage, which is on file with the SEC and
incorporated by reference herein, and do not purport to be
complete. They make use of terms defined in the Mortgage.
Reference is made to the Mortgage for a definition of these terms
and for the complete provisions of the Mortgage. The following
statements are qualified in their entirety by such reference.
Reference is made to the Prospectus Supplement for the
following terms of the Offered Bonds (among others): (i) the
designation, series and aggregate principal amount of the Offered
Bonds; (ii) the percentage or percentages of their principal
amount at which such Offered Bonds will be issued; (iii) the date
or dates on which the Offered Bonds will mature; (iv) the rate or
rates (which may be either fixed or variable), and/or the method
of determination of such rate or rates, per annum at which the
Offered Bonds will bear interest; (v) the times at which such
interest will be payable; (vi) the place where the principal of
and interest on the Offered Bonds will be payable; (vii) the
denominations in which the Offered Bonds are authorized to be
issued; (viii) the redemption terms, if any; (ix) whether the
Offered Bonds will be in registered form, in bearer form or both;
(x) whether all or a portion of the Offered Bonds will be in
global form; and (xi) any other terms or provisions relating to
such Offered Bonds which are not inconsistent with the provisions
of the Mortgage.
FORM AND EXCHANGES. The New Bonds may be issued in fully
registered form without coupons, in bearer form with or without
coupons or any combination thereof. New Bonds in bearer form
will not be offered, sold, resold or delivered in the United
States or to United States persons in connection with their
original issuance. Unless otherwise specified in the Prospectus
Supplement, the New Bonds will be issuable in the form of
registered bonds without coupons. New Bonds will be exchangeable
without charge for other New Bonds of the same series and of the
same or different authorized denominations, in each case for a
like aggregate principal amount of New Bonds having the same
issue date with identical terms and provisions, unless otherwise
specified in the Prospectus Supplement. New Bonds may be
transferred without charge, other than for applicable stamp taxes
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<PAGE>
or other governmental charges, unless otherwise specified in the
Prospectus Supplement. Reference is made to the Prospectus
Supplement for additional requirements as to the form and method
of exchange of the New Bonds. Additionally, New Bonds may be
represented in whole or in part by global notes, and if so
represented, beneficial interests in such global notes will be
shown on and transfers thereof will be effected only through,
records maintained by a designated depository and its
participants.
INTEREST AND PAYMENT. Reference is made to the Prospectus
Supplement for the interest rate or rates (which may be either
fixed or variable) and/or the method of determination of such
rate or rates of the Offered Bonds and the date or dates on
which such interest is payable. Unless otherwise specified in
the Prospectus Supplement, principal and interest are payable in
U.S. dollars at Bankers Trust Company in New York City.
REDEMPTION AND PURCHASE OF OFFERED BONDS. See the Prospectus
Supplement.
SPECIAL PROVISIONS FOR RETIREMENT OF BONDS. If, during any 12
month period, mortgaged property is disposed of by order of or to
any Federal, State, county, municipal or other governmental
bodies or agencies, resulting in the receipt of $10 million or
more as proceeds, FPL (subject to certain conditions) must apply
such proceeds, less certain deductions, to the retirement of
Bonds. Any series of Bonds may be redeemable at the redemption
prices applicable for this purpose. See the Prospectus
Supplement.
SECURITY. The New Bonds together with all other Bonds now or
hereafter issued under the Mortgage will be secured by the
Mortgage, which constitutes, in the opinion of counsel to FPL, a
first mortgage lien on all of the present properties and
franchises of FPL (except as stated below), subject to (a) lease
of minor portions of FPL's property to others for uses which, in
the opinion of such counsel, do not interfere with FPL's
business, (b) leases of certain property of FPL not used in its
electric business, and (c) excepted encumbrances. There are
excepted from the lien all cash and securities; certain
equipment, materials or supplies and fuel (including Nuclear
Fuel); automobiles and other vehicles; receivables, contracts,
leases and operating agreements; and timber, minerals, mineral
rights and royalties.
The Mortgage contains provisions subjecting after-acquired
property (subject to pre-existing liens) to the lien thereof,
subject to limitations in the case of consolidation, merger or
sale of substantially all of FPL's assets. Property acquired
since the most recent recording of a supplemental indenture may
also be subject to possible rights of others which may attach
prior to recordation of a supplemental indenture subsequent to
the acquisition of such property.
The Mortgage provides that the Mortgage Trustee shall have a
lien upon the mortgaged property, prior to the Bonds, for the
payment of its reasonable compensation and expenses and for
indemnity against certain liabilities.
ISSUANCE OF ADDITIONAL BONDS. The maximum principal amount of
Bonds which may be issued under the Mortgage is unlimited. Bonds
of any series may be issued from time to time on the basis of (1)
60% of Property Additions after adjustments to offset
retirements, (2) retirement of Bonds or qualified lien bonds, and
(3) deposit of cash. With certain exceptions in the case of (2)
above, the issuance of Bonds is subject to adjusted net earnings
for 12 consecutive months out of the preceding 15 months before
income taxes being either at least twice the annual interest
requirements on, or 10% of the principal amount of, all Bonds at
the time outstanding, including the additional issue, and all
indebtedness of prior or equal rank. Such adjusted net earnings
are computed after provision for retirement and depreciation of
property equal to the replacement requirements of the Mortgage
for such period.
Property Additions generally include plants, lines, pipes,
mains, cables, machinery, boilers, transmission lines, pipe
lines, distribution systems, service systems and supply systems,
Nuclear Fuel that has been expressly subjected to the lien and
operation of the Mortgage, railroad cars, barges and other
transportation equipment (other than trucks) for the
transportation of fuel, and other property, real or personal, and
improvements, extensions, additions, renewals or replacements
located within the United States of America or its coastal
waters. Any such property, whether or not in operation, can be
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<PAGE>
used as Property Additions prior to the obtaining of permits or
licenses. Property Additions may not include securities, fuel
(including Nuclear Fuel unless expressly subjected to the lien
and operation of the Mortgage), automobiles or other vehicles, or
property used principally for the production or gathering of
natural gas. Under the Mortgage, FPL could issue approximately
$4.5 billion of additional first mortgage bonds based on unfunded
Property Additions and $3.3 billion of additional first mortgage
bonds based on the retirement of Bonds at December 31, 1997.
The Mortgage contains certain restrictions upon the issuance
of Bonds against property subject to liens and upon the increase
of the amount of such liens.
RELEASE AND SUBSTITUTION OF PROPERTY. Property may be
released against (1) deposit of cash or, to a limited extent,
purchase money mortgages, (2) Property Additions, and (3) waiver
of the right to issue Bonds without applying any earnings test.
Cash so deposited and cash deposited against the issuance of
additional Bonds may be withdrawn upon the bases stated in (2)
and (3) above. When property released is not funded property,
Property Additions used to effect the release may again, in
certain cases, become available as credits under the Mortgage,
and the waiver of the right to issue Bonds to effect the release
may, in certain cases, cease to be effective as such a waiver.
Similar provisions are in effect as to cash proceeds of such
property. The Mortgage contains special provisions with respect
to qualified lien bonds pledged, and disposition of monies
received on pledged prior lien bonds. FPL may, without any
release, consume in its operations Nuclear Fuel even if such
Nuclear Fuel has been expressly subjected to the lien and
operation of the Mortgage.
DIVIDEND RESTRICTIONS. The Mortgage contains provisions
restricting an amount of retained earnings which can be used to
pay cash dividends on common stock. The amount restricted is
subject to being increased or decreased on the basis of various
factors and any restricted retained earnings can be used for
various purposes. No retained earnings were restricted, as a
result of these provisions of the Mortgage, as of December 31,
1997.
MODIFICATION OF THE MORTGAGE. Generally the rights of the
Bondholders may be modified with the consent of 66-2/3% of the
Bonds and, if less than all series of Bonds are affected, the
consent also of 66-2/3% of Bonds of each series affected. FPL
has reserved the right to amend the Mortgage without any consent
or other action by the holders of any series of Bonds created
after April 30, 1992 (including the New Bonds) so as to
substitute for the foregoing provisions the following: Generally
the rights of the Bondholders may be modified with the consent of
a majority of the Bonds, but if less than all series of the Bonds
are affected, only the consent of a majority of the affected
Bonds is required. In general, no modification of the terms of
payment of principal and interest, no modification of the
obligations of FPL under Section 64 of the Mortgage (until the
foregoing substitution is made), and no modification affecting
the lien or reducing the percentage required for modification,
are effective against any Bondholder without such Bondholder's
consent.
DEFAULT AND NOTICE THEREOF. Defaults are: default in payment
of principal; default for 60 days in payment of interest or of
installments of funds for retirement of Bonds; certain defaults
with respect to qualified lien bonds; certain events in
bankruptcy, insolvency or reorganization; and default for 90 days
after notice on other covenants. The Mortgage Trustee may
withhold notice of default (except in payment of principal,
interest or any fund for retirement of Bonds), if it thinks it is
in the interests of the Bondholders.
Holders of 25% of the Bonds may declare the principal and the
interest due on default, but a majority may annul such
declaration if such default has been cured. No holder of Bonds
may enforce the lien of the Mortgage unless (1) such holder has
given the Mortgage Trustee written notice of a default; (2) 25%
of the Bonds have requested the Mortgage Trustee to act and
offered it reasonable opportunity to act and indemnity
satisfactory to the Mortgage Trustee against the costs, expenses
and liabilities to be incurred thereby; and (3) the Mortgage
Trustee has failed to act. The Mortgage Trustee is not required
to risk its funds or incur personal liability if there is
reasonable ground for believing that the repayment is not
reasonably assured. A majority of the Bonds may direct the time,
method, and place of conducting any proceedings for any remedy
available to the Mortgage Trustee, or exercising any trust or
power conferred upon the Mortgage Trustee.
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<PAGE>
SATISFACTION AND DISCHARGE OF MORTGAGE. Upon FPL's making due
provision for the payment of all of the Bonds and paying all
other sums due under the Mortgage, the Mortgage may be satisfied
and discharged of record.
EVIDENCE TO BE FURNISHED TO THE MORTGAGE TRUSTEE. Compliance
with Mortgage provisions is evidenced by written statements of
FPL's officers or persons selected or paid by FPL. In certain
major matters the accountant, appraiser, engineer or counsel must
be independent. Various certificates and other papers are
required to be filed annually and in certain events, including an
annual certificate with reference to compliance with the terms of
the Mortgage and absence of default.
CONCERNING THE MORTGAGE TRUSTEE. In the regular course of
business, FPL may obtain short-term funds from several banks,
including Bankers Trust Company.
PLAN OF DISTRIBUTION
FPL may sell the New Bonds in any of three ways: (i) through
underwriters or dealers; (ii) directly to a limited number of
purchasers or to a single purchaser; or (iii) through agents.
The Prospectus Supplement with respect to the Offered Bonds sets
forth the terms of the offering of the Offered Bonds, including
the name or names of any underwriters, dealers or agents, the
purchase price of such Offered Bonds and the proceeds to FPL from
such sale, any underwriting discounts and other items
constituting underwriters' compensation, any initial public
offering price and any discounts or concessions allowed or
reallowed or paid to dealers. Any initial public offering price
and any discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time.
If underwriters are used in the sale, the New Bonds will be
acquired by the underwriters for their own account and may be
resold from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of the sale. The New Bonds
may be offered to the public either through underwriting
syndicates represented by one or more managing underwriters as
may be designated by FPL, or directly by one or more of such
firms. The underwriter or underwriters with respect to a
particular underwritten offering of Offered Bonds are named in
the Prospectus Supplement relating to such offering and, if an
underwriting syndicate is used, the managing underwriter or
underwriters are set forth on the cover page of such Prospectus
Supplement. Unless otherwise set forth in the Prospectus
Supplement, the obligations of the underwriters to purchase the
Offered Bonds will be subject to certain conditions precedent,
and the underwriters will be obligated to purchase all such
Offered Bonds if any are purchased.
New Bonds may be sold directly by FPL or through agents
designated by FPL from time to time. The Prospectus Supplement
sets forth the name of any agent involved in the offer or sale of
the Offered Bonds in respect of which the Prospectus Supplement
is delivered as well as any commissions payable by FPL to such
agent. Unless otherwise indicated in the Prospectus Supplement,
any such agent is acting on a best efforts basis for the period
of its appointment.
If so indicated in the Prospectus Supplement, FPL will
authorize agents, underwriters or dealers to solicit offers by
certain specified institutions to purchase Offered Bonds from FPL
at the public offering price set forth in the Prospectus
Supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. Such
contracts will be subject to those conditions set forth in the
Prospectus Supplement, and the Prospectus Supplement will set
forth the commission payable for solicitation of such contracts.
Agents and underwriters may be entitled under agreements
entered into with FPL to indemnification by FPL against certain
civil liabilities, including liabilities under the Securities Act
of 1933, as amended (Securities Act).
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<PAGE>
EXPERTS
The consolidated financial statements of FPL and its
subsidiaries appearing in FPL's Annual Report on Form 10-K
incorporated by reference herein have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their report
included in said Annual Report on Form 10-K, which report is
incorporated herein by reference, and have been so incorporated
by reference herein in reliance upon such report given upon the
authority of that firm as experts in accounting and auditing.
Legal conclusions and opinions specifically attributed to
counsel in the documents incorporated herein by reference have
been reviewed by Steel Hector & Davis LLP, West Palm Beach,
Florida, counsel to FPL, and are set forth on the authority of
said firm as experts.
LEGAL OPINIONS
The legality of the New Bonds will be passed upon for FPL by
Steel Hector & Davis LLP, West Palm Beach, Florida, and Reid &
Priest LLP, New York, New York, co-counsel to FPL, and for any
underwriter or agent by Winthrop, Stimson, Putnam & Roberts, New
York, New York. Reid & Priest LLP and Winthrop, Stimson, Putnam
& Roberts may rely as to all matters of Florida law upon the
opinion of Steel Hector & Davis LLP. Steel Hector & Davis LLP
may rely as to all matters of New York law on the opinion of Reid
& Priest LLP.
------------------------
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO
GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN
THOSE CONTAINED IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT
IN CONNECTION WITH AN OFFER MADE BY THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT, AND IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY FPL OR ANY OTHER PERSON, UNDERWRITER, DEALER OR AGENT.
NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF FPL SINCE THE DATE HEREOF OR THEREOF.
THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE
AN OFFER OR SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH
SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE
PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO
SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
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<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution
of the securities being registered, other than underwriting
and/or agents compensation, are:
Filing Fee for Registration Statement . . . . . . . $61,950
Legal and Accounting Fees . . . . . . . . . . . . $125,000
Printing (S-3, Prospectus, Prospectus
Supplement, etc.) . . . . . . . . . . . . . . . . . $15,000
Fee of Trustee . . . . . . . . . . . . . . . . . . . $5,250
Florida Taxes . . . . . . . . . . . . . . . . . $1,155,000
Rating Agencies' Fees . . . . . . . . . . . . . . . $75,000
Miscellaneous . . . . . . . . . . . . . . . . . . . $12,800
-------
Total . . . . . . . . . . . . . . . . . . . . $1,450,000
==========
-------------------
* Estimated
ITEM 15. 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 his
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 he 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
his conduct was lawful or had no reasonable cause to believe it
unlawful), (2) a transaction from which he derived an improper
personal benefit, (3) an action 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 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 conduct was lawful or had no reasonable cause to believe his
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 a shareholder,
conscious disregard for the best interest of FPL, or willful
misconduct, or (v) in proceeding by or in the right of someone
other than FPL or a shareholder, recklessness or an act or
II-1
<PAGE>
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 directors; 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 attorneys' 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 16. EXHIBITS.
1(a) - Form of Underwriting Agreement.
1(b) - Form of Distribution 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, 1993, 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, 1993, 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, 1993, 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, 1993, 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, 1993, 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, 1993, 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, 1993, File
No. 1-3545).
*4(h) - Mortgage and Deed of Trust dated as of January 1, 1944,
and Ninety-seven 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. 2-46502;
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
II-2
<PAGE>
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; Exhibit
4(i) to Form 10-Q for the quarter ended June 30, 1994,
File No. 1-3545; Exhibit 4(b) to Form 10-Q for the
quarter ended June 30, 1995, File No. 1-3545; and
Exhibit 4(a) to Form 10-Q for the quarter ended March
31, 1996, File No. 1-3545).
4(i) - Form of Supplemental Indenture relating to New Bonds.
5(a) - Opinion of Steel Hector & Davis LLP, counsel to FPL.
5(b) - Opinion of Reid & Priest LLP, co-counsel to FPL.
*12 - Computation of Ratio of Earnings to Fixed Charges (filed
as Exhibit 12 to Form 10-K for the fiscal year ended
December 31, 1997, File No. 1-3545 and as Exhibit 12 to
Form 10-Q for the quarter ended March 31, 1998, File No.
1-3545).
23(a) - Consent of Deloitte & Touche LLP.
23(b) - Consent of Steel Hector & Davis LLP (contained in
opinion filed as Exhibit 5(a) hereto).
23(c) - Consent of Reid & Priest LLP (contained in opinion
filed as Exhibit 5(b) hereto).
24 - Power of Attorney (included on the signature page of
this registration statement).
25 - Statement on Form T-1 of Bankers Trust Company with
respect to the Mortgage.
-----------------
* Incorporated herein by reference as indicated.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) to include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) to reflect in the Prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement; and
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (i) and (ii) do not apply if
the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed with or furnished to the SEC by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's Annual Report
pursuant to Section 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in the 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.
II-3
<PAGE>
Insofar as indemnification for liabilities arising under the
Securities Act 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 SEC such indemnification
is against public policy as expressed in the Securities 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 Securities Act and will be governed by
the final adjudication of such issue.
II-4
<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 certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and 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 18th of May
1998.
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 below by the
following persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ James L. Broadhead
---------------------- Principal Executive
James L. Broadhead Officer and Director
(Chairman of the Board)
/s/ K. Michael Davis
-----------------------
K. Michael Davis Principal Financial
(Vice President, and Accounting
Accounting, Controller Officer
and Chief Accounting
Officer)
/s/ Dennis P. Coyle
----------------------
Dennis P. Coyle
/s/ Lawrence J. Kelleher
-----------------------
Lawrence J. Kelleher
/s/ Thomas F. Plunkett May 18, 1998
----------------------- Directors
Thomas F. Plunkett
/s/ C.O. Woody
-----------------------
C.O. Woody
/s/ Michael W. Yackira
------------------------
Michael W. Yackira
II-5
<PAGE>
EXHIBIT INDEX
Exhibit Description
------- -----------
1(a) - Form of Underwriting Agreement.
1(b) - Form of Distribution 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, 1993, 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, 1993, 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, 1993, 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, 1993, 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, 1993, 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, 1993, 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, 1993, File
No. 1-3545).
*4(h) - Mortgage and Deed of Trust dated as of January 1, 1944,
and Ninety-seven 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. 2-46502;
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; Exhibit
4(i) to Form 10-Q for the quarter ended June 30, 1994,
File No. 1-3545; Exhibit 4(b) to Form 10-Q for the
quarter ended June 30, 1995, File No. 1-3545; and
Exhibit 4(a) to Form 10-Q for the quarter ended March
31, 1996, File No. 1-3545).
4(i) - Form of Supplemental Indenture relating to New Bonds.
5(a) - Opinion of Steel Hector & Davis LLP, counsel to FPL.
5(b) - Opinion of Reid & Priest LLP, co-counsel to FPL.
*12 - Computation of Ratio of Earnings to Fixed Charges (filed
as Exhibit 12 to Form 10-K for the fiscal year ended
December 31, 1997, File No. 1-3545 and as Exhibit 12 to
Form 10-Q for the quarter ended March 31, 1998, File No.
1-3545).
23(a) - Consent of Deloitte & Touche LLP.
23(b) - Consent of Steel Hector & Davis LLP (contained in
opinion filed as Exhibit 5(a) hereto).
23(c) - Consent of Reid & Priest LLP (contained in opinion
filed as Exhibit 5(b) hereto).
24 - Power of Attorney (included on the signature page of
this registration statement).
25 - Statement on Form T-1 of Bankers Trust Company with
respect to the Mortgage.
-----------------
* Incorporated herein by reference as indicated.
EXHIBIT 1(A)
FLORIDA POWER & LIGHT COMPANY
First Mortgage Bonds
Underwriting Agreement
[Date]
AGREEMENT between FLORIDA POWER & LIGHT COMPANY, a Florida
corporation ("FPL"), and the several Underwriters, or the
Underwriter, as the case may be, named in Schedule A to the Form
of Proposal (the "Proposal") to which this underwriting agreement
is attached (the underwriting agreement, together with the
Proposal, are referred to jointly herein as "this agreement" or
the "Underwriting Agreement") relating to the issuance and sale
by FPL of its First Mortgage Bonds of the series designation,
with the terms and in the principal amount as set forth in this
agreement (the "Bonds").
The term "Underwriters" as used herein shall be deemed to
mean the firm or corporation or the several firms or corporations
named in Schedule A to the Proposal and any underwriter
substituted as provided in Section 4 hereof and the term
"Underwriter" shall be deemed to mean one of such Underwriters.
The term "Representatives," as used herein, shall be deemed to
mean the representative or representatives, if any, named in the
questionnaire heretofore submitted to FPL by each of the
Underwriters, who by signing the Proposal represent that it or
they have been authorized by each Underwriter to sign such
Proposal and enter into this agreement on behalf of such
Underwriter and to act for it in the manner herein provided. All
obligations of the Underwriters hereunder are several and not
joint. If more than one firm is named in Schedule A to the
Proposal, any action under or in respect of this agreement may be
taken by such firms jointly as the Representatives or by one of
the firms acting on behalf of the Representatives and such action
will be binding upon all the Underwriters.
The Bonds will be a series of First Mortgage Bonds ("First
Mortgage Bonds") issued by FPL under its Mortgage and Deed of
Trust, dated as of January 1, 1944, to Bankers Trust Company, as
Trustee (the "Mortgage Trustee"), and The Florida National Bank
of Jacksonville (now resigned), as heretofore supplemented and as
it will be further supplemented by a supplemental indenture
relating to the Bonds ("Supplemental Indenture") in substantially
the form heretofore delivered to the Representatives. Such
Mortgage and Deed of Trust as it has been and will be so
supplemented is hereinafter called the "Mortgage".
FPL has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3,
including a prospectus ("registration statement No. 33-61390"),
for the registration of $1,220,300,000 aggregate principal amount
of its First Mortgage Bonds under the Securities Act of 1933, as
amended (the "Securities Act"), which registration statement has
been declared effective by the Commission. FPL also filed with
the Commission a registration statement on Form S-3, including a
prospectus ("registration statement No. ") for the
--------
registration of $210,000,000 of its First Mortgage Bonds, which
registration statement has been declared effective by the
Commission. All but $290,000,000 principal amount of First
Mortgage Bonds registered with the Commission under the
Securities Act pursuant to registration statement No. 33-61390 ,
as amended, have been previously issued. References herein to
the term "Registration Statement" as of any given date shall mean
registration statement No. and registration statement
-------
No. 33-61390, each as amended or supplemented to such date,
including all documents incorporated by reference therein as of
such date pursuant to Item 12 of Form S-3 ("Incorporated
Documents"). References herein to the term "Prospectus" as of
any given date shall mean the prospectus forming a part of
registration statement No. , as supplemented by a
---------
prospectus supplement relating to the Bonds proposed to be filed
pursuant to Rule 424 of the general rules and regulations under
the Securities Act ("Rule 424"), and as further amended or
supplemented as of such date (other than amendments or
supplements relating to First Mortgage Bonds other than the Bonds
or, when referring to the Prospectus relating to a particular
offering of the Bonds, Bonds other than the Bonds being offered
on such date), including all Incorporated Documents. References
herein to the term "Effective Date" shall be deemed to refer to
the later of the time and date that registration statement No.
was declared effective and of the filing of FPL's
-------
most recent Annual Report on Form 10-K if such filing is made
prior to the Closing Date (as hereafter defined). Prior to the
termination of the offering of the Bonds, FPL will not file any
amendment to the Registration Statement or any amendment or
supplement to the Prospectus without prior notice to the
Representatives and to Winthrop, Stimson, Putnam & Roberts, who
are acting as counsel on behalf of the several Underwriters
("Counsel for the Underwriters"), or any such amendment or
supplement to which the Representatives shall reasonably object
in writing, or which shall be unsatisfactory to Counsel for the
Underwriters.
SECTION 1. Representations and Warranties of FPL. FPL
-------------------------------------
represents and warrants to the several Underwriters that:
(a) The Registration Statement at the Effective Date
fully complied, and the Prospectus both on the date it is
filed with, or transmitted for filing to, the Commission,
pursuant to Rule 424 (such date, the "424 Date") and at the
Closing Date (as hereinafter defined), and the Registration
Statement and the Mortgage at the Closing Date, will fully
comply, in all material respects with the applicable
provisions of the Securities Act and the Trust Indenture Act
of 1939, as amended (the "1939 Act"), as applicable and, in
each case, the applicable instructions, rules and
regulations of the Commission with respect thereto; at the
Effective Date, the Registration Statement did not, and at
the Closing Date, the Registration Statement will not,
contain an untrue statement of a material fact, or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading; the
Prospectus, at the 424 Date and at the Closing Date, will
not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements contained therein, in the light of the
circumstances under which they were made, not misleading;
and the Incorporated Documents, when filed with the
Commission, fully complied or will fully comply in all
material respects with the applicable provisions of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the applicable instructions, rules and
regulations of the Commission thereunder; provided, that the
foregoing representations and warranties in this subsection
(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 any Underwriter for use
in connection with the preparation of the Registration
Statement or the Prospectus, or to any statements in or
omissions from any Statement of Eligibility and
Qualification on Form T-1, or amendments thereto, of the
Mortgage Trustee.
(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
audited financial statements, are independent public
accountants as required by the Securities Act and the
Exchange Act and the rules and regulations of the Commission
thereunder.
(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 Bonds when issued and delivered as provided herein will
constitute legal, valid and binding obligations of FPL in
accordance with their terms, except as limited by
bankruptcy, insolvency or other laws affecting mortgagees'
and other creditors' rights generally and equitable
limitations on the enforceability of specific remedies.
(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
Mortgage 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) All the property to be subjected to the lien of
the Mortgage will be adequately described therein.
SECTION 2. Purchase and Sale. On the basis of the
-----------------
representations and warranties herein contained, and subject to
the terms and conditions in this agreement set forth, FPL agrees
to sell to the respective Underwriters named in Schedule A to the
Proposal, severally and not jointly, and the respective
Underwriters agree, severally and not jointly, to purchase from
FPL, the respective principal amounts of Bonds set forth opposite
their respective names in Schedule A to the Proposal at the
purchase price set forth in the Proposal.
SECTION 3. Public Offering. The Underwriters propose to
---------------
make a bona fide public offering of the Bonds as set forth in the
Prospectus, such public offering to be made as soon after the
execution of this agreement as practicable, subject, however, to
the terms and conditions of this agreement.
SECTION 4. Time and Place of Closing, Default of
--------------------------------------
Underwriter. Delivery of the Bonds and payment therefor by
-----------
certified or official bank check or checks, payable to the order
of FPL in New York Clearing House or similar next day funds or by
wire transfer in federal funds (or in such other manner as may be
set forth in the Proposal), shall be made at the time, date and
place set forth in the Proposal, or at such other time, date or
place as shall be agreed upon in writing by FPL and the
Representatives. The hour and date of such delivery and payment
are herein called the "Closing Date".
The Bonds shall be delivered to the Representatives for the
respective accounts of the Underwriters in fully registered form
in such authorized denominations and registered in such names as
the Representatives may reasonably request in writing not later
than 12:30 p.m., New York City time, on the third business day
prior to the Closing Date, or to the extent not so requested,
registered in the names of the respective Underwriters in such
authorized denominations as FPL shall determine. For the purpose
of expediting the checking of the Bonds by the Representatives on
behalf of the Underwriters, FPL agrees to make such Bonds
available to the Representatives for such purpose at the office
of Reid & Priest LLP, 40 West 57th Street, New York, New York
10019 not later than 2:00 p.m., New York City time, on the
business day preceding the Closing Date, or at such other time
and place as may be agreed upon by FPL and the Representatives.
If any Underwriter shall fail to purchase and pay for the
principal amount of the Bonds which such Underwriter has agreed
to purchase and pay for hereunder (otherwise than by reason of
any failure on the part of FPL to comply with any of the
provisions contained herein), the non-defaulting Underwriters
shall be obligated to take up and pay for (in addition to the
respective principal amount of the Bonds set forth opposite their
respective names in Schedule A to the Proposal) the principal
amount of the Bonds which such defaulting Underwriter or
Underwriters failed to take up and pay for, up to a principal
amount thereof equal to, in the case of each such remaining
Underwriter, ten percent (10%) of the principal amount of the
Bonds set forth opposite the name of such remaining Underwriter
in said Schedule A to the Proposal, and such remaining
Underwriters shall have the right, within 24 hours of receipt of
such notice, either to take up and pay for (in such proportion as
may be agreed upon among them), or to substitute another
Underwriter or Underwriters, satisfactory to FPL, to take up and
pay for, the remaining principal amount of the Bonds which the
defaulting Underwriter or Underwriters agreed but failed to
purchase. If any unpurchased Bonds still remain, then FPL shall
be entitled to a further period of 24 hours within which to
procure another party or other parties, members of the National
Association of Securities Dealers, Inc. (or, if not members of
such Association, who are not eligible for membership in said
Association and who agree (i) to make no sales within the United
States, its territories or its possessions or to persons who are
citizens thereof or residents therein and (ii) in making sales to
comply with said Association's Conduct Rules) and satisfactory to
the Representatives to purchase such Bonds on the terms set forth
in this agreement. In the event that, within the respective
prescribed periods, the non-defaulting Underwriters notify FPL
that they have arranged for the purchase of such Bonds, or FPL
notifies the non-defaulting Underwriters that it has arranged for
the purchase of such Bonds, the non-defaulting Underwriters or
FPL shall have the right to postpone the Closing Date for a
period of not more than three full business days beyond the
expiration of the respective prescribed periods in order to
effect whatever changes may thus be made necessary in the
Registration Statement or the Prospectus or in any other
documents or arrangements. In the event that neither the non-
defaulting Underwriters nor FPL has arranged for the purchase of
such Bonds by another party or parties as above provided, then
this agreement shall terminate without any liability on the part
of FPL or any Underwriter (other than an Underwriter which shall
have failed or refused, otherwise than for some reason
sufficient to justify, in accordance with the terms hereof, the
cancellation or termination of its obligations hereunder, to
purchase and pay for the Bonds which such Underwriter has agreed
to purchase as provided in Section 2 hereof), except as otherwise
provided in subsections (c) and (e) of Section 5 hereof.
SECTION 5. Covenants of FPL. FPL agrees that:
----------------
(a) It will promptly transmit copies of the Prospectus
to the Commission for filing pursuant to Rule 424.
(b) It will deliver to the Representatives and to
Counsel for the Underwriters one signed copy of the
Registration Statement or, if a signed copy is not
available, one conformed copy of the Registration Statement
certified by an officer of FPL to be in the form as
originally filed, including all Incorporated Documents and
all exhibits except those incorporated by reference, which
relate to the Bonds, including a signed or conformed copy of
each consent and certificate included therein or filed as an
exhibit thereto. FPL will deliver to the Underwriters
through the Representatives as soon as practicable after the
date of this agreement as many copies of the Prospectus as
the Representatives may reasonably request for the purposes
contemplated by the Securities Act. FPL will promptly
advise the Representatives 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
termination of the offering of the Bonds hereunder. FPL
will use its best efforts to prevent the issuance of any
such stop order and to secure the prompt removal thereof, if
issued.
(c) It will pay all expenses in connection with (i)
the preparation and filing by it of the Registration
Statement and Prospectus, (ii) the issuance and delivery of
the Bonds as provided in Section 4 hereof, (iii) the
preparation, execution, filing and recording of the
Supplemental Indenture, and (iv) the printing and delivery
to the Representatives for the account of the Underwriters,
in reasonable quantities, of copies of the Registration
Statement and the Prospectus and the Supplemental Indenture
and will pay all taxes, if any (but not including any
transfer taxes), on the issuance of the Bonds and the
recordation of the Supplemental Indenture. FPL shall not,
however, be required to pay any amount for any expenses of
the Representatives or any of the Underwriters, except as
provided in Sections 6 and 7 hereof and except that if this
agreement shall be terminated in accordance with the
provisions of Section 6, 7 or 9 hereof, FPL will pay the
fees and disbursements of Counsel for the Underwriters,
whose fees and disbursements the Underwriters agree to pay
in any other event. FPL shall not in any event be liable to
any of the several Underwriters for damages on account of
loss of anticipated profits.
(d) During a period of nine months after the date of
this agreement, if any event relating to or affecting FPL or
of which FPL shall be advised in writing by the
Representatives shall occur which, in FPL's opinion, should
be set forth in a supplement to or an amendment of the
Prospectus in order to make the Prospectus not misleading in
light of the circumstances when it is delivered to a
purchaser, FPL will forthwith at its expense prepare and
furnish to the Representatives a reasonable number of copies
of a supplement or supplements or an amendment or amendments
to the Prospectus which will supplement or amend the
Prospectus so that as supplemented or amended it will not
include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the
statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading;
provided that should such event relate solely to activities
of any of the Underwriters, then the Underwriters shall
assume the expense of preparing and furnishing copies of any
such amendment or supplement. In case any Underwriter is
required to deliver a Prospectus after the expiration of
nine months after the date of this agreement, FPL upon the
request of the Representatives will furnish to the
Representatives, at the expense of such Underwriter, a
reasonable quantity of a supplemented or amended Prospectus
or supplements or amendments to the Prospectus complying
with Section 10 of the Securities Act.
(e) It will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the
Bonds for offer and sale under the blue sky laws of such
jurisdictions as the Representatives may designate and will
pay filing fees in the aggregate not exceeding $ ,
-----
provided that FPL shall not be required to qualify as a
foreign corporation or dealer in securities, or to file any
consents to service of process under the laws of any
jurisdiction, or to meet other requirements deemed by FPL to
be unduly burdensome.
(f) It 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) 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.
(g) On or before the Closing Date, it will, if
applicable, cause (i) at least one counterpart of the
Supplemental Indenture to be duly recorded in the States of
Florida or Georgia and (ii) all intangible and documentary
stamp taxes due in connection with the issuance of the Bonds
and the recording of the Supplemental Indenture to be paid.
Within 30 days following the Closing Date, FPL will, if
applicable, cause the Supplemental Indenture to be duly
recorded in all other counties in which property of FPL is
located.
SECTION 6. Conditions of Underwriters' Obligations. The
---------------------------------------
several obligations of the Underwriters to purchase and pay for
the Bonds shall be subject to the accuracy of, and compliance
with, the representations and warranties of FPL contained herein
on the Closing Date, to the performance by FPL of its obligations
to be performed hereunder on or prior to the Closing Date and to
the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing
Date; no order of the Commission directed to the adequacy of
any document incorporated by reference shall have been
issued; no proceedings for either such purpose shall be
pending before, or threatened by, the Commission on such
date; and the Representatives shall have received, prior to
payment for the Bonds, a certificate of FPL dated the
Closing Date to the effect that, to the best of its
knowledge, no such order is in effect and no proceedings for
such purpose are pending before, or to the knowledge of FPL
threatened by, the Commission.
(b) On the Closing Date, there shall be in full force
and effect an authorization of the Florida Public Service
Commission with respect to the issuance and sale of the
Bonds on the terms herein stated or contemplated, and
containing no provision unacceptable to the Representatives
by reason of the fact that it is materially adverse to FPL,
it being understood that no authorization provided to
Counsel for the Underwriters and in effect at the date of
this agreement contains any such unacceptable provision.
(c) At the Closing Date, the Representatives shall
have received from Steel Hector & Davis LLP, counsel to FPL,
a favorable opinion (with a copy thereof for each of the
Underwriters), which opinion will not pass upon compliance
with provisions of the blue sky laws of any jurisdiction, in
form and substance satisfactory to Counsel for the
Underwriters, to the effect that:
(i) FPL is a validly organized and existing
corporation and is in good standing under the laws of
the State of Florida, and is doing business in that
State, and has valid franchises, licenses and permits
adequate for the conduct of its business;
(ii) FPL is a corporation duly authorized by
its Charter to conduct the business which it is now
conducting as set forth in the Prospectus; FPL is
subject, as to retail rates and services, issuance of
securities, accounting and certain other matters, to the
jurisdiction of the Florida Public Service Commission;
and FPL is subject, as to wholesale rates, accounting
and certain other matters to the jurisdiction of the
Federal Energy Regulatory Commission;
(iii) the Mortgage has been duly and validly
authorized by all necessary corporate action, has been
duly and validly executed and delivered, and is a valid
and binding instrument enforceable in accordance with
its terms, except as limited by bankruptcy, insolvency
or other laws affecting mortgagees' and other creditors'
rights generally and equitable limitations on the
enforceability of specific remedies;
(iv) the Bonds are valid and binding
obligations of FPL in accordance with their terms,
except as limited by bankruptcy, insolvency or other
laws affecting mortgagees' and other creditors' rights
generally and equitable limitations on the
enforceability of specific remedies, and are entitled to
the benefit of the security afforded by the Mortgage;
(v) the Registration Statement, at the Effective
Date, and the Prospectus, at the 424 Date (except as to
the financial statements and other financial or
statistical data contained or incorporated by reference
therein, upon which such opinion need not pass and
except for those parts of the Registration Statement
that constitute the Statement of Eligibility and
Qualification on Form T-1, upon which such opinion need
not pass), complied as to form in all material respects
with the applicable requirements of the Securities Act
and the applicable instructions, rules and regulations
of the Commission thereunder and the Incorporated
Documents (except as to the financial statements and
other financial or statistical data contained or
incorporated by reference therein, upon which such
opinion need not pass), at the time they were filed with
the Commission, complied as to form in all material
respects with the applicable requirements of the
Exchange Act and the applicable instructions, rules and
regulations of the Commission thereunder. The
Registration Statement has become, and is at the Closing
Date, effective under the Securities Act, and to the
best of the knowledge of said counsel, no proceedings
for a stop order with respect thereto are pending or
threatened under Section 8 of the Securities Act;
(vi) the consummation of the transactions
herein contemplated and the fulfillment of the terms
hereof and the compliance by FPL with all the terms and
provisions of the Mortgage will not result in a breach
of any of the terms or provisions of, or constitute a
default under, the Charter or by-laws of FPL or any
indenture, mortgage, deed of trust or other agreement or
instrument the terms of which are known to such counsel
to which FPL is now a party, except where such breach or
default would not have a material adverse effect on the
business, properties or financial condition of FPL;
(vii) nothing has come to the attention of said
counsel that would lead them to believe that the
Registration Statement (except as to financial
statements and other financial or statistical data
contained or incorporated by reference therein, upon
which such opinion need not pass and except for those
parts of the Registration Statement that constitute the
Statement of Eligibility and Qualification on Form T-1,
upon which such opinion need not pass), at the Effective
Date, contained any untrue statement of a material fact
or omitted to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading or that the Prospectus, at the
424 Date, and at the Closing Date (except as aforesaid)
included or includes, any untrue statement of a material
fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in
the light of the circumstances under which they were
made, not misleading, provided that such counsel may
state that their belief is based upon their
participation in the preparation of the Registration
Statement and the Prospectus and any supplements and
amendments thereto and review and discussion of the
contents thereof, but is without independent check or
verification except as specified;
(viii) the Bonds are being issued and sold
pursuant to the authority contained in an order of the
Florida Public Service Commission, which authority is
adequate to permit the issuance and sale of the Bonds.
To the best of the knowledge of said counsel, said
authorization is still in full force and effect, and no
further approval, authorization, consent or order of any
public board or body (other than in connection or in
compliance with the provisions of the blue sky laws of
any jurisdiction) is legally required for the
authorization of the issuance and sale of the Bonds;
(ix) the Bonds conform, as to legal matters,
with the statements concerning them made under the
headings "New Bonds" and "Certain Terms of the Offered
Bonds" in the Prospectus;
(x) the Mortgage is duly qualified under the 1939
Act;
(xi) this agreement has been duly and validly
authorized, executed and delivered by FPL;
(xii) if Bonds are to be sold pursuant to this
agreement on the Closing Date, as to the Mortgaged and
Pledged Property, as defined in the Mortgage, FPL has
satisfactory title to any easements and personal
properties, and good and marketable or insurable title
in fee simple to any other real properties (except as
FPL's interest is stated to be otherwise), subject only
to Excepted Encumbrances, as defined in the Mortgage, to
any lien, if any, existing or placed thereon at the time
of acquisition thereof by FPL, to minor defects and
encumbrances customarily found in the case of properties
of like size and character and which, in the opinion of
said counsel, would not impair the use thereof by FPL
(all of which title exceptions, encumbrances, liens and
defects are hereinafter referred to as "Exceptions"),
and to the lien of the Mortgage; the Mortgage
constitutes a valid, direct, and first mortgage lien
upon the Mortgaged and Pledged Property now owned by
FPL, subject, however, to the Exceptions and as set
forth in the last sentence of this paragraph; and the
description of properties in the Mortgage is adequate to
constitute the Mortgage a lien on Mortgaged and Pledged
Property hereafter acquired by FPL, subject, however, to
the Exceptions and except as limited by bankruptcy,
insolvency or other laws affecting mortgagees' and other
creditors' rights generally and equitable limitations on
the enforceability of specific remedies. The
Supplemental Indenture is in proper form for recording
in all places required; and upon such recording, the
Supplemental Indenture will constitute adequate record
notice to perfect the lien of the Mortgage as to all
Mortgaged and Pledged Property acquired by FPL
subsequent to the recording of the
----------
Supplemental Indenture and prior to the recording of the
Supplemental Indenture;
(xiii) except as stated or referred to in the
Prospectus, there are no material pending legal
proceedings to which FPL is a party or of which property
of FPL is the subject which if determined adversely
would have a material adverse effect on FPL, and, to the
best of the knowledge of said counsel, no such
proceeding is known to be contemplated by governmental
authorities; and
(xiv) the information contained in the
Prospectus, which is stated therein to have been made in
reliance upon the authority of said counsel or is
specifically attributed to them, has been reviewed by
them and is correct.
In said opinion such counsel may rely as to all
matters of New York law on an opinion of Reid & Priest
LLP and as to matters relating to Mortgaged and Pledged
Property located in the State of Georgia on (i) prior
opinions provided to FPL on matters of Georgia law and
(ii) a current opinion from Georgia counsel.
(d) At the Closing Date, the Representatives shall
have received from Reid & Priest LLP, counsel to FPL, a
favorable opinion (with a copy thereof for each of the
Underwriters), which opinion will not pass upon compliance
with provisions of the blue sky laws of any jurisdiction, in
form and substance satisfactory to Counsel for the
Underwriters, to the same effect with respect to matters
enumerated in paragraphs (iii) through (xi) in subsection
(c) of this Section 6. In said opinion such Counsel may
rely as to all matters of Florida law on the opinion of
Steel Hector & Davis LLP.
(e) At the Closing Date, the Representatives shall
have received from Counsel for the Underwriters a favorable
opinion (with a copy thereof for each of the Underwriters)
to the same effect with respect to the matters enumerated in
(iii) - (v) and (vii) - (xi) of subsection (c) of this
Section 6 as the opinion required by said subsection (c).
In said opinion such counsel may rely as to all matters of
Florida law on the opinion of Steel Hector & Davis LLP, and
will not pass upon the incorporation of FPL, titles to
property, franchises or the lien of the Mortgage.
(f) At the Closing Date, the Representatives shall
have received from Deloitte & Touche LLP a letter (with
copies thereof for each of the Underwriters) to the effect
that (i) they are independent public accountants with
respect to FPL within the meaning of the Securities Act and
the Exchange Act and the applicable published rules and
regulations thereunder; (ii) in their opinion, the
consolidated financial statements audited by them and
incorporated by reference in the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and
the published rules and regulations thereunder; (iii) on the
basis of a reading of the unaudited condensed consolidated
financial statements of FPL incorporated by reference in the
Prospectus, the latest available interim unaudited
consolidated financial statements of FPL since the close of
FPL's most recent audited fiscal year, the minutes and
consents of the Board of Directors, the Finance Committee of
the Board of Directors, the Stock Issuance Committee of the
Board of Directors, and the Shareholder of FPL since the end
of the most recent audited fiscal year, and inquiries of
officials of FPL who have responsibility for financial and
accounting matters (it being understood that the foregoing
procedures do not constitute an audit made in accordance
with generally accepted auditing standards and they would
not necessarily reveal matters of significance with respect
to the comments made in such letter, and accordingly that
Deloitte & Touche LLP make no representation as to the
sufficiency of such procedures for the several Underwriters'
purposes), nothing has come to their attention which caused
them to believe that (a) the unaudited condensed
consolidated financial statements of FPL incorporated by
reference in the Prospectus (1) do not comply as to form in
all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and
the published rules and regulations thereunder and (2)
except as disclosed in the Prospectus are not in conformity
with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited
consolidated financial statements of FPL incorporated by
reference in the Prospectus, (b) at the date of the latest
available interim balance sheet read by them and at a
specified date not more than five days prior to the Closing
Date there was any change in the common stock, additional
paid-in capital, preferred stock or long-term debt of FPL
and its subsidiaries, or decrease in their net assets, in
each case as compared with amounts shown in the most recent
consolidated balance sheet incorporated by reference in the
Prospectus, except in all instances for changes or decreases
which the Prospectus discloses have occurred or may occur,
or as occasioned by the declaration, provision for, or
payment of dividends, or which are described in such letter,
or (c) for the period from the date of the most recent
consolidated balance sheet incorporated by reference in the
Prospectus to the latest available interim balance sheet
read by them and for the period from the date of the latest
available interim balance sheet read by them to a specified
date not more than five days prior to the Closing Date,
there were any decreases, as compared with the corresponding
period in the preceding year, in total consolidated
operating revenues or in net income or net income available
to FPL Group, Inc., except in all instances for decreases
which the Prospectus discloses have occurred or may occur,
or which are described in such letter; and (iv) they have
carried out certain procedures and made certain findings, as
specified in such letter, with respect to certain amounts
included in the Prospectus and Exhibit 12 to the
Registration Statement and such other items as the
Representatives may reasonably request.
(g) Since the respective most recent dates as of which
information is given in the Registration Statement and
Prospectus and up to the Closing Date, there shall have been
no material adverse change in the business, properties or
financial condition of FPL, except as reflected in or
contemplated by the Registration Statement and Prospectus,
and since such dates and up to the Closing Date, there shall
have been no material transaction entered into by FPL other
than transactions disclosed by the Registration Statement
and the Prospectus and transactions in the ordinary course
of business; and at the Closing Date, the Representatives
shall have received a certificate to such effect, signed by
FPL.
(h) All legal proceedings to be taken in connection
with the issuance and sale of the Bonds shall have been
satisfactory in form and substance to Counsel for the
Underwriters.
In case any of the conditions specified above in this
Section 6 shall not have been fulfilled, this agreement may be
terminated by the Representatives, upon mailing or delivering
written notice thereof to FPL. Any such termination shall be
without liability of any party to any other party except as
otherwise provided in subsections (c) and (e) of Section 5 hereof
and except that in the event of such termination by the
Representatives, FPL shall reimburse the Underwriters for out-of-
pocket expenses reasonably incurred by them in connection with
the transactions contemplated by this agreement, not in excess,
however, of an aggregate of $ .
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SECTION 7. Conditions of FPL's Obligations. The
-------------------------------
obligation of FPL to deliver the Bonds shall be subject to the
following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, and no order directed to the
adequacy of any document incorporated by reference, shall be
in effect at the Closing Date, and no proceedings for either
such purpose shall be pending before, or threatened by, the
Commission on such date.
(b) On the Closing Date there shall be in full force
and effect an authorization of the Florida Public Service
Commission with respect to the issuance and sale of the
Bonds on the terms herein stated or contemplated, and
containing no provision unacceptable to FPL by reason of the
fact that it is materially adverse to FPL, it being
understood that no authorization in effect at the date of
this agreement contains any such unacceptable provision.
In case any of the conditions specified in this Section 7
shall not have been fulfilled, this agreement may be terminated
by FPL upon mailing or delivering written notice thereof to the
Representatives. Any such termination shall be without liability
of any party to any other party, except as otherwise provided in
subsections (c) and (e) of Section 5 hereof and except that in
the event of such termination by FPL, FPL shall reimburse the
Underwriters for out-of-pocket expenses reasonably incurred by
them in connection with the transactions contemplated by this
agreement, not in excess, however, of an aggregate of $ .
-----
SECTION 8. Indemnification.
---------------
(a) FPL agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter
within the meaning of Section 15 of the Securities Act
against any and all losses, claims, damages or liabilities,
joint or several, to which it or any of them may become
subject under the Securities Act or any other statute or
common law, and to reimburse each such Underwriter and
controlling person for any legal or other expenses
(including, to the extent hereinafter provided, reasonable
counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or
liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities,
expenses or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus (if used prior
to the Effective Date), including all Incorporated
Documents, or in the Registration Statement or the
Prospectus, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading;
provided, however, that the indemnity agreement contained in
this paragraph shall not apply to any such losses, claims,
damages, liabilities, expenses or actions arising out of, or
based upon, any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, if such
statement or omission was made in reliance upon and in
conformity with information furnished herein or to FPL in
writing by or on behalf of any Underwriter, through the
Representatives or otherwise, for use in connection with the
preparation of the Registration Statement or the Prospectus
or any amendment or supplement to either thereof, or arising
out of, or based upon, statements in or omissions from the
Statement of Eligibility and Qualification on Form T-1 of
the Mortgage Trustee and provided, further, that the
indemnity agreement contained in this paragraph in respect
of any preliminary prospectus shall not inure to the benefit
of any Underwriter (or of any person controlling such
Underwriter) on account of any such losses, claims, damages,
liabilities, expenses or actions arising from the sale of
the Bonds to any person if such Underwriter shall have
failed to send or give to such person (i) with or prior to
the written confirmation of such sale, a copy of the
Prospectus or the Prospectus as amended or supplemented, if
any amendments or supplements thereto shall have been
furnished at or prior to the time of written confirmation of
the sale involved, but exclusive of any Incorporated
Documents unless, with respect to the delivery of any
amendment or supplement, the alleged omission or alleged
untrue statement is not corrected in such amendment or
supplement at the time of confirmation, or (ii) with or
prior to the delivery of such Bonds to such person, a copy
of any amendment or supplement to the Prospectus which shall
have been furnished subsequent to such written confirmation
and prior to the delivery of such Bonds to such person,
exclusive of any Incorporated Documents unless, with respect
to the delivery of any amendment or supplement, the alleged
omission or alleged untrue statement was not corrected in
such amendment or supplement at the time of such delivery.
The indemnity agreement of FPL contained in this paragraph
and the representations and warranties of FPL contained in
Section 1 hereof shall remain operative and in full force
and effect, regardless of any investigation made by or on
behalf of any Underwriter or any such controlling person,
and shall survive the delivery of the Bonds. The
Underwriters agree promptly to notify FPL, and each other
Underwriter, of the commencement of any litigation or
proceedings against them or any of them or any such
controlling person in connection with the issuance and sale
of the Bonds.
(b) Each Underwriter agrees to indemnify and hold
harmless FPL, its officers and directors, and each person
who controls any thereof within the meaning of Section 15 of
the Securities Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act or
other statute or common law, and to reimburse each of them
for any legal or other expenses (including, to the extent
hereinafter provided, reasonable counsel fees) incurred by
them in connection with investigating any such losses,
claims, damages or liabilities, or in connection with
defending any actions, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or
are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement or Prospectus or the omission or alleged omission
to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading if such statement or omission was made in
reliance upon and in conformity with information furnished
herein or to FPL in writing by or on behalf of such
Underwriter, through the Representatives or otherwise, for
use in connection with the preparation of the Registration
Statement or the Prospectus or any amendment or supplement
to either thereof. The indemnity agreement of the
respective Underwriters 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 other Underwriter or any
such controlling person, and shall survive the delivery of
the Bonds. FPL agrees promptly to notify the
Representatives of the commencement of any litigation or
proceedings against FPL (or any controlling person thereof)
or any of its officers or directors in connection with the
issuance and sale of the Bonds.
(c) FPL and the several Underwriters each agree that,
upon the receipt of notice of the commencement of any action
against it, its officers and directors, or any person
controlling it as aforesaid, in respect of which indemnity
may be sought on account of any indemnity agreement
contained herein, it will promptly give written notice of
the commencement thereof to the party or parties against
whom indemnity shall be sought thereunder, but the omission
so to notify such indemnifying party or parties of any such
action shall not relieve such indemnifying party or parties
from any liability which it or they may have to the
indemnified party otherwise than on account of such
indemnity agreement. In case such notice of any such action
shall be so given, such indemnifying party shall be entitled
to participate at its own expense in the defense or, if it
so elects, to assume (in conjunction with any other
indemnifying parties) the defense of such action, in which
event such defense shall be conducted by counsel chosen by
such indemnifying party or parties and satisfactory to the
indemnified party or parties who shall be defendant or
defendants in such action, and such defendant or defendants
shall bear the fees and expenses of any additional counsel
retained by them; but if the indemnifying party shall elect
not to assume the defense of such action, such indemnifying
party will reimburse such indemnified party or parties for
the reasonable fees and expenses of any counsel retained by
them; provided, however, if the defendants in any such
action include both the indemnified party and 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).
SECTION 9. Termination. This agreement may be terminated
-----------
by the Representatives by delivering written notice thereof to
FPL, at any time prior to the Closing Date if (a) 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
New York Stock Exchange, Inc. or there shall have been
established by the New York Stock Exchange, Inc. or by the
Commission or by any federal or state agency or by the decision
of any court any limitation on prices for such trading or any
restrictions on the distribution of securities, or a general
banking moratorium declared by New York or federal authorities,
or (b) 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 (a) or (b) above on the financial markets of the
United States shall be such as to make it impracticable for the
Underwriters to enforce contracts for the sale of the Bonds.
This agreement may also be terminated at any time prior to the
Closing Date if in the judgment of the Representatives the
subject matter of any amendment or supplement to the Registration
Statement or Prospectus prepared and furnished by FPL reflects a
material adverse change in the business, properties or financial
condition of FPL which renders it either inadvisable to proceed
with such offering, if any, or inadvisable to proceed with the
delivery of the Bonds to be purchased hereunder. Any termination
of this agreement pursuant to this Section 9 shall be without
liability of any party to any other party except as otherwise
provided in subsections (c) and (e) of Section 5 hereof.
SECTION 10. Miscellaneous. The validity and
-------------
interpretation of this agreement shall be governed by the law of
the State of New York. This agreement shall inure to the benefit
of FPL, the several Underwriters and, with respect to the
provisions of Section 8 hereof, each controlling person referred
to in said Section 8, and their respective successors. Nothing
in this agreement is intended or shall be construed to give to
any other person, firm or corporation any legal or equitable
right, remedy or claim under or in respect of this agreement or
any provision herein contained. The term "successors" as used in
this agreement shall not include any purchaser, as such
purchaser, of any Bonds from any of the several Underwriters.
SECTION 11. Notices. All communications hereunder shall
-------
be in writing or by telegram and, if to the Underwriters, shall
be mailed or delivered to the Representatives at the address set
forth in the Proposal hereto, or if to FPL, shall be mailed or
delivered to it at 700 Universe Boulevard, Juno Beach, Florida
33408, attention: Treasurer.
EXHIBIT 1(b)
FLORIDA POWER & LIGHT COMPANY
SECURED MEDIUM-TERM NOTES, SERIES
--
DISTRIBUTION AGREEMENT
----------------------
[Date]
[Names and Addresses of Agents]
Ladies and Gentlemen:
The undersigned, Florida Power & Light Company, a Florida
corporation ("FPL"), hereby confirms its agreement with each of
you (individually, an "Agent" and collectively, the "Agents") as
follows:
1. APPOINTMENT OF AGENTS.
---------------------
(a) FPL has authorized by appropriate corporate action and
proposes to issue and sell in the manner contemplated by this
agreement up to $ aggregate principal amount of
------------
Securities (as defined in Section 3(a) hereof) registered
pursuant to the Registration Statement (as defined in
Section 3(a) hereof).
(b) Subject to the terms and conditions stated in this
agreement, FPL hereby appoints each of you as Agent for the
purpose of offering and selling the Securities. FPL reserves
the right to sell the Securities on its own behalf directly to
investors and, from time to time, to appoint additional agents
to sell the Securities, provided that FPL shall furnish the
Agents with reasonable advance notification of the addition of
any agent to sell the Securities and further provided that
each such additional agent shall be required to execute a
distribution agreement in form and substance substantially
similar to this agreement, except that FPL and each such
additional agent may change the form and substance of the
commission rate schedule contained in each respective
distribution agreement in any manner acceptable to FPL and
such additional agent. FPL further reserves the right to
change the principal amount of Securities to be sold by the
Agents pursuant to this agreement, provided that FPL shall
furnish the Agents with reasonable advance notification of
such change. The foregoing shall not be construed to prevent
FPL from selling at any time any of its securities, including
the Securities in a firm commitment underwriting pursuant to
an underwriting agreement that does not provide for a
continuous offering of such securities. In the event that FPL
shall sell securities during the period between the time at
which FPL has accepted an offer to purchase Securities
solicited by an Agent from such purchaser under the terms and
conditions of this agreement and the Settlement Date (as
defined in Section 4 hereof) and such sale directly results in
the failure of such purchaser to accept delivery or pay for
the Securities, FPL shall be obligated to pay the Agent a
commission in respect of such Securities to be calculated in
accordance with Exhibit B attached hereto.
(c) On the basis of the representations and warranties
contained herein, but subject to the terms and conditions
herein set forth, each Agent agrees, as agent of FPL, to use
its reasonable best efforts when requested by FPL to solicit
offers to purchase the Securities upon the terms and
conditions set forth in the Prospectus (as defined in Section
3(a) hereof) and the Administrative Procedures attached hereto
as Exhibit A, as they may be amended from time to time (the
"Procedures").
(d) Administrative procedures relating to the offer and sale
of the Securities, the issue and delivery of certificates
representing the Securities and payment for the Securities are
set forth in the Procedures. Each Agent and FPL agree to
perform the respective duties and obligations to be performed
by each of them as provided in the Procedures. The Procedures
may be amended only by a written agreement between FPL and the
Agents. The Agents agree that the principal amount of
Securities to be offered and sold from time to time, the
prices, the interest rates or the method, if any, of
determining such interest rates, the maturities, redemption
provisions, and other terms at which the Securities are to be
offered and sold will be in compliance with limitations
established by FPL with the Agents in accordance with the
Procedures.
(e) Promptly upon the Settlement Date, each Agent will be
paid a commission for such Agent's services in acting as an
agent for FPL in the sale of the Securities and not for a
purchase by such Agent as principal, in accordance with the
schedule set forth in Exhibit B hereto.
(f) Upon execution of this Distribution Agreement by FPL and
each Agent, it is agreed that the Distribution Agreement,
dated ("Prior Distribution Agreement"), among FPL
------------
and each of the Agents is terminated in accordance with
Section 11 of such Prior Distribution Agreement.
2. DESCRIPTION OF SECURITIES. FPL proposes to issue the
-------------------------
Securities under its Mortgage and Deed of Trust, dated as of
January 1, 1944, to Bankers Trust Company, as Trustee (the
"Trustee"), and The Florida National Bank of Jacksonville (now
resigned), as heretofore supplemented, pursuant to the
Supplemental Indenture relating to a principal
------------
amount not to exceed $ of First Mortgage Bonds,
--------------
designated Secured Medium-Term Notes, Series (the "Series
-- --
Notes") dated as of (the "Supplemental Indenture"),
-----------
previously delivered to the Agents. On the date hereof,
$ aggregate principal amount of such Series
-------------- --
Notes remain unissued under the Supplemental Indenture. The
Mortgage and Deed of Trust as it may be supplemented as of any
Settlement Date is hereafter called the "Mortgage".
The Securities shall have the maturities, interest rates or
the method, if any, of determining interest rates, redemption
provisions, and other terms as set forth in the Prospectus. The
Securities will be issued, and the terms thereof established,
from time to time by FPL in accordance with the Mortgage and the
Procedures.
3. REPRESENTATIONS AND WARRANTIES OF FPL. FPL represents
-------------------------------------
and warrants to each Agent that:
(a) It has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3,
including a prospectus ("registration statement
No. 33-61390"), for the registration of $1,220,300,000
aggregate principal amount of its First Mortgage Bonds under
the Securities Act of 1933, as amended (the "Securities Act"),
which registration statement has been declared effective by
the Commission. FPL also filed with the Commission a
registration statement on Form S-3, including a prospectus
("registration statement No. ") for the registration
---------
of $210,000,000 of its First Mortgage Bonds, which
registration statement has been declared effective by the
Commission. All but $290,000,000 principal amount of First
Mortgage Bonds registered with the Commission under the
Securities Act pursuant to registration statement
No. 33-61390, as amended, have been previously issued.
Subsequent to the date hereof, it will file with the
Commission any additional registration statement or
registration statements ("Subsequent Registration Statement")
with respect to its First Mortgage Bonds necessary to assure
that Securities (as defined below) offered and sold in
accordance with the terms of this Distribution Agreement are
registered under the Securities Act. References herein to the
term "Registration Statement" as of any given date shall
initially mean registration statement No. and
-------
registration statement No. 33-61390, each as amended or
supplemented to such date, including all documents
incorporated by reference therein as of such date pursuant to
Item 12 of Form S-3 ("Incorporated Documents"). If FPL files
a Subsequent Registration Statement with respect to its First
Mortgage Bonds which FPL has notified the Agents will be
available for offer and sale in accordance with the terms of
this Distribution Agreement ("Future Bonds"), at and after the
time such Subsequent Registration Statement is declared
effective by the Commission, references herein to the term
"Registration Statement" as of any given date shall mean such
Subsequent Registration Statement and, until such time as all
First Mortgage Bonds registered pursuant to registration
statement No. 33-63190 and/or registration statement
No. ("Current Bonds") have been issued and sold
-----------
(assuming that all Current Bonds are issued and sold before
any Future Bonds) or deregistered, as the case may be, said
registration statement No. 33-63190 and/or registration
statement No. , each as may be amended or
----------
supplemented at such time, including as of such time all
Incorporated Documents. References herein to the term
"Prospectus" at a particular time shall mean the combined
prospectus forming a part of registration statement
No. or, after the Subsequent Registration
------------
Statement is declared effective by the Commission, the
prospectus or combined prospectus forming a part of the
Subsequent Registration Statement, each as may be supplemented
by a prospectus supplement or prospectus supplements relating
to, as the case may be, Current Bonds or Future Bonds,
designated as Secured Medium-Term Notes, Series
---
("Securities"), proposed to be filed pursuant to Rule 424(b)
of the general rules and regulations of the Securities Act
("Rule 424"), and as it may have been amended or supplemented
at such time (other than, when referring to the Prospectus
relating to a particular offering of Securities, amendments or
supplements relating to Securities other than the Securities
being offered at a particular time), including all
Incorporated Documents. References herein to the term
"Effective Date" shall be deemed initially to refer to the
later of the time and date registration statement
No. was declared effective or the time and date of
----------
the filing thereafter of FPL's most recent Annual Report on
Form 10-K and, after any Subsequent Registration Statement has
been declared effective by the Commission, references to the
term "Effective Date" shall be deemed to refer to the later of
the time and date the Subsequent Registration Statement was
declared effective or the time and date of the filing
thereafter of FPL's most recent Annual Report on Form 10-K.
For purposes of this agreement, any Incorporated Document
filed with the Commission shall be deemed an amendment to the
Registration Statement and a supplement to the Prospectus.
(b) At the Effective Date, the Registration Statement fully
complied, and on each date the Prospectus is filed with, or
transmitted for filing to, the Commission pursuant to Rule 424
(such date, the "Rule 424 Date") and on any Settlement Date,
the Prospectus and the Mortgage will fully comply, in all
material respects with the applicable provisions of the
Securities Act and the Trust Indenture Act of 1939, as amended
(the "1939 Act"), respectively, and, in each case, the
applicable instructions, rules and regulations of the
Commission thereunder; at the Effective Date, the Registration
Statement did not contain, and on any Settlement Date, the
Registration Statement will not contain, an untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading; on each Rule 424 Date and on any
Settlement Date, the Prospectus will not include any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein,
in the light of the circumstances under which they were made,
not misleading; and the Incorporated Documents when filed with
the Commission, fully complied or will fully comply in all
material respects with the applicable provisions of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the applicable instructions, rules and regulations
of the Commission thereunder; provided, that the foregoing
representations and warranties in this subsection (b) shall
not apply to statements or omissions made in reliance upon and
in conformity with information furnished in writing to FPL by
or on behalf of any Agents for use in connection with the
preparation of the Registration Statement or the Prospectus,
or to any statements in or omissions from the Statements of
Eligibility and Qualification on Form T-1, or amendments
thereto, of the Trustee under the Mortgage.
(c) The financial statements included as part of or
incorporated by reference in the Prospectus present fairly the
financial condition and operations of FPL at the respective
dates or for the respective periods to which they apply; such
financial statements have been prepared in each case in
accordance with generally accepted accounting principles
consistently applied throughout the periods involved except as
otherwise indicated in the Registration Statement; and
Deloitte & Touche LLP, who have audited the audited financial
statements, are independent public accountants as required by
the Securities Act and the Exchange Act and the rules and
regulations of the Commission thereunder.
(d) Except as reflected in or contemplated by the
Registration Statement and the Prospectus, since the
respective most recent dates as of which information is given
in the Registration Statement and Prospectus, there has not
been any material adverse change in the business, properties
or financial condition of FPL nor has any material transaction
been entered into by FPL other than changes and transactions
contemplated by the Registration Statement and Prospectus, and
transactions in the ordinary course of business. FPL has no
material contingent obligation which is not disclosed in the
Registration Statement and Prospectus.
(e) The consummation of the transactions herein contemplated
and the fulfillment of the terms hereof on the part of FPL to
be fulfilled have been duly authorized by all necessary
corporate action of FPL in accordance with the provisions of
its Restated Articles of Incorporation, as amended (the
"Charter"), by-laws and applicable law, and the Securities
when issued and delivered as provided herein will constitute
legal, valid and binding obligations of FPL in accordance with
their terms, except as limited by bankruptcy, insolvency or
other laws affecting mortgagees' and other creditors' rights
generally and equitable limitations on the enforceability of
specific remedies.
(f) The consummation of the transactions herein contemplated
and the fulfillment of the terms hereof and the compliance by
FPL with all the terms and provisions of the Mortgage will not
result in a breach of any of the terms or provisions of, or
constitute a default under, FPL's Charter or by-laws or any
indenture, mortgage, deed of trust or other agreement or
instrument to which FPL is now a party, or violate any law or
any order, rule, decree or regulation applicable to FPL of any
Federal or state court, regulatory board or body or
administrative agency having jurisdiction over FPL or any of
its property, except where such breach, default or violation
would not have a material adverse effect on the business,
properties or financial condition of FPL.
(g) All the property to be subjected to the lien of the
Mortgage will be adequately described therein.
4. SETTLEMENT. Delivery of Securities in fully registered
----------
form shall be made in accordance with the Procedures. The date
of authentication and issuance of the Global Security (as defined
in the Procedures attached hereto) sold against delivery to FPL
of funds in payment therefor is herein called the "Settlement
Date." Delivery of, and payment for, Securities sold to the
Agents as principal shall be made in accordance with the Terms
Agreement (as defined in Section 12 hereof) relating to such
Securities.
5. OBLIGATIONS OF AGENTS.
---------------------
(a) In soliciting purchases of the Securities from FPL by
others (including customers of the Agents), each Agent will be
acting as sales agent for FPL and not as principal. Each
Agent will use its reasonable best efforts to solicit and
receive offers to purchase the Securities on behalf of FPL as
contemplated hereby; provided, that each Agent in its sole
discretion may suspend from time to time its efforts in
offering for sale, and soliciting purchases of, the
Securities. In any transaction where an Agent has acted as
agent for FPL and has not purchased as principal, the Agent
will make reasonable efforts to obtain performance by each
purchaser of Securities from FPL, but the Agent will not have
any liability to FPL in the event any such purchase is not
consummated for any reason. FPL also understands that under
no circumstances shall an Agent be obligated to purchase any
Securities for its own account except to the extent that such
Agent has acted as principal in purchasing Securities or has
made a firm commitment with FPL in connection with an offering
which has been expressly authorized by FPL and agreed to by
such Agent. Unless FPL and the Agents shall otherwise agree,
all purchases by an Agent as principal shall be made pursuant
to a Terms Agreement.
(b) Each Agent agrees that in carrying out the transactions
contemplated by this agreement, it will observe and comply
with all securities or blue sky laws, regulations, rules and
ordinances in any jurisdiction in which the Securities may be
offered, sold or delivered applicable to it as Agent
hereunder. Each Agent agrees not to cause any advertisement
of the Securities to be published in any newspaper or
periodical or posted in any public place and not to publicly
issue any circular relating to the Securities other than the
Prospectus, except in any case with the express consent of
FPL.
6. COVENANTS OF FPL. FPL agrees:
----------------
(a) To advise the Agents (i) when any amendment to the
Registration Statement, except any Incorporated Documents, has
become effective or any supplement to the Prospectus has been
filed, (ii) of any request by the Commission for any amendment
of the Registration Statement or the Prospectus or for any
additional information with respect to the Registration
Statement or the Prospectus, (iii) of the issuance by the
Commission of any "stop order" suspending the effectiveness of
the Registration Statement or the institution, or advice from
the Commission that it is considering the institution, of any
proceeding for that purpose, and (iv) of the receipt by FPL of
any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such
purpose. FPL will use its best efforts to prevent the
issuance of any such "stop order" and, if issued, to obtain as
soon as possible the withdrawal thereof. FPL will not file
any amendment to the Registration Statement or supplement to
the Prospectus unless FPL has furnished the Agents through
Winthrop, Stimson, Putnam & Roberts, who are acting as counsel
for the Agents ("Counsel for the Agents") copies for its
review prior to filing, except that FPL is not required to so
furnish the Agents with copies of any amendment to the
Registration Statement or supplement to the Prospectus if such
amendment or supplement is a Form 8-K filed solely for the
purpose of filing, pursuant to Item 601 of Regulation S-K,
exhibits unrelated to the transactions contemplated by this
Distribution Agreement;
(b) To furnish such proper information as may be lawfully
required and otherwise cooperate in qualifying the Securities
for offer and sale under the blue sky laws of such
jurisdictions as the Agents may designate and will pay filing
fees in connection with such qualification, in the aggregate
not exceeding $5,000, provided that FPL shall not be required
to qualify as a foreign corporation or dealer in securities,
or to file any consents to service of process under the laws
of any jurisdictions, or to meet other requirements deemed by
FPL to be unduly burdensome;
(c) To prepare and file, from time to time, such statements
and reports as are or may be required of it as the issuer of
the Securities to continue such qualifications under such
securities laws in effect for so long as this agreement
remains in effect;
(d) To furnish to the Agents and Counsel for the Agents one
signed copy of the Registration Statement, or if a signed copy
is not available, one conformed copy of the Registration
Statement certified by an officer of FPL to be in the form as
originally filed, including Incorporated Documents and all
exhibits except those incorporated by reference, including a
signed or conformed copy of each consent and certificate
included therein or filed as an exhibit thereto. FPL will
furnish the Agents as soon as practicable after the date of
this agreement as many copies of the Prospectus as the Agents
may reasonably request for the purposes contemplated by the
Securities Act;
(e) To deliver to the Agents without charge as soon as
practicable after the Registration Statement and each post-
effective amendment thereto becomes effective, and as soon as
practicable after each supplement to the Prospectus has been
filed, as many copies of the Prospectus as then amended or
supplemented as the Agents may reasonably request for the
purposes contemplated by the Securities Act;
(f) To file timely all reports, and amendments thereto,
required to be filed by FPL with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act subsequent to the
original effective date of the Registration Statement and for
so long as this agreement shall remain in effect and to
deliver to the Agents without charge promptly after the filing
thereof as many copies of each such report and amendment
(excluding exhibits) as the Agents may reasonably request;
(g) To deliver to the Agents, so long as this agreement shall
remain in effect, as promptly as possible copies of any
published reports of FPL to its security holders, including
any annual report and quarterly reports of FPL, and any other
financial reports made generally available to its security
holders;
(h) If an earnings statement is not included in a quarterly
report of FPL to its security holders, to make generally
available to its security holders once in each calendar
quarter, commencing with the quarter beginning after the date
of this agreement and ending with the first calendar quarter
after the quarter which ends twelve consecutive months after
the end of the calendar quarter in which the last sale of
Securities effected pursuant hereto occurs, an earnings
statement (which need not be audited) of FPL in reasonable
detail, covering a period of twelve consecutive months ending
at the close of the next preceding calendar quarter, which
earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act;
(i) So long as this agreement remains in effect and at any
time thereafter when delivery of a prospectus shall be
required by the Securities Act in connection with the sale of
any of the Securities or resale of any Securities purchased by
the Agents as principal hereunder, if any event relating to or
affecting FPL, or of which FPL shall be advised in writing by
the Agents shall occur, which, in FPL's opinion, should be set
forth in a supplement to or an amendment of the Prospectus in
order to make the Prospectus not misleading in the light of
the circumstances when it is delivered, FPL will forthwith (i)
notify the Agents promptly to suspend offers for sale and
solicitations of purchases of the Securities, and promptly
after the receipt of such notice the Agents will suspend
offers for sale and solicitations of purchases of the
Securities and cease using the Prospectus and (ii) at its
expense prepare and furnish to the Agents a reasonable number
of copies of a supplement or supplements or an amendment or
amendments to the Prospectus which will supplement or amend
the Prospectus so that as so supplemented or amended it will
not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the
statements contained therein, in the light of the
circumstances when the Prospectus is delivered, not misleading
(provided that should such event relate solely to the
activities of any of the Agents, then the Agents shall assume
the expense of preparing and furnishing copies of any such
amendment or supplement) and will advise the Agents when they
may resume solicitation of offers to purchase the Securities;
(j) To pay all expenses, fees and taxes (but not including
any transfer taxes) in connection with (i) the preparation and
filing and printing of copies of the Registration Statement
and amendments thereto and the Prospectus and amendments and
supplements thereto, including in each case all Incorporated
Documents, and this agreement, (ii) the issue and delivery of
the Securities, (iii) the qualification for offer and sale of
the Securities under state securities laws as aforesaid
(subject to the limit on such expenses and fees specified in
Section 6(b) hereof) and (iv) the preparation, execution and
delivery of the Supplemental Indenture. FPL also agrees to
pay or reimburse the Agents for the reasonable fees and
expenses of Counsel for the Agents for their continuing advice
and services in connection with the transactions contemplated
hereby including advice and services in connection with any
Subsequent Registration Statement and (unless otherwise
specified in a Terms Agreement) any purchase by the Agents or
any Agent pursuant to Section 12 hereof. Semi-annually the
Agents agree to notify FPL in writing in reasonable detail of
such fees and expenses of Counsel for the Agents; and
(k) Promptly after the execution of this agreement FPL will
reimburse the Agents for the reasonable fees and expenses of
Counsel for the Agents and other out-of-pocket expenses of the
Agents related to the Agents' services in connection with the
implementation of the program for the offer and sale of the
Securities as contemplated hereby not exceeding in the
aggregate $ (exclusive of fees and expenses referred
--------
to in Sections 6(b) and 6(j) hereof).
7. CONDITIONS OF AGENTS' OBLIGATIONS. The obligations of
---------------------------------
the Agents to act and continue to act as Agents hereunder, and
the obligation of the Agents to purchase Securities as principal
pursuant to any Terms Agreement, shall be subject to the accuracy
of, and compliance with, the representations and warranties of
FPL contained herein at the date of this agreement and any
Settlement Date (except for immaterial details), to the
performance by FPL of its obligations to be performed hereunder
(except for immaterial details) and to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect; no order of the
Commission directed to the adequacy of any Incorporated
Document shall have been issued; no proceedings for either
such purpose shall be pending before, or threatened by, the
Commission; at the date of this agreement the Agents shall
have received a certificate signed by FPL to the effect that,
to the best of its knowledge, no such order is in effect and
no proceedings for such purpose are pending before, or, to the
knowledge of FPL, threatened by, the Commission; and all
requests for additional information with respect to the
Registration Statement or the Prospectus on the part of the
Commission shall have been complied with by FPL to the
reasonable satisfaction of the Agent.
(b) At the date of this agreement, the Agents shall have
received from Steel Hector & Davis LLP, counsel to FPL, a
favorable opinion (with a copy thereof for each of the
Agents), which opinion will not pass upon compliance with
provisions of the blue sky laws of any jurisdiction, in form
and substance satisfactory to Counsel for the Agents, to the
effect that:
(i) FPL is validly organized and existing corporation
and is in good standing under the laws of the State of
Florida, and is doing business in that State, and has
valid franchises, licenses and permits adequate for the
conduct of its business;
(ii) FPL is a corporation duly authorized by its Charter
to conduct the business which it is now conducting as set
forth in the Prospectus; FPL is subject, as to retail
rates and services, issuance of securities, accounting
and certain other matters, to the jurisdiction of the
Florida Public Service Commission; and FPL is subject, as
to wholesale rates, accounting and certain other matters
to the jurisdiction of the Federal Energy Regulatory
Commission;
(iii) the Mortgage has been duly and validly authorized
by all necessary corporate action, has been duly and
validly executed and delivered, and is a valid and
binding instrument and is enforceable in accordance with
its terms, except as limited by bankruptcy, insolvency or
other laws affecting mortgagees' and other creditors'
rights generally and equitable limitations on the
enforceability of specific remedies;
(iv) the Securities will, when issued and paid for as
contemplated herein, be valid and binding obligations of
FPL and, assuming payment of intangible tax and document
excise tax in accordance with the Procedures, such
Securities will be enforceable in accordance with their
terms, except as limited by bankruptcy, insolvency or
other laws affecting mortgagees' and other creditors'
rights generally and equitable limitations on the
enforceability of specific remedies, and will be entitled
to the benefit of the security afforded by the Mortgage;
(v) the Registration Statement, at the Effective Date,
and the Prospectus at the Rule 424 Date (except as to the
financial statements and other financial or statistical
data contained or incorporated by reference therein and
except for those parts of the Registration Statement that
constitute a Statement of Eligibility and Qualification
on Form T-1, or amendments thereto, upon which such
opinion need not pass) complied as to form in all
material respects with the applicable requirements of the
Securities Act and the applicable instructions, rules and
regulations of the Commission thereunder and the
Incorporated Documents (except as to the financial
statements and other financial or statistical data
contained or incorporated by reference therein, upon
which such opinion need not pass), at the time they were
filed with the Commission, complied as to form in all
material respects with the applicable requirements of the
Exchange Act and the applicable instructions, rules and
regulations of the Commission thereunder. The
Registration Statement is, at the date of this agreement,
effective under the Securities Act, and to the best of
the knowledge of said counsel, no proceedings for a stop
order with respect thereto are pending or threatened
under Section 8 of the Securities Act;
(vi) the consummation of the transactions herein
contemplated and the fulfillment of the terms hereof and
the compliance by FPL with all the terms and provisions
of the Mortgage will not result in a breach of any of the
terms or provisions of, or constitute a default under,
the Charter or by-laws of FPL, or any indenture,
mortgage, deed of trust or other agreement or instrument
the terms of which are known to such counsel to which FPL
is now a party, except where such breach or default would
not have a material adverse effect on the business,
properties or financial condition of FPL;
(vii) nothing has come to the attention of said counsel
that would lead them to believe that the Registration
Statement (except as to the financial statements and
other financial or statistical data contained or
incorporated by reference therein and except for those
parts of the Registration Statement that constitute a
Statement of Eligibility and Qualification on Form T-1,
or amendments thereto, upon which such opinion need not
pass), at the Effective Date, contained any untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus, at the Rule 424 Date and at the date of such
opinion (except as aforesaid), included or includes any
untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the
statements contained therein, in the light of the
circumstances under which they were made, not misleading,
provided that such counsel may state that their belief is
based upon their participation in the preparation of the
Registration Statement and the Prospectus and any
supplements and amendments thereto and review and
discussion of the contents thereof, but is without
independent check or verification except as specified;
(viii) the Securities are being issued and sold pursuant
to the authority contained in an order of the Florida
Public Service Commission, which authority is adequate to
permit the issuance and sale of the Securities during the
calendar year. To the best of the knowledge of said
counsel, said authorization is still in full force and
effect, and no further approval, authorization, consent
or order of any public board or body (other than in
connection or in compliance with the provisions of the
blue sky laws of any jurisdiction) is legally required
for the authorization of the issuance and sale of the
Securities;
(ix) the Securities conform, as to legal matters, with
the statements concerning them made under the headings
"New Bonds" and "Certain Terms of the Offered Notes" in
the Prospectus;
(x) the Mortgage is duly qualified under the 1939 Act;
(xi) this agreement has been duly and validly authorized,
executed and delivered by FPL;
(xii) as to the Mortgaged and Pledged Property, as
defined in the Mortgage, FPL has satisfactory title to
any easements and personal properties, and good and
marketable or insurable title in fee simple to any other
real properties (except as FPL's interest is stated to be
otherwise), subject only to Excepted Encumbrances, as
defined in the Mortgage, to any lien, if any, existing or
placed thereon at the time of acquisition thereof by FPL,
to minor defects and encumbrances customarily found in
the case of properties of like size and character and
which, in the opinion of said counsel, would not impair
the use thereof by FPL (all of which title exceptions,
encumbrances, liens and defects are hereinafter referred
to as "Exceptions"), and to the lien of the Mortgage; the
Mortgage constitutes a valid, direct, and first mortgage
lien upon the Mortgaged and Pledged Property now owned by
FPL, subject, however, to the Exceptions and as set forth
in the last sentence of this paragraph; and the
description of properties in the Mortgage is adequate to
constitute the Mortgage a lien on Mortgaged and Pledged
Property hereafter acquired by FPL, subject, however, to
the Exceptions and except as limited by bankruptcy,
insolvency or other laws affecting mortgagees' and other
creditors' rights generally and equitable limitations on
the enforceability of specific remedies. Mortgaged and
Pledged Property acquired after the most recent recording
of a supplemental indenture may also be subject to
possible rights of others which may attach prior to
recordation of a supplemental indenture subsequent to the
acquisition of such property.
(xiii) except as stated or referred to in the Prospectus,
there are no material pending legal proceedings to which
FPL is a party or of which property of FPL is the subject
which if determined adversely would have a material
effect on FPL, and, to the best of the knowledge of said
counsel, no such proceeding is known to be contemplated
by governmental authorities; and
(xiv) the information contained in the Prospectus which
is stated therein to have been made in reliance upon the
authority of said counsel or is specifically attributed
to them, has been reviewed by them and is correct.
In said opinion such counsel may rely as to all matters
of New York law on an opinion of Reid & Priest LLP and as to
matters relating to Mortgaged and Pledged Property located in
the State of Georgia on (i) prior opinions provided to FPL on
matters of Georgia law and (ii) a current opinion from Georgia
counsel.
(c) At the date of this agreement, the Agents shall have
received from Reid & Priest LLP, counsel to FPL, a favorable
opinion (with a copy thereof for each of the Agents), which
opinion will not pass upon compliance with provisions of the
blue sky laws of any jurisdiction, in form and substance
satisfactory to Counsel for the Agents, to the same effect
with respect to matters enumerated in paragraphs (iii) through
(xi) of subsection (b) of this Section 7. In said opinion
such counsel may rely as to all matters of Florida law on the
opinion of Steel Hector & Davis LLP, and will not pass upon
the incorporation of FPL, titles to property, franchises or
the lien of the Mortgage.
(d) At the date of this agreement, the Agents shall have
received from Counsel for the Agents a favorable opinion (with
a copy thereof for each of the Agents) to the same effect with
respect to the matters enumerated in (iii) - (v) and (vii) -
(xi) of Subsection (b) of this Section 7. In said opinion
such counsel may rely as to all matters of Florida law on the
opinion of Steel Hector & Davis LLP, and will not pass upon
the incorporation of FPL, titles to property, franchises or
the lien of the Mortgage.
(e) At the date of this agreement, each of the Agents shall
have received from Deloitte & Touche LLP a letter to the
effect that (i) they are independent public accountants with
respect to FPL within the meaning of the Securities Act and
the Exchange Act and the applicable published rules and
regulations thereunder; (ii) in their opinion, the
consolidated financial statements audited by them and
incorporated by reference in the Prospectus comply as to form
in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and
the published rules and regulations thereunder; (iii) on the
basis of a reading of the unaudited condensed consolidated
financial statements of FPL incorporated by reference in the
Prospectus, the latest available interim unaudited
consolidated financial statements of FPL since the close of
FPL's most recent audited fiscal year, the minutes and
consents of the Board of Directors, the Finance Committee of
the Board of Directors, the Stock Issuance Committee of the
Board of Directors, and the Shareholder of FPL since the end
of the most recent audited fiscal year, and inquiries of
officials of FPL who have responsibility for financial and
accounting matters (it being understood that the foregoing
procedures do not constitute an audit made in accordance with
generally accepted auditing standards and they would not
necessarily reveal matters of significance with respect to the
comments made in such letter, and accordingly that Deloitte &
Touche LLP make no representation as to the sufficiency of
such procedures for the several Agents' purposes), nothing has
come to their attention which caused them to believe that (a)
the unaudited condensed consolidated financial statements of
FPL incorporated by reference in the Prospectus (1) do not
comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the Exchange
Act and the published rules and regulations thereunder and (2)
except as disclosed in the Prospectus, are not in conformity
with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited
consolidated financial statements of FPL incorporated by
reference in the Prospectus, (b) at the date of the latest
available interim balance sheet read by them and at a
specified date not more than five days prior to the date of
this agreement there was any change in the common stock,
additional paid-in capital, preferred stock or long-term debt
of FPL and its subsidiaries, or decrease in their net assets,
in each case as compared with amounts shown in the most recent
consolidated balance sheet incorporated by reference in the
Prospectus, except in all instances for changes or decreases
which the Prospectus discloses have occurred or may occur, or
as occasioned by the declaration, provision for, or payment of
dividends, or which are described in such letter, or (c) for
the period from the date of the most recent consolidated
balance sheet incorporated by reference in the Prospectus to
the latest available interim balance sheet read by them and
for the period from the date of the latest available interim
balance sheet read by them to a specified date not more than
five days prior to the date of this agreement, there were any
decreases, as compared with the corresponding period in the
preceding year, in total consolidated operating revenues or in
net income or net income available to FPL Group, Inc., except
in all instances for decreases which the Prospectus discloses
have occurred or may occur, or which are described in such
letter; and (iv) they have carried out certain procedures and
made certain findings, as specified in such letter, with
respect to certain amounts included in the Prospectus and
Exhibit 12 to the Registration Statement and such other items
as the Agents may reasonably request.
(f) Since the respective most recent dates as of which
information is given in the Registration Statement and
Prospectus, there shall have been no material adverse change
in the business, properties or financial condition of FPL,
except as reflected in or contemplated by the Registration
Statement and Prospectus, and since such dates there shall
have been no material transaction entered into by FPL other
than transactions disclosed by the Registration Statement and
the Prospectus, and transactions in the ordinary course of
business; and at the date of this agreement the Agents shall
have received a certificate to such effect, signed by FPL.
(g) The Agents shall have received any certificate required
by Section 8(b) hereof.
(h) On the first Settlement Date occurring in each calendar
year, Steel Hector & Davis LLP and Reid & Priest LLP shall
each provide to the Agents an opinion dated the Settlement
Date to the effect provided in Section 7(b)(viii).
(i) There shall be in full force and effect an authorization
of the Florida Public Service Commission with respect to the
issuance and sale of the Securities on the terms herein stated or
contemplated, and containing no provision unacceptable to the
Agents by reason of the fact that it is materially adverse to
FPL; and at the date of this agreement the Agents shall have
received a certificate to such effect, signed by FPL.
(j) All legal proceedings to be taken in connection with the
issuance and sale of the Securities shall have been
satisfactory in form and substance to Counsel for the Agents.
In case any of the conditions specified above in this
Section 7 shall not have been fulfilled, the Agents shall have no
further obligation to proceed with any offering, sale, or any
solicitation of purchase of the Securities or any purchase by the
Agents as principal of the Securities pursuant to any Terms
Agreement or otherwise.
8. FURTHER REPRESENTATIONS AND WARRANTIES BY FPL. FPL
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represents and warrants, and agrees with the Agents, that:
(a) Each authorization by FPL to the Agents to offer for
sale, or solicit purchases of, the Securities as provided in
the Procedures and each purchase of Securities by the Agent as
principal pursuant to any Terms Agreement shall be deemed to
be an affirmation that the representations and warranties of
FPL contained in this agreement are true and correct at the
time of such authorization or at the date of such Terms
Agreement, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the
time of delivery of and payment for Securities sold pursuant
to such authorization or Terms Agreement as provided in
Section 4 hereof or in such Terms Agreement, in each case as
though made at and as of each such time or date (except that
such representations and warranties shall be deemed to relate
to the Registration Statement and the Prospectus as amended
and supplemented to each such time or date);
(b) Delivery for Securities at each Settlement Date shall be
deemed to be a certification by FPL that (i) all intangible
and document excise taxes payable in accordance with
Settlement Procedure E of the Procedures have been duly paid
and (ii) any resolutions of the Board of Directors of FPL or
the Finance Committee of FPL's Board of Directors establishing
the Securities and authorizing their execution, authentication
and delivery pursuant to this agreement have not been amended
or superseded and remain in full force and effect; provided
that if such resolutions have been amended or superseded, at
each such Settlement Date occurring on or after such
resolutions shall be amended or superseded, FPL shall provide
the Agents with a certificate signed by FPL to the effect that
such resolutions have been so amended or superseded and
attaching to such certificate a copy of the resolutions as
amended or the superseding resolutions together with the
opinions of Steel Hector & Davis LLP and Reid & Priest LLP,
each dated the Settlement Date, to the effect provided in
Section 7(b)(iv).
(c) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented, or a document
shall be filed under the Exchange Act which is incorporated by
reference in the Registration Statement or Prospectus (except
(i) supplements or amendments relating solely to the sale of
the Securities, (ii) supplements or amendments relating solely
to a change in the interest rates or maturities of the
Securities or a change in the principal amount of Securities
remaining to be sold or similar changes and (iii) Forms 8-K
that are filed solely for the purpose of filing exhibits
pursuant to Item 601 of Regulation S-K) or FPL shall sell
Securities to the Agents pursuant to a Terms Agreement (if
required by the Agents with respect to a particular Terms
Agreement), FPL shall furnish or cause to be furnished
forthwith to the Agents a certificate in form and substance
satisfactory to the Agents in their reasonable judgment to the
effect that the statements contained in the certificate
referred to in Section 7(f) hereof which were last furnished
to the Agents are true and correct at the time of such
amendment or supplement or filing or sale, as the case may be,
as though made at and as of such time (except that such
statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to
such time) or, in lieu of such a certificate, a certificate,
in form and substance satisfactory to the Agents in their
reasonable judgment, of the same general tenor as the
certificate referred to in said Section 7(f) but modified to
relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such
certificate;
(d) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented, or a document
shall be filed under the Exchange Act which is incorporated by
reference in the Registration Statement or Prospectus (except
(i) supplements or amendments relating solely to the sale of
the Securities, (ii) supplements or amendments relating solely
to a change in the interest rates or maturities of the
Securities or a change in the principal amount of Securities
remaining to be sold or similar changes and (iii) Forms 8-K
that are filed solely for the purpose of filing exhibits
pursuant to Item 601 of Regulation S-K) or FPL shall sell
Securities to the Agents pursuant to a Terms Agreement (if
required by the Agents with respect to a particular Terms
Agreement), FPL shall furnish or cause to be furnished
forthwith to the Agents written opinions of Steel Hector &
Davis LLP and Reid & Priest LLP, counsel to FPL, dated the
date of delivery thereof and in form and substance
satisfactory to Counsel for the Agents, of the same tenor as
the opinions required by clauses (v), (vii) and (ix) of
Section 7(b) hereof but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to
the date of such opinions or, in lieu of such opinions, such
counsel may furnish to the Agents a letter to the effect that
the Agents may rely on such last opinions to the same extent
as though they were dated the date of such letter authorizing
reliance (except that statements in such last opinions shall
be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery
of such letters authorizing reliance);
(e) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented to set forth
financial information included in or derived from FPL's
financial statements, or any document containing financial
information so included or derived shall be filed under the
Exchange Act and incorporated by reference in the Prospectus
or FPL shall sell Securities to the Agents pursuant to a Terms
Agreement (if required by the Agents with respect to a
particular Terms Agreement), FPL shall cause Deloitte & Touche
LLP to furnish to the Agents a letter, dated five business
days after the date of filing such amendment or supplement or
document with the Commission, in form and substance
satisfactory to the Agents in their reasonable judgment, of
the same general tenor as the letter referred to in
Section 7(e) hereof but with appropriate modifications to
relate to the Registration Statement and the Prospectus as
amended and supplemented to the date of such letter and as may
be necessary to reflect changes in the financial information
included or incorporated by reference in the Registration
Statement and the Prospectus as then amended or supplemented
since the date of the last previous such letter furnished to
the Agents; provided, however, that no letter need be
furnished (except that if the Agents reasonably request, a
letter addressing solely the matters described in
Section 7(e)(iv) hereof shall be furnished) with respect to
year-end audited financial statements of FPL if copies of such
audited financial statements are delivered to the Agents; and
(f) Notwithstanding the foregoing, it is agreed that if, at
any time and from time to time during the term of this
agreement, FPL should deliver to the Agents notification of
its decision to suspend any sale of Securities hereunder, then
during the period of any such suspension or suspensions FPL
shall be relieved of its obligation to provide to the Agents
the certificate, opinions and letter required pursuant to
Sections 8(c), 8(d) and 8(e) hereof. However, whenever such a
suspension is lifted, FPL shall be required to deliver to the
Agents, prior to the resumption of any sale of Securities
hereunder, the most recent certificate, opinions and letter
which would have been required except for the suspension.
9. INDEMNIFICATION.
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(a) FPL agrees to indemnify and hold harmless each Agent and
each person who controls such Agent within the meaning of
Section 15 of the Securities Act against any and all losses,
claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities
Act or any other statute or common law, and to reimburse each
such Agent and each such controlling person for any legal or
other expenses (including, to the extent hereinafter provided,
reasonable counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or liabilities
or in connection with defending any actions, insofar as such
losses, claims, damages, liabilities, expenses or actions
arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any
preliminary prospectus (if used prior to the Effective Date of
the Registration Statement), including all Incorporated
Documents, or in the Registration Statement or the Prospectus,
or in the Registration Statement or Prospectus, as amended or
supplemented (if any amendments or supplements thereto shall
have been furnished), or the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading;
provided, however, that the indemnity agreement contained in
this paragraph shall not apply to any such losses, claims,
damages, liabilities, expenses or actions arising out of, or
based upon, any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, if such
statement or omission was made in reliance upon and in
conformity with information furnished herein or to FPL in
writing by or on behalf of any such Agent, for use in
connection with the preparation of the Registration Statement
or the Prospectus or any amendment or supplement to either
thereof, or arising out of, or based upon, statements in or
omissions from that part of the Registration Statement which
shall constitute a Statement of Eligibility and Qualification
on Form T-1 and provided, further, that the indemnity
agreement contained in this paragraph in respect of any
preliminary prospectus shall not inure to the benefit of such
Agent (or of any person controlling such Agent) on account of
any such losses, claims, damages, liabilities, expenses or
actions arising from the sale of the Securities to any person
if such Agent shall have failed to send or give to such person
(i) with or prior to the written confirmation of such sale, a
copy of the Prospectus or the Prospectus as amended or
supplemented, if any amendments or supplements thereto shall
have been furnished at or prior to the time of written
confirmation of the sale involved, but exclusive of any
Incorporated Documents unless, with respect to the delivery of
any amendment or supplement, the alleged omission or alleged
untrue statement is not corrected in such amendment or
supplement at the time of confirmation, or (ii) with or prior
to the delivery of such Securities to such person, a copy of
any amendment or supplement to the Prospectus which shall have
been furnished subsequent to such written confirmation and
prior to the delivery of such Securities to such person,
exclusive of any Incorporated Documents unless, with respect
to the delivery of any amendment or supplement, the alleged
omission or alleged untrue statement was not corrected in such
amendment or supplement at the time of such delivery. Each
Agent agrees promptly to notify FPL, and each other Agent, of
the commencement of any litigation or proceedings against it
or any such controlling person in connection with the issuance
and sale of the Securities.
(b) Each Agent agrees to indemnify and hold harmless FPL, its
officers and directors, and each person who controls any
thereof within the meaning of Section 15 of the Securities Act
against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become
subject under the Securities Act or any other statute or
common law, and to reimburse each of them for any legal or
other expenses (including, to the extent hereinafter provided,
reasonable counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or liabilities,
or in connection with defending any actions, insofar as such
losses, claims, damages, liabilities, expenses or actions
arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the
Registration Statement or Prospectus as amended or
supplemented (if any amendments or supplements thereto shall
have been furnished) or the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading if
such statement or omission was made in reliance upon and in
conformity with information furnished herein or to FPL in
writing by or on behalf of such Agent, for use in connection
with the preparation of the Registration Statement or the
Prospectus or any amendment or supplement to either thereof.
The indemnity agreement of each Agent contained in this
paragraph shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of FPL or
any of its officers or its directors or any such controlling
person, and shall survive the delivery of the Securities. FPL
agrees promptly to notify each Agent of the commencement of
any litigation or proceedings against FPL (or any controlling
person thereof) or any of its officers or directors in
connection with the issuance and sale of the Securities.
(c) FPL and each of the Agents agree that, upon the receipt
of notice of the commencement of any action against it, its
officers and directors, or any person controlling it as
aforesaid, in respect of which indemnity may be sought on
account of any indemnity agreement contained herein, it will
promptly give written notice of the commencement thereof to
the party or parties against whom indemnity shall be sought
thereunder, but the omission so to notify such indemnifying
party or parties of any such action shall not relieve such
indemnifying party or parties from any liability which it or
they may have to the indemnified party otherwise than on
account of such indemnity agreement. In case such notice of
any such action shall be so given, such indemnifying party
shall be entitled to participate at its own expense in the
defense or, if it so elects, to assume (in conjunction with
any other indemnifying parties) the defense of such action, in
which event such defense shall be conducted by counsel chosen
by such indemnifying party or parties and satisfactory to the
indemnified party or parties who shall be defendant or
defendants in such action, and such defendant or defendants
shall bear the fees and expenses of any additional counsel
retained by them; but if the indemnifying party shall elect
not to assume the defense of such action, such indemnifying
party will reimburse such indemnified party or parties for the
reasonable fees and expenses of any counsel retained by them;
provided, however, if the defendants in any such action
include both the indemnified party and indemnifying party and
counsel for the indemnifying party shall have reasonably
concluded that there may be a conflict of interest involved in
the representation by such counsel of both the indemnifying
party and the indemnified party, the indemnified party or
parties shall have the right to select separate counsel,
satisfactory to the indemnifying party, to participate in the
defense of such action on behalf of such indemnified party or
parties (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one
separate counsel representing the indemnified parties who are
parties to such action).
10. SURVIVAL. The indemnity agreements contained in
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Section 9 hereof and the representations, warranties and other
statements of FPL and the Agents set forth in this agreement or
any Terms Agreement or made by FPL and the Agents pursuant to
this agreement or any Terms Agreement shall remain in full force
and effect, regardless of (i) any termination of this agreement,
(ii) any investigation made by or on behalf of the Agents or any
of their controlling persons or by or on behalf of FPL or any of
its officers, directors or controlling persons and
(iii) acceptance of delivery of and payment for Securities sold
hereunder.
11. TERMINATION.
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(a) This agreement may be terminated at any time by any party
hereto upon the giving of written notice of such termination
to the other parties hereto effective at the close of business
on the date such notice is received. In the event of any such
termination, no party shall have any liability to any other
party hereto, except as provided in Section 1(e),
Section 5(b), Section 6(b), (i), (j) and (k) and Section 9
hereof and except that, if at the time of any such termination
the Agents shall have previously confirmed sales of Securities
for which delivery and payment has not yet been made, FPL
shall remain obligated in respect of such sales as provided in
Section 4 hereof and shall continue to have the obligations
provided in Section 8 hereof until delivery of and payment for
all Securities so sold have been completed.
(b) The Agents may terminate a Terms Agreement by delivering
written notice thereof to FPL, at any time prior to the
Settlement Date specified therein if (i) prior to such time
there shall have occurred any general suspension of trading in
securities on the New York Stock Exchange or there shall have
been established by The New York Stock Exchange, Inc. or by
the Commission or by any federal or state agency or by the
decision of any court any limitation on prices for such
trading or any restrictions on the distribution of securities,
or a general banking moratorium declared by New York or
federal authorities, or (ii) there shall have occurred any new
outbreak of hostilities including, but not limited to, an
escalation of hostilities which existed prior to the date of
such Terms Agreement or other national or international
calamity or crisis, the effect of any such event specified in
(i) or (ii) above on the financial markets of the United
States shall be such as to make it impracticable for the Agent
to enforce contracts for the sale of Securities. A Terms
Agreement may also be terminated at any time prior to the
Settlement Date specified therein if in the judgment of the
Agents the subject matter of any amendment or supplement to
the Registration Statement or the Prospectus prepared and
furnished by FPL reflects a material adverse change in the
business, properties or financial condition of FPL which
renders it either inadvisable to proceed with such offering,
if any, or inadvisable to proceed with the delivery of the
Securities to be purchased under such Terms Agreement. Any
termination of a Terms Agreement shall be without liability of
any party to any other party except as otherwise provided in
Section 6(i), the first sentence of Section 6(j), Section 9
and Section 10 hereof.
12. PURCHASES AS PRINCIPAL. Unless FPL and the Agents shall
----------------------
otherwise agree, each sale of Securities to the Agents as
principal for resale to others shall be made in accordance with
the terms of this agreement and any separate agreement specified
by FPL which will provide for the sale of such Securities to, and
the purchase and reoffering thereof by, the Agents. Each such
separate agreement, herein referred to as a "Terms Agreement,"
whether oral (it being understood that such oral agreement shall
be confirmed in writing prior to the Settlement Date) or in
writing shall be with respect to such information (as applicable)
as is specified in Exhibit C hereto. Any such writing may take
the form of an exchange of any standard form of written
telecommunication between the Agents and FPL. The Agents'
commitment to purchase Securities pursuant to any Terms Agreement
shall be deemed to have been made on the basis of the
representations and warranties of FPL herein contained and shall
be subject to the terms and conditions herein set forth. Such
Terms Agreement may also specify any requirements for the
opinions of counsel, accountants' letters and officers'
certificates pursuant to Section 8 hereof.
13. MISCELLANEOUS. The validity and interpretation of this
-------------
agreement shall be governed by the laws of the State of New York.
This agreement shall inure to the benefit of FPL, the Agents and,
with respect to the provisions of Section 9 hereof, each
controlling person referred to in said Section 9, and their
respective successors. Nothing in this agreement is intended or
shall be construed to give to any other person, firm or
corporation any legal or equitable right, remedy or claim under
or in respect of this agreement or any provision herein
contained. The term "successors" as used in this agreement shall
not include any purchaser, as such purchaser, of any Securities
from the Agents.
14. NOTICES. Except as otherwise specifically provided
-------
herein or in the Procedures, all communications hereunder shall
be in writing, or by telegram and, if to the Agents, shall be
mailed or delivered to:
or, if to FPL, shall be mailed or delivered to it at 700 Universe
Boulevard, Juno Beach, Florida 33408, Attention: Treasurer.
15. COUNTERPARTS. This agreement may be executed in any
number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be
deemed to be an original and all of which when taken together
shall constitute one and the same agreement.
<PAGE>
If the foregoing correctly sets forth our understanding,
please indicate your acceptance thereof in the space provided
below for that purpose, whereupon this letter and your acceptance
shall constitute a binding agreement between us.
Very truly yours,
FLORIDA POWER & LIGHT COMPANY
By
----------------------------
Accepted and delivered as of
the date first written above
----------------------------
----------------------------
----------------------------
<PAGE>
EXHIBIT A
FLORIDA POWER & LIGHT COMPANY
SECURED MEDIUM-TERM NOTES, SERIES
---
ADMINISTRATIVE PROCEDURES FOR FIXED AND VARIABLE RATE
SECURITIES ISSUED IN BOOK-ENTRY FORM
Secured Medium-Term Notes, Series , due from nine months to
---
thirty years from date of issue (the "Securities") are to be
offered on a continuing basis by Florida Power & Light Company
("FPL"). as agents (each an "Agent" and
--------------------
collectively, the "Agents"), have agreed to use their reasonable
best efforts to solicit offers to purchase the Securities. The
Securities are being sold pursuant to a Distribution Agreement
between FPL and the Agents dated (the "Distribution
------------
Agreement") to which these administrative procedures are attached
as an exhibit. The Securities will be issued under FPL's
Mortgage and Deed of Trust, dated as of January 1, 1944, to
Bankers Trust Company, as Trustee (the "Trustee"), and The
Florida National Bank of Jacksonville (now resigned), as
supplemented, pursuant to the Supplemental
--------------
Indenture dated as of (the "Mortgage"). The
--------------
Securities will either bear interest at a fixed rate (the "Fixed
Rate Securities") or at a variable rate (the "Variable Rate
Securities"). Bankers Trust Company will act as the paying agent
(the "Paying Agent") for the payment of principal of and premium,
if any, and interest on the Securities and will perform, as the
Paying Agent, unless otherwise specified, the other duties
specified herein. Terms defined in the Distribution Agreement
shall have the same meaning when used in this exhibit.
Each Security will be represented by a Global Security (as
defined below) delivered to Bankers Trust Company, as agent for
The Depository Trust Company ("DTC") and recorded in the book-
entry system maintained by DTC. An owner of a Security
represented by a Global Security will not be entitled to receive
a certificate representing such a Security.
Administrative procedures and specific terms of the offering
are explained below. Administrative responsibilities and record-
keeping functions will be performed by FPL's Treasurer or its
Assistant Treasurer.
In connection with the qualification of the Securities for
eligibility in the book-entry system maintained by DTC, Bankers
Trust Company will perform the custodial, document control and
administrative functions described below, in accordance with its
respective obligations under a Letter of Representations from FPL
and Bankers Trust Company to DTC dated as of June 19, 1992, and a
Medium-Term Note Certificate Agreement between Bankers Trust
Company and DTC dated as of October 21, 1988, and its obligations
as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS").
PRICE TO PUBLIC
---------------
Each Security will be issued at 100% of principal amount,
unless otherwise determined by FPL and specified in a supplement
to the Prospectus ("Pricing Supplement").
ISSUANCE
--------
On any date of Settlement (as defined under "Settlement"
below) for all Fixed Rate Securities, FPL will issue one or more
global securities in fully registered form without coupons (a
"Global Security") representing up to $
-------------------
principal amount of all such Fixed Rate Securities that have the
same Issue Price, Issue Date, Maturity Date, Interest Rate,
Interest Payment Dates and terms for redemption, if any (in each
case, and for all purposes of these administrative procedures, as
defined in the Prospectus (as defined in Section 3(a) of the
Distribution Agreement)) (collectively the "Fixed Rate Terms").
On any date of Settlement for all Variable Rate Securities, FPL
will issue one or more Global Securities representing up to
$______________ principal amount of all such Variable Rate
--------------
Securities that have the same Issue Price, Issue Date, Maturity
Date, base rate upon which interest may be determined (a "Base
Rate"), which may be the Commercial Paper Rate, the Treasury
Rate, LIBOR, the Cost of Funds Rate, the CD Rate, the Federal
Funds Rate, the Prime Rate or any other rate set forth by FPL,
Initial Interest Rate, Index Maturity, Spread or Alternate Rate
Event Spread, if any, minimum interest rate, if any, maximum
interest rate, if any, Interest Payment Dates and terms for
redemption, if any (collectively, the "Variable Rate Terms").
Each Global Security will be dated and issued as of the date of
its authentication by the Trustee. No Global Security will
represent any securities in certificated form.
MATURITIES
----------
Each Security will mature on a date mutually agreed upon by
the purchaser and FPL, such date being at least nine months but
not more than thirty years from the date of issuance.
DENOMINATIONS
-------------
The Securities will be initially issued in denominations of
$100,000 and any larger denomination which is an integral
multiple of $1,000. Global Securities will be denominated in
principal amounts not in excess of $150,000,000. If one or more
Securities having an aggregate principal amount in excess of
$150,000,000 would, but for the preceding sentence, be
represented by a single Global Security, then one Global Security
will be issued to represent each $150,000,000 principal amount of
such Security or Securities and an additional Global Security
will be issued to represent any remaining principal amount of
such Security or Securities. In such a case, each of the Global
Securities representing such Security or Securities shall be
assigned the same CUSIP number.
IDENTIFICATION NUMBERS
----------------------
FPL has arranged with the CUSIP Service Bureau of Standard &
Poor's Corporation (the "CUSIP Service Bureau") for the
reservation of one series of CUSIP numbers (including tranche
numbers), which series consists of approximately 900 CUSIP
numbers and relates to Global Securities representing the
Securities. FPL has obtained from the CUSIP Service Bureau a
written list of such series of reserved CUSIP numbers and has
delivered to Bankers Trust Company and to DTC's Underwriting
Department a written list of such 900 CUSIP numbers. Bankers
Trust Company will assign CUSIP numbers to Global Securities as
described below under Settlement Procedure "B". DTC will notify
the CUSIP Service Bureau periodically of the CUSIP numbers that
Bankers Trust Company has assigned to Global Securities. At any
time when fewer than 100 of the reserved CUSIP numbers of the
series remain unassigned to Global Securities, and if it deems
necessary, Bankers Trust Company or FPL will reserve additional
CUSIP numbers for assignment to Global Securities representing
the Securities. Upon obtaining such additional CUSIP numbers,
Bankers Trust Company or FPL shall deliver a list of such
additional CUSIP numbers to DTC's Underwriting Department.
REGISTRATION
------------
Each Global Security will be registered in the name of Cede &
Co., as nominee for DTC, on the bond register maintained under
the Mortgage. The beneficial owner of a Security (or one or more
indirect participants in DTC designated by such owner) will
designate one or more participants in DTC (with respect to such
Security, the "Participants") to act as agent or agents for such
owner in connection with the book-entry system maintained by DTC,
and DTC will record in book-entry form, in accordance with
instructions provided by such Participants, a credit balance with
respect to such beneficial owner in such Security in the account
of such Participants. The ownership interest of such beneficial
owner in such Security will be recorded through the records of
such Participants or through the separate records of such
Participants and one or more indirect participants in DTC.
TRANSFERS
---------
Transfers of a Security will be accomplished by book entries
made by DTC and, in turn, by Participants (and in certain cases,
one or more indirect participants in DTC) acting on behalf of
beneficial transferees and transferors of such Security.
CONSOLIDATIONS
--------------
After the first Interest Payment Date on individual issues of
the Securities, Bankers Trust Company will deliver to DTC's
Reorganization Department, Interactive Data Corporation and the
CUSIP Service Bureau [at least 30 days before the day on which
the consolidation is to be effective, as determined by Bankers
Trust Company (the "Exchange Date"),] a written notice of
consolidation specifying (i) the CUSIP numbers of two or more
outstanding Global Securities that represent Securities having
different original Issue Dates but otherwise the same Fixed Rate
Terms or Variable Rate Terms, as the case may be, and for which
interest has been paid to the same date, (ii) a date, occurring
at least thirty days after such written notice is delivered and
at least thirty days before the next Interest Payment Date for
such Securities, on which such Global Securities shall be
exchanged for a single replacement Global Security, (iii) a new
CUSIP number to be assigned to such replacement Global Security
and (iv) that the CUSIP numbers of the Global Securities to be
exchanged will no longer be valid. Upon receipt of such a
notice, DTC will send to its Participants (including Bankers
Trust Company) a written reorganization notice to the effect that
such exchange will occur on such date. On the specified Exchange
Date, Bankers Trust Company will exchange such Global Securities
for a single Global Security bearing the new CUSIP number, the
original Issue Dates, together with the respective principal
amounts to which they relate, for all exchanged Global Securities
and the CUSIP numbers of the exchanged Global Securities will, in
accordance with CUSIP Service Bureau procedures, be canceled and
not immediately reassigned. Notwithstanding the foregoing, if
the Global Securities to be exchanged exceed $150,000,000 in
aggregate principal amount, one Global Security will be
authenticated and issued to represent each $150,000,000 of
principal amount of the exchanged Global Security and an
additional Global Security will be authenticated and issued to
represent any remaining principal amount of such Global
Securities (see "Denominations" above).
INTEREST
--------
Interest on each Security will accrue from and including the
original Issue Date of, or the last date to which interest has
been paid on, the Global Security representing such Security.
Each payment of interest on a Security will include interest
accrued through the day preceding, as the case may be, the
Interest Payment Date (provided, however, that in the case of
Variable Rate Securities which reset daily or weekly, interest
payments will include interest accrued to but excluding the
Record Date (as defined below) immediately preceding the Interest
Payment Date), date of redemption or Maturity Date. Interest
payable on the Maturity Date or date of redemption of a Security
will be payable to the person to whom the principal of such
Security is payable. DTC will arrange for each pending deposit
message described under Settlement Procedure "C" below to be
transmitted to Standard & Poor's Corporation, which will use the
information in the message to include certain terms of the
related Global Security in the appropriate bond report published
by Standard & Poor's Corporation.
The Record Date with respect to any Interest Payment Date for
a Fixed Rate Security shall be the fifteenth business day
preceding such Interest Payment Date. The Record Date with
respect to any Interest Payment Date for a Variable Rate Security
shall be the date 15 calendar days (whether or not a business
day) preceding such Interest Payment Date.
Interest payments will be made on each Interest Payment Date
commencing with the first Interest Payment Date following the
original Issue Date; provided, however, that the first payment of
interest on any Global Security originally issued between a
Record Date and an Interest Payment Date will occur on the
Interest Payment Date following the next Record Date.
If an Interest Payment Date with respect to any Variable Rate
Security would otherwise fall on a day that is not a business day
with respect to such Security, such Interest Payment Date will be
the following day that is a business day with respect to such
Security (and no interest shall accrue on such payment for the
period from and after such Interest Payment Date), except that in
the case of a LIBOR Security, if such day falls in the next
calendar month, such Interest Payment Date will be the preceding
day that is a business day in London.
CALCULATION OF INTEREST
-----------------------
In the case of Fixed Rate Securities, interest (including
payments for partial periods) will be calculated on the basis of
a 360-day year of twelve 30-day months. Interest does not accrue
on the 31st day of any month. Interest rates on Variable Rate
Securities will be determined as set forth in the related Global
Security. Interest will be calculated in the case of (a)
Commercial Paper Rate, Prime Rate, LIBOR, Federal Funds Rate,
Cost of Funds Rate, and CD Rate Securities on the basis of the
actual number of days in the interest period divided by 360; and
(b) Treasury Rate Securities, on the basis of the actual number
of days in the interest period divided by the actual number of
days in the year.
INTEREST PAYMENTS
-----------------
Interest on Fixed Rate Securities will be payable semiannually
on January 1 and July 1 and at maturity. Interest will be
payable, in the case of the Variable Rate Securities which reset
(a) daily, weekly or monthly (other than Cost of Funds Rate
Securities), on the third Wednesday of each month or on the third
Wednesday of March, June, September and December of each year, as
specified pursuant to Settlement Procedure "A" below, or, in the
case of the Cost of Funds Rate Securities, all of which reset
monthly, on the first business day of each month or the first
business day of each March, June, September and December, as
specified pursuant to Settlement Procedure "A" below; (b)
quarterly, on the third Wednesday of March, June, September and
December of each year; (c) semiannually, on the third Wednesday
of each of the two months of each year specified pursuant to
Settlement Procedure "A" below; and (d) annually, on the third
Wednesday of the month specified pursuant to Settlement
Procedure "A" below and, in each case, at maturity.
With regard to Variable Rate Securities on which the interest
rate is reset daily or weekly, Bankers Trust Company shall
deliver to DTC's Dividend Department, Standard & Poor's
Corporation and Interactive Data Corporation on each day on which
the amount of interest to be paid on the following Interest
Payment Date (including the issue's first Interest Payment Date)
is determined a listing of the CUSIP number assigned to each such
issue along with corresponding specifications of the Record Date,
Interest Payment Date, and dollar amount of interest per $1,000
principal amount of the Securities to be paid on such Interest
Payment Date. For Variable Rate Securities on which the interest
rate is reset monthly, quarterly, semiannually, or annually,
Bankers Trust Company shall deliver a similar listing to Standard
& Poor's Corporation and Interactive Data Corporation on the day
interest payment amounts are determined.
Promptly after each Record Date for each issue of Fixed Rate
Securities, Bankers Trust Company will furnish FPL and DTC's
Dividend Department a written notice specifying by CUSIP number
the amount of interest to be paid on each Global Security on the
following Interest Payment Date (other than an Interest Payment
Date coinciding with the Maturity Date) and the total of such
amounts. DTC will confirm the amount payable on each Global
Security on such Interest Payment Date by reference to the
appropriate bond reports published by Standard & Poor's
Corporation. FPL will pay to Bankers Trust Company the total
amount of interest due on such Interest Payment Date (other than
on the Maturity Date), and Bankers Trust Company will pay such
amount to DTC at the times and in the manner set forth under
"Manner of Payment" below. The Participant, indirect participant
in DTC or other person responsible for forwarding payments and
materials directly to the beneficial owner of such Security, will
assume responsibility for withholding taxes on interest paid as
required by law.
Bankers Trust Company will take all action necessary so that
the Interest Payment Dates and the Record Dates with respect
thereto, for each Global Security, together with the amount of
interest payable on each of such Interest Payment Dates, shall be
listed in the appropriate daily bond report published by Standard
& Poor's Corporation.
MATURITY
--------
On or about the first business day of each month, Bankers
Trust Company will deliver to FPL and DTC a written list of
principal, interest and premium, if any, to be paid on each
Global Security maturing either on the Maturity Date or the date
of redemption in the following month. FPL and DTC will confirm
with Bankers Trust Company the amounts of such principal,
interest and premium, if any, payments with respect to each such
Global Security on or about the fifth business day preceding the
Maturity Date or the date of redemption, as the case may be, of
such Global Security. FPL will pay to Bankers Trust Company the
principal amount of such Global Security, together with interest
and premium, if any, due on such Maturity Date or date of
redemption. Bankers Trust Company will pay such amounts to DTC
at the times and in the manner set forth below under "Manner of
Payment". Promptly after payment to DTC of the principal,
interest and premium, if any, due at the Maturity Date or the
date of redemption of such Global Security, Bankers Trust Company
will cancel such Global Security in accordance with the terms of
the Mortgage. On the first business day of each month, Bankers
Trust Company will deliver to FPL a written statement indicating
the total principal amount of outstanding Global Securities as of
the immediately preceding business day.
MANNER OF PAYMENT
-----------------
The total amount of any principal, interest and premium, if
any, due on Global Securities on any Interest Payment Date or on
the Maturity Date or the date of redemption shall be paid by FPL
to Bankers Trust Company in immediately available funds for use
by Bankers Trust Company on such date. FPL will make such
payment on such Global Securities by wire transfer to Bankers
Trust Company or by Bankers Trust Company's debiting the account
of FPL maintained with Bankers Trust Company. FPL will confirm
such instructions in writing to Bankers Trust Company. Prior to
10:00 a.m. (New York City time) on each Maturity Date or date of
redemption or as soon as possible thereafter, Bankers Trust
Company will pay by separate wire transfer (using Fedwire message
entry instructions in a form previously agreed to with DTC) to an
account at the Federal Reserve Bank of New York previously agreed
to with DTC, in funds available for immediate use by DTC, each
payment of principal (together with interest thereon) due on
Global Securities on any Maturity Date or date of redemption. On
each Interest Payment Date, interest payments shall be made to
DTC in same day funds in accordance with existing arrangements
between Bankers Trust Company and DTC. Thereafter, on each such
date, DTC will pay, in accordance with its SDFS operating
procedures then in effect, such amounts in funds available for
immediate use to the respective Participants in whose names the
Securities represented by such Global Securities are recorded in
the book-entry system maintained by DTC. Neither FPL nor Bankers
Trust Company shall have any direct responsibility or liability
for the payment by DTC to such Participants of the principal of,
interest on and premium, if any, on the Securities.
PROCEDURE FOR POSTING
---------------------
FPL and the Agents will discuss from time to time the rates of
interest per annum to be borne by, the maturity, and other terms
of, Securities that may be sold as a result of the solicitation
of offers to purchase by the Agents.
ACCEPTANCE AND REJECTION OF OFFERS; AUTHORIZED PERSONS
------------------------------------------------------
Oral instructions regarding sales of Securities will be given
for FPL by [Dilek L. Samil, Scott Craig], or such other persons
as may be designated from time to time. Oral instructions to
will be accepted by , or such other
------------ ----------------
persons as may be designated from time to time. Oral
instructions to will be accepted by
----------
, or such other persons as may be designated
-------------------
from time to time. Oral instructions to will be
---------------
accepted by , or such other persons as may be
-------------------
designated from time to time. Oral instructions to
will be accepted by , or
------------------ ------------------
such other persons as may be designated from time to time.
FPL shall have the sole right to accept offers to purchase
Securities from FPL and may reject any such offer in whole or in
part. Each Agent shall promptly communicate to FPL, orally or in
writing, each reasonable offer to purchase Securities from FPL
received by it other than those rejected by such Agent. Each
Agent shall have the right, in its discretion reasonably
exercised without advising FPL, to reject any offers in whole or
in part.
SETTLEMENT
----------
The receipt of immediately available funds by FPL in payment
for a Security (less the applicable commission) and the
authentication and issuance of the Global Security representing
such Security shall, with respect to such Security, constitute
"Settlement". All offers accepted by FPL will be settled three
business days from the date of acceptance by FPL pursuant to the
timetable for Settlement set forth below unless FPL and the
purchaser agree to Settlement on another day that shall be no
earlier than the next business day.
SETTLEMENT PROCEDURES
---------------------
In the event of a purchase of Securities by an Agent, as
principal, appropriate settlement details will be set forth in a
Terms Agreement to be entered into between such Agent and FPL.
Settlement procedures with regard to each Security sold
through each Agent shall be as follows:
A. Such Agent will advise FPL by telephone (confirmed in
writing, which may include telex or facsimile) or by telex or
facsimile, of the following sale information:
1. Exact name of the purchaser.
2. Principal amount of the Security.
3. Issue price of the Security.
4. Issue date of the Security.
5. Settlement date.
6. Maturity date.
7. Interest rate.
(a) Fixed Rate Securities:
i) interest rate
(b) Variable Rate Securities:
i) base rate
ii) initial interest rate
iii) spread or alternate rate event spread, if
any
iv) interest reset dates
v) interest reset period
vi) interest payment dates
vii) interest payment period
viii) interest determination dates
ix) index maturity
x) maximum and minimum interest rates, if any
xi) calculation date
8. Redemption dates, if any, including any initial
redemption date, par date and limitation date.
9. Redemption premium, if any, including any initial
percentage and reduction percentage.
10. Agent's commission (to be paid in the form of a
discount from the proceeds remitted to FPL upon Settlement) and
its certification that the purchasers of the Security have been
solicited solely by such Agent.
11. Net proceeds to FPL.
B. Bankers Trust Company will assign a CUSIP number to the
Global Security representing such Security and FPL will advise
Bankers Trust Company by telephone or by telex or facsimile of
the information set forth in Settlement Procedure "A" above to be
confirmed in a written request for the authentication and
delivery of such Global Security, such CUSIP number and the name
of such Agent. Bankers Trust Company will also notify the Agent
of such CUSIP number by telephone as soon as practicable. Each
such communication by FPL shall constitute a representation and
warranty by FPL to Bankers Trust Company and each Agent that (i)
such Security is then, and at the time of issuance and sale
thereof will be, duly authorized for issuance and sale by FPL,
(ii) the Global Security representing such Security will conform
with the terms of the Mortgage pursuant to which such Security
and Global Security are issued and (iii) upon authentication and
delivery of such Global Security, the aggregate principal amount
of all Securities initially offered and issued under the Mortgage
will not exceed $ (except for Global Securities
------------------
or Securities represented by and authenticated and delivered in
exchange for or in lieu of Securities in accordance with the
Mortgage).
C. Bankers Trust Company will enter a pending deposit
message through DTC's Participant Terminal System, providing the
following settlement information to DTC, and such information
will be routed to Standard & Poor's Corporation through DTC:
1. The information set forth in Settlement
Procedure "A".
2. Identification as a Fixed Rate Security or a
Variable Rate Security.
3. Initial Interest Payment Date for such Security,
number of days by which such date succeeds the related Record
Date (or, in the case of Variable Rate Securities which reset
daily or weekly, the date five calendar days preceding the
Interest Payment Date) and amount of interest payable on such
Interest Payment Date.
4. CUSIP number of the Global Security representing
such Security.
5. Whether such Global Security will represent any
other Security (to the extent known at such time).
6. Interest payment period.
D. Bankers Trust Company will complete and authenticate the
Global Security representing such Security.
E. FPL will cause the appropriate amount of intangible tax
and document excise tax to be paid in accordance with applicable
Florida law and Georgia law.
F. Steel Hector & Davis LLP will (by telecopy followed by an
original copy) provide Bankers Trust Company with an opinion
regarding authentication.
G. DTC will credit such Security to Bankers Trust Company's
participant account at DTC.
H. Bankers Trust Company will enter an SDFS deliver order
through DTC's Participant Terminal System instructing DTC to (i)
debit such Security to Bankers Trust Company's participant
account and credit such Security to such Agent's participant
account and (ii) debit such Agent's settlement account and credit
Bankers Trust Company's settlement account for an amount equal to
the price of such Security less such Agent's commission. The
entry of such a deliver order shall constitute a representation
and warranty by Bankers Trust Company to DTC that (a) the Global
Security representing such Security has been issued and
authenticated and (b) Bankers Trust Company is holding such
Global Security pursuant to the Secured Medium-Term Note
Certificate Agreement between Bankers Trust Company and DTC.
I. Such Agent will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC (i) to debit such
Security to such Agent's participant account and credit such
Security to the participant accounts of the Participants with
respect to such Security and (ii) to debit the settlement
accounts of such Participants and credit the settlement account
of such Agent for an amount equal to the price of such Security.
J. Bankers Trust Company will transfer to the account of FPL
maintained at Bankers Trust Company of New York, New York, in
immediately available funds in the amount transferred to Bankers
Trust Company in accordance with Settlement Procedure "H" upon
receipt of such funds.
K. Such Agent will confirm the purchase of such Security to
the purchaser either by transmitting to the Participants with
respect to such Security a confirmation order or orders through
DTC's institutional delivery system or by mailing a written
confirmation to such purchaser. Such Agent will deliver to the
purchaser a copy of the most recent Prospectus applicable to the
Security with or prior to any written offer of Securities and the
confirmation and payment by the purchaser for the Security.
L. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "H" and "I" will be settled in
accordance with SDFS operating procedures in effect on the
Settlement Date.
M. Bankers Trust Company will send a copy of the Global
Security by first-class mail to FPL together with a statement
setting forth the principal amount of Securities outstanding as
of the related Settlement Date after giving effect to such
transaction and all other offers to purchase Securities of which
FPL has advised Bankers Trust Company but which have not yet been
settled.
SETTLEMENT PROCEDURES TIMETABLE
-------------------------------
For offers accepted by FPL, Settlement procedures "A" through
"L" set forth above shall be completed to the extent possible at
or before the respective times set forth below:
----------------------------------------------------------------
Settlement Procedure Time (New York)
----------------------------------------------------------------
A (1-11) 11 a.m. on the sale date
----------------------------------------------------------------
B 12 Noon on the sale date
----------------------------------------------------------------
C 2 p.m. on the sale date
----------------------------------------------------------------
D-F 9 a.m. on the Settlement Date
----------------------------------------------------------------
G 10 a.m. on the Settlement Date
----------------------------------------------------------------
H-I 2 p.m. on the Settlement Date
----------------------------------------------------------------
J-K 4:45 p.m. on the Settlement Date
----------------------------------------------------------------
L 3:30 p.m. on the Settlement Date
----------------------------------------------------------------
If a sale is to be settled more than one business day after
the sale date, Settlement Procedures "A", "B" and "C" shall be
completed as soon as practicable but no later than 11 a.m.,
12 Noon and 2:00 p.m., as the case may be, on the first business
day after the sale date. In connection with a sale which is to
be settled more than one business day after the sale date, if the
initial interest rate for a Variable Rate Note is not known at
the time that Settlement Procedure "A" is completed, Settlement
Procedures "B" and "C" shall be completed as soon as such rates
have been determined, but no later than 12 Noon and 2:00 p.m., as
the case may be, on the second business day before the Settlement
Date. Settlement Procedures "L" and "J" are subject to extension
in accordance with any extension of Fedwire closing deadlines and
in other events specified in the SDFS operating procedures in
effect on the Settlement Date.
If Settlement of a Security is rescheduled or canceled, FPL
will instruct Bankers Trust Company to deliver to DTC a
cancellation message to such effect by no later than 12 Noon on
the business day immediately preceding the scheduled Settlement
Date and Bankers Trust Company will enter such order by 2:00 p.m.
through DTC's Participation Terminal System.
PRICING SUPPLEMENT
------------------
If FPL accepts an offer to purchase a Security, FPL will
prepare a Pricing Supplement reflecting the terms of such
Security and will arrange to have ten copies of the Pricing
Supplement filed with the Commission not later than the close of
business on the second Business Day following such acceptance of
an offer to purchase such Security and will supply at least ten
copies of the Pricing Supplement to the Agent. The Agent will
cause the Prospectus and Pricing Supplement to be delivered to
the purchaser of the Security in accordance with the procedures
set forth in "Delivery of Prospectus" below.
FAILURE TO SETTLE
-----------------
If Bankers Trust Company or the Agent fails to enter an SDFS
deliver order with respect to a Security pursuant to Settlement
Procedure "H" or "I", Bankers Trust Company may deliver to DTC,
through DTC's Participant Terminal System, as soon as
practicable, a withdrawal message instructing DTC to debit such
Security to Bankers Trust Company's participant account, provided
that Bankers Trust Company's participant account contains a
principal amount of the Global Security representing such
Security that is at least equal to the principal amount to be
debited. If a withdrawal message is processed with respect to
all the Securities represented by a Global Security, Bankers
Trust Company will mark such Global Security "canceled", make
appropriate entries in Bankers Trust Company's records and send
such canceled Global Security to FPL. The CUSIP number assigned
to such Global Security shall, in accordance with CUSIP Service
Bureau procedures, be canceled and not immediately reassigned.
If a withdrawal message is processed with respect to one or more,
but not all, of the Securities represented by a Global Security,
Bankers Trust Company will exchange such Global Security for
another Global Security, which shall represent the Securities
previously represented by the surrendered Global Security with
respect to which a withdrawal message has not been processed and
shall bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Security is not timely paid to
the Participants with respect to such Security by the beneficial
purchaser thereof (or a person, including an indirect participant
in DTC, acting on behalf of such purchaser), such Participants
and, in turn, the Agent for such Security may enter SDFS deliver
orders through DTC's Participant Terminal System reversing the
orders entered pursuant to Settlement Procedures "I" and "H",
respectively. The Agent will notify Dilek L. Samil or Scott
Craig of FPL by telephone, confirmed in writing, of such failure.
Thereafter, Bankers Trust Company will deliver the withdrawal
message and take the related actions described in the preceding
paragraph.
Notwithstanding the foregoing, upon any failure to settle with
respect to a Security, DTC may take any actions in accordance
with its SDFS operating procedures then in effect. In the event
of a failure to settle with respect to one or more, but not all,
of the Securities to have been represented by a Global Security,
the Trustee will provide, in accordance with Settlement Procedure
"D", for the authentication and issuance of a Global Security
representing the other Securities to have been represented by
such Global Security and will make appropriate entries in its
records.
PROCEDURE FOR RATE CHANGES
--------------------------
When a decision has been reached to change interest rates on
or other variable terms with respect to any Securities being sold
by FPL, FPL will promptly advise the Agents and the Agents will
forthwith suspend solicitation of offers to purchase such
Securities. The Agents will telephone FPL with recommendations
as to the changed interest rates or other variable terms. At
such time as FPL has advised each of the Agents of the new
interest rates on or other variable terms with respect to the
Securities, the Agents may resume solicitation of offers to
purchase such Securities. Until such time only "indications of
interest" may be recorded.
SUSPENSION OF SOLICITATION; AMENDMENT OR SUPPLEMENT
---------------------------------------------------
If, during any period in which, in the opinion of Counsel for
the Agents, a prospectus relating to the Securities is required
to be delivered under the Securities Act, any event occurs as a
result of which the Prospectus would include an untrue statement
of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary
at any time to amend the Prospectus to comply with the Securities
Act, FPL will notify the Agents promptly to suspend solicitation
of purchases of the Securities and each Agent shall suspend its
solicitations of purchases of Securities; and if FPL shall decide
to amend or supplement the Registration Statement or the
Prospectus, it will promptly advise the Agents by telephone (with
confirmation in writing) and will promptly prepare and file with
the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance. Upon the Agents' receipt of such amendment or
supplement and advice from FPL that solicitations may be resumed,
the Agents will resume solicitations of purchases of the
Securities.
In addition, FPL may instruct the Agents to suspend
solicitation of offers to purchase at any time. Upon receipt of
such instructions the Agents will forthwith suspend solicitation
of offers to purchase from FPL until such time as FPL has advised
them that solicitation of offers to purchase may be resumed. If
FPL decides to amend or supplement the Registration Statement or
the Prospectus relating to the Securities (other than to change
interest rates, maturity dates and/or redemption terms), it will
promptly advise the Agents and Bankers Trust Company and will
furnish the Agents and Bankers Trust Company copies of the
proposed amendment or supplement.
In the event that at the time the Agents, at the direction of
FPL, suspend solicitation of offers to purchase from FPL there
shall be any orders outstanding which have been accepted but
which have not been settled, FPL will promptly advise the Agents
and Bankers Trust Company whether such orders may be settled and
whether copies of the Prospectus as theretofore amended and/or
supplemented as in effect at the time of the suspension may be
delivered in connection with the settlement of such orders. FPL
will have the sole responsibility for such decision and for any
arrangement which may be made in the event that FPL determines
that such orders may not be settled or that copies of such
Prospectus may not be so delivered.
DELIVERY OF PROSPECTUS
----------------------
Each Agent will provide a copy of the relevant Prospectus,
appropriately amended or supplemented, which must accompany or
precede each written offer of a Security by such Agent, each
written confirmation of a sale sent to a purchaser or his agent
by such Agent and payment for each Security by a purchaser.
AUTHENTICITY OF SIGNATURES
--------------------------
FPL will cause Bankers Trust Company to furnish the Agents
from time to time with the specimen signatures of each of Bankers
Trust Company's officers, employees and agents who have been
authorized by Bankers Trust Company to authenticate Securities,
but the Agents will have no obligation or liability to FPL or
Bankers Trust Company in respect of the authenticity of the
signature of any officer, employee or agent of FPL or Bankers
Trust Company on any Security.
ADVERTISING COSTS
-----------------
FPL will determine with the Agents the amount and nature of
advertising that may be appropriate in offering the Securities.
Advertising expenses in connection with solicitation of offers to
purchase Securities from FPL will be paid by FPL.
<PAGE>
EXHIBIT B
FPL agrees to pay each Agent a commission in the range of the
following percentages of the aggregate principal amount of
Securities sold to purchasers solicited by such Agent or, in the
event the Securities are being sold at a discount, the issue
price thereof. The actual commission to be paid by FPL to each
Agent will be set forth in separate agreements between FPL and
each of the Agents.
Commission Rate Range
(as a percentage of aggregate principal amount of
Securities sold or the issue price, as the case may be)
-------------------------------------------------------
Term
9 months to less than 12 months
12 months to less than 18 months
18 months to less than 24 months
2 years to less than 3 years
3 years to less than 4 years
4 years to less than 5 years
5 years to less than 6 years
6 years to less than 7 years
7 years to less than 8 years
8 years to less than 9 years
9 years to less than 10 years
10 years to less than 15 years
15 years to less than 20 years
20 years to 30 years
<PAGE>
EXHIBIT C
TERMS AGREEMENT
, 19
-------------------- --
Florida Power & Light Company
700 Universe Boulevard
Juno Beach, Florida 33408
Attention: Treasurer
The undersigned agrees to purchase $ principal
------------------
amount of the Securities of Florida Power & Light Company
pursuant to the terms and conditions set forth in the
Distribution Agreement dated , (the
------------------ ----
"Distribution Agreement") and in the Schedule attached hereto.
[Indicate whether the legal opinions and/or the accountant's
letter and/or the officer's certificate described in
Sections 8(c), 8(d) and 8(e), respectively, will or will not be
required.]
[Additional terms]
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF NEW YORK.
By
----------------------------
Accepted: , 19
----------------- --
Florida Power & Light Company
By
----------------------------------
<PAGE>
SCHEDULE 1 TO EXHIBIT C
Registration Statement:
No. 333-
-------------------
Mortgage:
Mortgage and Deed of Trust dated as of January 1, 1944,
between FPL and Bankers Trust Company, as Trustee, and The
Florida National Bank of Jacksonville (now resigned) as
supplemented.
Aggregate Principal Amount:
Price to Public:
Purchase Price by :
-------------------
% of the principal amount of the Purchased Securities,
-----
plus accrued interest from to
-------------------
.
-------------------
Purchase Date and Time:
Settlement Date:
Method of and Specified Funds for
Payment of Purchase Price:
Closing Location:
Redemption Provisions:
Maturity:
If fixed rate securities
Interest Rate: ( %)
Interest Payment Date(s):
If variable rate securities
Base Rate:
Initial Interest Rate:
Interest Determination Dates:
Interest Reset Dates
Interest Reset Period:
Interest Payment Dates:
Index Maturity:
Interest Payment Period:
Maximum Interest Rate:
Minimum Interest Rate:
Calculation Date:
Spread or Alternate Rate Event Spread:
Spread Multiplier:
Syndicate Provisions:
(Set forth any provisions relating to underwriters' default
and step-up of amounts to be purchased by underwriters acting
with or , as the case
------------------- -------------------
may be).
Additional terms:
This instrument was prepared by:
EXHIBIT 4(I)
Florida Power & Light Company
700 Universe Boulevard
Juno Beach, Florida 33408
FLORIDA POWER & LIGHT COMPANY
TO
BANKERS TRUST COMPANY
AS TRUSTEE UNDER FLORIDA POWER & LIGHT
COMPANY'S MORTGAGE AND DEED OF TRUST,
DATED AS OF JANUARY 1, 1944.
SUPPLEMENTAL INDENTURE
-------------------
RELATING TO A PRINCIPAL AMOUNT
NOT TO EXCEED $
-------------------
OF FIRST MORTGAGE BONDS, DESIGNATED
SECURED MEDIUM-TERM NOTES, SERIES .
------
*[RELATING TO $ PRINCIPAL AMOUNT
----------------
OF FIRST MORTGAGE BONDS, % SERIES
----
DUE , .]
---------- ----
DATED AS OF ,
------------------- ----
* These three lines will be inserted, in lieu of the four
lines immediately preceding them, in any supplemental
indenture relating to the issuance of First Mortgage
Bonds other than those designated Secured Medium-Term
Notes.
<PAGE>
FLORIDA POWER & LIGHT COMPANY
Reconciliation and Tie of Provisions of Trust Indenture Act
of 1939 to provisions of Mortgage and Deed of Trust to Bankers
Trust Company and The Florida National Bank of Jacksonville (now
resigned), as Trustees, dated as of January 1, 1944, as amended.
Sections of Mortgage and
Sections of Act Supplemental Indentures
-------------- -----------------------
310(a) (1) (2) (3) . . Mortgage, 35(a), 88 and 103
310(a) (4) . . . . . . Not Applicable
310(b) . . . . . . . . Mortgage, 99; First Supplemental,
14; Seventh Supplemental, 6
310(c) . . . . . . . . Not Applicable
311(a) . . . . . . . . Mortgage, 98
311(b) . . . . . . . . Mortgage, 98
311(c) . . . . . . . . Not Applicable
312(a) . . . . . . . . Mortgage, 43(a) and 43(b)
312(b) . . . . . . . . Mortgage, 43(c)
312(c) . . . . . . . . Mortgage, 43(d)
313(a) . . . . . . . . Mortgage, 100(a)
313(b) . . . . . . . . Mortgage, 100(b); First
Supplemental, 15
313(c) . . . . . . . . Mortgage, 100(c)
313(d) . . . . . . . . Mortgage, 100(d)
314(a) . . . . . . . . Mortgage, 44
314(b) . . . . . . . . Mortgage, 42
314(c) . . . . . . . . Mortgage, 121, 3, 61 and 7
314(d) . . . . . . . . Mortgage, 59(3), 60, 3 and 28(4)
314(e) . . . . . . . . Mortgage, 121, 3 and 61
314(f) . . . . . . . . Omitted
315(a) . . . . . . . . Mortgage, 89 and 88; First
Supplemental, 13
315(b) . . . . . . . . Mortgage, 66 and 3; First
Supplemental, 11
315(c) . . . . . . . . Mortgage, 88
315(d) . . . . . . . . Mortgage, 89; First
Supplemental, 13
315(e) . . . . . . . . Mortgage, 122
316(a) (1) . . . . . . Mortgage, 71; First
Supplemental, 12
316(a) (2) . . . . . . Omitted
316(b) . . . . . . . . Mortgage, 80
317(a) . . . . . . . . Mortgage, 78
317(b) . . . . . . . . Mortgage, 35(c) and 95; First
Supplemental, 7
318(a) . . . . . . . . Mortgage, 124
<PAGE>
SUPPLEMENTAL INDENTURE
-------------------
INDENTURE, dated as of the day of
---------
, , made and entered into
------------------ -----
by and between FLORIDA POWER & LIGHT COMPANY, a corporation of
the State of Florida, whose post office address is 700 Universe
Boulevard, Juno Beach, Florida 33408 (hereinafter sometimes
called FPL), and BANKERS TRUST COMPANY, a corporation of the
State of New York, whose post office address is Four Albany
Street, New York, New York 10006 (hereinafter called the
Trustee), as the supplemental indenture
-------------------
(hereinafter called the Supplemental
-------------------
Indenture) to the Mortgage and Deed of Trust, dated as of
January 1, 1944 (hereinafter called the Mortgage), made and
entered into by FPL, the Trustee and the Florida National Bank of
Jacksonville, as Co-Trustee (now resigned), the Trustee now
acting as the sole trustee under the Mortgage, which Mortgage was
executed and delivered by FPL to secure the payment of bonds
issued or to be issued under and in accordance with the
provisions thereof, reference to which Mortgage is hereby made,
this Supplemental Indenture being
-------------------
supplemental thereto;
WHEREAS, Section 8 of the Mortgage provides that the form of
each series of bonds (other than the first series) issued
thereunder shall be established by Resolution of the Board of
Directors of FPL and that the form of such series, as established
by said Board of Directors, shall specify the descriptive title
of the bonds and various other terms thereof, and may also
contain such provisions not inconsistent with the provisions of
the Mortgage as the Board of Directors may, in its discretion,
cause to be inserted therein expressing or referring to the terms
and conditions upon which such bonds are to be issued and/or
secured under the Mortgage; and
WHEREAS, Section 120 of the Mortgage provides, among other
things, that any power, privilege or right expressly or impliedly
reserved to or in any way conferred upon FPL by any provision of
the Mortgage, whether such power, privilege or right is in any
way restricted or is unrestricted, may be in whole or in part
waived or surrendered or subjected to any restriction if at the
time unrestricted or to additional restriction if already
restricted, and FPL may enter into any further covenants,
limitations or restrictions for the benefit of any one or more
series of bonds issued thereunder, or FPL may cure any ambiguity
contained therein, or in any supplemental indenture, or may
establish the terms and provisions of any series of bonds other
than said first series, by an instrument in writing executed and
acknowledged by FPL in such manner as would be necessary to
entitle a conveyance of real estate to record in all of the
states in which any property at the time subject to the Lien of
the Mortgage shall be situated; and
WHEREAS, FPL now desires to create the series of bonds
described in Article I hereof and to add to its covenants and
agreements contained in the Mortgage certain other covenants and
agreements to be observed by it and to alter and amend in certain
respects the covenants and provisions contained in the Mortgage;
and
WHEREAS, the execution and delivery by FPL of this
Supplemental Indenture, and the terms
--------------------
of the bonds, hereinafter referred to in Article I, have been
duly authorized by the Board of Directors of FPL by appropriate
resolutions of said Board of Directors;
NOW, THEREFORE, THIS INDENTURE WITNESSETH: That FPL, in
consideration of the premises and of One Dollar to it duly paid
by the Trustee at or before the ensealing and delivery of these
presents, the receipt whereof is hereby acknowledged, and in
further evidence of assurance of the estate, title and rights of
the Trustee and in order further to secure the payment of both
the principal of and interest and premium, if any, on the bonds
from time to time issued under the Mortgage, according to their
tenor and effect, and the performance of all the provisions of
the Mortgage (including any instruments supplemental thereto and
any modification made as in the Mortgage provided) and of said
bonds, hereby grants, bargains, sells, releases, conveys,
assigns, transfers, mortgages, pledges, sets over and confirms
(subject, however, to Excepted Encumbrances as defined in
Section 6 of the Mortgage) unto Bankers Trust Company, as Trustee
under the Mortgage, and to its successor or successors in said
trust, and to said Trustee and its successors and assigns
forever, all property, real, personal and mixed, acquired by FPL
after the date of the execution and delivery of the Mortgage
(except any herein or in the Mortgage, as heretofore
supplemented, expressly excepted), now owned (except any
properties heretofore released pursuant to any provisions of the
Mortgage and in the process of being sold or disposed of by FPL)
or, subject to the provisions of Section 87 of the Mortgage,
hereafter acquired by FPL and wheresoever situated, including
(without in anywise limiting or impairing by the enumeration of
the same the scope and intent of the foregoing) all lands, power
sites, flowage rights, water rights, water locations, water
appropriations, ditches, flumes, reservoirs, reservoir sites,
canals, raceways, dams, dam sites, aqueducts, and all rights or
means for appropriating, conveying, storing and supplying water;
all rights of way and roads; all plants for the generation of
electricity by steam, water and/or other power; all power houses,
gas plants, street lighting systems, standards and other
equipment incidental thereto, telephone, radio and television
systems, air-conditioning systems and equipment incidental
thereto, water works, water systems, steam heat and hot water
plants, substations, lines, service and supply systems, bridges,
culverts, tracks, ice or refrigeration plants and equipment,
offices, buildings and other structures and the equipment
thereof; all machinery, engines, boilers, dynamos, electric, gas
and other machines, regulators, meters, transformers, generators,
motors, electrical, gas and mechanical appliances, conduits,
cables, water, steam heat, gas or other pipes, gas mains and
pipes, service pipes, fittings, valves and connections, pole and
transmission lines, wires, cables, tools, implements, apparatus,
furniture, chattels, and choses in action; all municipal and
other franchises, consents or permits; all lines for the
transmission and distribution of electric current, gas, steam
heat or water for any purpose including towers, poles, wires,
cables, pipes, conduits, ducts and all apparatus for use in
connection therewith; all real estate, lands, easements,
servitudes, licenses, permits, franchises, privileges, rights of
way and other rights in or relating to real estate or the
occupancy of the same and (except as herein or in the Mortgage,
as heretofore supplemented, expressly excepted) all the right,
title and interest of FPL in and to all other property of any
kind or nature appertaining to and/or used and/or occupied and/or
enjoyed in connection with any property hereinbefore or in the
Mortgage, as heretofore supplemented, described.
TOGETHER WITH all and singular the tenements, hereditaments
and appurtenances belonging or in anywise appertaining to the
aforesaid property or any part thereof, with the reversion and
reversions, remainder and remainders and (subject to the
provisions of Section 57 of the Mortgage) the tolls, rents,
revenues, issues, earnings, income, products and profits thereof,
and all the estate, right, title and interest and claim
whatsoever, at law as well as in equity, which FPL now has or may
hereinafter acquire in and to the aforesaid property and
franchises and every part and parcel thereof.
IT IS HEREBY AGREED by FPL that, subject to the provisions
of Section 87 of the Mortgage, all the property, rights, and
franchises acquired by FPL after the date hereof (except any
herein or in the Mortgage, as heretofore supplemented, expressly
excepted) shall be and are as fully granted and conveyed hereby
and as fully embraced within the Lien of the Mortgage, as if such
property, rights and franchises were now owned by FPL and were
specifically described herein and conveyed hereby.
PROVIDED that the following are not and are not intended to
be now or hereafter granted, bargained, sold, released, conveyed,
assigned, transferred, mortgaged, pledged, set over or confirmed
hereunder and are hereby expressly excepted from the Lien and
operation of this Supplemental Indenture and
-------------------
from the Lien and operation of the Mortgage, as heretofore
supplemented, viz: (1) cash, shares of stock, bonds, notes and
other obligations and other securities not hereafter specifically
pledged, paid, deposited, delivered or held under the Mortgage or
covenanted so to be; (2) merchandise, equipment, materials or
supplies held for the purpose of sale in the usual course of
business and fuel (including Nuclear Fuel unless expressly
subjected to the Lien and operation of the Mortgage by FPL in a
future Supplemental Indenture), oil and similar materials and
supplies consumable in the operation of any properties of FPL;
rolling stock, buses, motor coaches, automobiles and other
vehicles; (3) bills, notes and accounts receivable, and all
contracts, leases and operating agreements not specifically
pledged under the Mortgage or covenanted so to be; (4) the last
day of the term of any lease or leasehold which may hereafter
become subject to the Lien of the Mortgage; (5) electric energy,
gas, ice, and other materials or products generated,
manufactured, produced or purchased by FPL for sale, distribution
or use in the ordinary course of its business; all timber,
minerals, mineral rights and royalties; (6) FPL's franchise to be
a corporation; and (7) the properties already sold or in the
process of being sold by FPL and heretofore released from the
Mortgage and Deed of Trust, dated as of January 1, 1926, from
Florida Power & Light Company to Bankers Trust Company and The
Florida National Bank of Jacksonville, trustees, and specifically
described in three separate releases executed by Bankers Trust
Company and The Florida National Bank of Jacksonville, dated
July 28, 1943, October 6, 1943 and December 11, 1943, which
releases have heretofore been delivered by the said trustees to
FPL and recorded by FPL among the Public Records of all Counties
in which such properties are located; provided, however, that the
property and rights expressly excepted from the Lien and
operation of the Mortgage in the above subdivisions (2) and (3)
shall (to the extent permitted by law) cease to be so excepted in
the event and as of the date that the Trustee or a receiver or
trustee shall enter upon and take possession of the Mortgaged and
Pledged Property in the manner provided in Article XIII of the
Mortgage by reason of the occurrence of a Default as defined in
Section 65 thereof.
TO HAVE AND TO HOLD all such properties, real, personal and
mixed, granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, pledged, set over or confirmed by FPL as
aforesaid, or intended so to be, unto Bankers Trust Company, the
Trustee, and its successors and assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the
same terms, trusts and conditions and subject to and with the
same provisos and covenants as are set forth in the Mortgage, as
heretofore supplemented, this Supplemental
-------------------
Indenture being supplemental thereto.
AND IT IS HEREBY COVENANTED by FPL that all terms,
conditions, provisos, covenants and provisions contained in the
Mortgage shall affect and apply to the property hereinbefore
described and conveyed and to the estate, rights, obligations and
duties of FPL and the Trustee and the beneficiaries of the trust
with respect to said property, and to the Trustee and its
successors as Trustee of said property in the same manner and
with the same effect as if said property had been owned by FPL at
the time of the execution of the Mortgage, and had been
specifically and at length described in and conveyed to said
Trustee, by the Mortgage as a part of the property therein stated
to be conveyed.
FPL further covenants and agrees to and with the Trustee and
its successors in said trust under the Mortgage, as follows:
ARTICLE I
SERIES OF BONDS
-------------------
**SECTION 1. (I) There shall be a series of bonds
designated "Secured Medium-Term Notes, Series ", herein
------
sometimes referred to as the Series", each of
-------------------
which shall also bear the descriptive title First Mortgage Bond,
and the form thereof, which shall be established by Resolution of
the Board of Directors of FPL, shall contain suitable provisions
with respect to the matters hereinafter in this Section
specified. Bonds of the Series shall be
-------------------
issued from time to time in an aggregate principal amount not to
exceed $ at any one time Outstanding except as
-------------------
provided in Section 16 of the Mortgage. [The amount which may be
Outstanding from time to time will be stated in one or more
notices of receipt of advance under mortgage providing for future
advances (a form of which is annexed hereto) executed by the
Company and recorded in Palm Beach County, Florida, and in one or
more acknowledgements of future advance (a form of which is
annexed hereto) executed by FPL and the Trustee and recorded in
Monroe County, Georgia.] Bonds of the Series
-------------------
shall be issued as fully registered bonds in the denominations of
[One Hundred] Thousand Dollars and, at the option of FPL, in any
larger amount that is an integral multiple of [One] Thousand
Dollars (the exercise of such option to be evidenced by the
execution and delivery thereof); each bond of the
Series shall mature on [such date not less
-------------------
than months nor more than
---------------- ---------------
years from date of issue,] shall bear interest at [such rate or
rates (which may be either fixed or variable) and have such other
terms and provisions not inconsistent with the Mortgage as the
Board of Directors may determine in accordance with a Resolution
filed with the Trustee referring to this
-------------------
Supplemental Indenture]; interest on bonds of the
Series [which bear interest at a fixed rate]
-------------------
shall be payable [semi-annually on and
-------------------
of each year] and at maturity (each an
-------------------
interest payment date); interest on bonds of the
Series [which bear interest at a variable
-------------------
rate] shall be payable [on the dates established on the Issue
Date [or the Original Interest Accrual Date] with respect to such
bonds and shall be set forth in such bonds.] [Notwithstanding
the foregoing, so long as there is no existing default in the
payment of interest on the bonds of the
-------------------
Series, all bonds of the Series authenticated
-------------------
by the Trustee after the Record Date hereinafter specified for
any interest payment date, and prior to such interest payment
date (unless the Issue Date [or the Original Interest Accrual
Date] is after such Record Date), shall be dated the date of
authentication, but shall bear interest from such interest
payment date, and the person in whose name any bond of the
Series is registered at the close of business
-------------------
---------------------
** The provisions in this Section 1 will be inserted in
supplemental indentures relating to the issuance of First
Mortgage Bonds designated Secured Medium Term Notes, provided
that the bracketed language may change.
<PAGE>
on any Record Date with respect to any interest payment date
shall be entitled to receive the interest payable on such
interest payment date, notwithstanding the cancellation of such
bond of the Series, upon any transfer or
-------------------
exchange thereof subsequent to the Record Date and on or prior to
such interest payment date. If the Issue Date [or the Original
Interest Accrual Date] of the bonds of the
-------------------
Series of a designated interest rate and maturity is after the
Record Date, such bonds shall bear interest from the Issue Date
[or the Original Interest Accrual Date] but payment of interest
shall commence on the second interest payment date succeeding the
Issue Date [or the Original Interest Accrual Date]. "Record
Date" for bonds of the Series which bear
-------------------
interest at a fixed rate shall mean for
-------------------
interest payable and for
------------------- -------------------
interest payable , and for bonds of the
-------------------
Series which bear interest at a variable
-------------------
rate, the date 15 calendar days prior to any interest payment
date, provided that, interest payable on the maturity date will
be payable to the person to whom the principal thereof shall be
payable. "Issue Date" [or "Original Interest Accrual Date"] with
respect to bonds of the Series of a
-------------------
designated interest rate and maturity [unless a Resolution filed
with the Trustee on or before such date shall specify another
date from which interest shall accrue, then such other date for
bonds of such designated interest rate and maturity.] shall mean
the date of first authentication of bonds of such designated
interest rate and maturity.] The principal of and interest on
each said bond is payable at the office or agency of FPL in the
Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of
payment is legal tender for public and private debts. Bonds of
the Series shall be dated as in Section 10 of
-------------------
the Mortgage provided.
***[(II) Bonds of the Series may be
-------------------
redeemable either at the option of FPL or pursuant to the
requirements of the Mortgage (including, among other
requirements, the application of cash delivered to or deposited
with the Trustee pursuant to the provisions of Section 39 or
Section 64 of the Mortgage or with proceeds of Released Property)
in whole at any time, or in part from time to time, prior to
maturity, upon notice, as provided in Section 52 of the Mortgage,
mailed at least thirty (30) days prior to the date fixed for
redemption, as the Board of Directors may determine in accordance
with a Resolution filed with the Trustee referring to this
Supplement Indenture.]
-------------------
[(III) At the option of the registered owner, any bonds of
the Series, upon surrender thereof for
-------------------
cancellation at the office or agency of FPL in the Borough of
Manhattan, The City of New York, together with a written
instrument of transfer wherever required by FPL, duly executed by
the registered owner or by his duly authorized attorney, shall
(subject to the provisions of Section 12 of the Mortgage) be
---------------------------
*** These or other redemption provisions or other terms and
conditions relating to the series of First Mortgage Bonds
may be inserted here.
<PAGE>
exchangeable for a like aggregate principal amount of bonds of
the same series of other authorized denominations which have the
same issue date, maturity date, and redemption provisions, if
any, and which bear interest at the same rate.]
Bonds of the Series shall be
-------------------
transferrable (subject to the provisions of Section 12 of the
Mortgage) at the office or agency of FPL in the Borough of
Manhattan, The City of New York.
Upon any exchange or transfer of bonds of the
Series, FPL may make a charge therefor
-------------------
sufficient to reimburse it for any tax or taxes or other
governmental charge, as provided in Section 12 of the Mortgage,
but FPL hereby waives any right to make a charge in addition
thereto for any exchange or transfer of bonds of the
Series.
-------------------
****[SECTION 1. (I) There shall be a series of bonds
designated " % Series due , ", herein
---- ------------------- ------
sometimes referred to as the " Series", each
-------------------
of which shall also bear the descriptive title First Mortgage
Bond, and the form thereof, which shall be established by
Resolution of the Board of Directors of FPL, shall contain
suitable provisions with respect to the matters hereinafter in
this Section specified. Bonds of the Series
-------------------
shall mature on , and shall be issued
------------------ ------
as fully registered bonds in denominations of [One] Thousand
Dollars and, at the option of FPL, in any multiple or multiples
of [One] Thousand Dollars (the exercise of such option to be
evidenced by the execution and delivery thereof); they shall bear
interest [at the rate of % per annum, payable semi-
--------
annually on and of each
------------------ -------------------
year;] the principal of and interest on each said bond to be
payable at the office or agency of FPL in the Borough of
Manhattan, The City of New York, in such coin or currency of the
United States of America as at the time of payment is legal
tender for public and private debts. Bonds of the
Series shall be dated as in Section 10 of the
-------------------
Mortgage provided.
[(II) Bonds of the
-------------------
Series shall be redeemable either at the option of FPL or
pursuant to the requirements of the Mortgage (including, among
other requirements, the application of cash delivered to or
deposited with the Trustee pursuant to the provisions of
Section 39 or Section 64 of the Mortgage or with proceeds of
Released Property) in whole at any time, or in part from time to
time, prior to maturity, upon notice, as provided in Section 52
of the Mortgage, mailed at least thirty (30) days prior to the
-----------------------
**** These provisions will be inserted in any supplemental
indentures relating to the issuance of First Mortgage
Bonds other than those designated Secured Medium-Term
Notes, provided that the bracketed language may change.
<PAGE>
date fixed for redemption, at the following general redemption
prices, expressed in percentages of the principal amount of the
bonds to be redeemed:
GENERAL REDEMPTION PRICES
If redeemed during the 12 month period ending
,
-------------------
in each case, together with accrued interest to the date fixed
for redemption.]*****
(III) At the option of the registered owner, any bonds
of the Series, upon surrender
-------------------
thereof for cancellation at the office or agency of FPL in the
Borough of Manhattan, The City of New York, together with a
written instrument of transfer wherever required by FPL, duly
executed by the registered owner or by his duly authorized
attorney, shall (subject to the provisions of Section 12 of the
Mortgage) be exchangeable for a like aggregate principal amount
of bonds of the same series of other authorized denominations.
Bonds of the Series shall be
-------------------
transferable (subject to the provisions of Section 12 of the
Mortgage) at the office or agency of FPL in the Borough of
Manhattan, The City of New York.
Upon any exchange or transfer of bonds of the
Series, FPL may make a charge therefor
-------------------
sufficient to reimburse it for any tax or taxes or other
governmental charge, as provided in Section 12 of the Mortgage,
but FPL hereby waives any right to make a charge in addition
thereto for any exchange or transfer of bonds of the
Series.]
-------------------
-----------------
***** These or other redemption provisions or other terms and
conditions relating to the series of First Mortgage Bonds
may be inserted here.*****
<PAGE>
ARTICLE II
DIVIDEND COVENANT
SECTION 2. Section 3 of the Third Supplemental Indenture,
as heretofore amended, is hereby further amended by inserting the
words "or Series" immediately
-------------------
before the words "remain Outstanding".
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3. Subject to the amendments provided for in this
Supplemental Indenture, the terms
-------------------
defined in the Mortgage, as heretofore supplemented, shall, for
all purposes of this Supplemental Indenture,
-------------------
have the meanings specified in the Mortgage, as heretofore
supplemented.
******SECTION 4. The holders of bonds of the
Series consent that FPL may, but shall not be
-------------------
obligated to, fix a record date for the purpose of determining
the holders of bonds of the Series entitled
-------------------
to consent to any amendment, supplement or waiver. If a record
date is fixed, those persons who were holders at such record date
(or their duly designated proxies), and only those persons, shall
be entitled to consent to such amendment, supplement or waiver or
to revoke any consent previously given, whether or not such
persons continue to be holders after such record date. No such
consent shall be valid or effective for more than 90 days after
such record date.
SECTION 5. The Trustee hereby accepts the trust herein
declared, provided, created or supplemented and agree to perform
the same upon the terms and conditions herein and in the
Mortgage, as heretofore supplemented, set forth and upon the
following terms and conditions:
The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of
this Supplemental Indenture or for or in
-------------------
respect of the recitals contained herein, all of which recitals
are made by FPL solely. In general, each and every term and
condition contained in Article XVII of the Mortgage, as
heretofore amended, shall apply to and form part of this
Supplemental Indenture with the same force
-------------------
and effect as if the same were herein set forth in full with such
omissions, variations and insertions, if any, as may be
--------------------
****** This provision may be deleted in any supplemental indenture
relating to the issuance of First Mortgage Bonds other than
those which are issued to the Depository Trust Company, or
its successor. The remaining sections will be renumbered
accordingly.
<PAGE>
appropriate to make the same conform to the provisions of this
Supplemental Indenture.
-------------------
SECTION 6. Whenever in this
-------------------
Supplemental Indenture either of the parties hereto is named or
referred to, this shall, subject to the provisions of Articles
XVI and XVII of the Mortgage, as heretofore amended, be deemed to
include the successors and assigns of such party, and all the
covenants and agreements in this Supplemental
-------------------
Indenture contained by or on behalf of FPL, or by or on behalf of
the Trustee, or either of them, shall, subject as aforesaid, bind
and inure to the respective benefits of the respective successors
and assigns of such parties, whether so expressed or not.
SECTION 7. Nothing in this
-------------------
Supplemental Indenture, expressed or implied, is intended, or
shall be construed, to confer upon, or to give to, any person,
firm or corporation, other than the parties hereto and the
holders of the bonds and coupons Outstanding under the Mortgage,
any right, remedy or claim under or by reason of this
Supplemental Indenture or any covenant,
-------------------
condition, stipulation, promise or agreement hereof, and all the
covenants, conditions, stipulations, promises and agreements in
this Supplemental Indenture contained by or
-------------------
on behalf of FPL shall be for the sole and exclusive benefit of
the parties hereto, and of the holders of the bonds and coupons
Outstanding under the Mortgage.
SECTION 8. The Mortgage, as heretofore supplemented and
amended and as supplemented hereby, is intended by the parties
hereto, as to properties now or hereafter encumbered thereby and
located within the State of Georgia, to operate and is to be
construed as granting a lien only on such properties and not as a
deed passing title thereto.
SECTION 9. This Supplemental
-------------------
Indenture shall be executed in several counterparts, each of
which shall be an original and all of which shall constitute but
one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, FPL has caused its corporate name to be
hereunto affixed, and this instrument to be signed and sealed by
its President or one of its Vice Presidents, and its corporate
seal to be attested by its Secretary or one of its Assistant
Secretaries for and in its behalf, and BANKERS TRUST COMPANY has
caused its corporate name to be hereunto affixed, and this
instrument to be signed and sealed by one of its Vice Presidents
or Assistant Vice Presidents, and its corporate seal to be
attested by one of its Assistant Vice Presidents or one of its
Assistant Secretaries, all as of the day and year first above
written.
FLORIDA POWER & LIGHT COMPANY
By:
-------------------------
Attest:
--------------------
Executed, sealed and delivered by
FLORIDA POWER & LIGHT COMPANY
in the presence of:
------------------------------
------------------------------
<PAGE>
BANKERS TRUST COMPANY,
As Trustee
By:
---------------------------
Attest:
--------------------
Executed, sealed and delivered by
BANKERS TRUST COMPANY
in the presence of:
---------------------------
---------------------------
<PAGE>
STATE OF FLORIDA )
) SS.:
COUNTY OF PALM BEACH )
On the day of ,
--------- -------------------
in the year , 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 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
----------
, , before me personally
------------------ ------
appeared and ,
----------------------------- ------------------
respectively, the and an
---------------- ---------------------
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, and did take an oath.
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
-------------------
<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On the day of ,
--------- -------------------
in the year , 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 BANKERS TRUST 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
----------
, , before me personally
------------------ ------
appeared and ,
------------------- --------------------
respectively, a and an of
-------------- ------------------
BANKERS TRUST COMPANY, 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, and did take an oath.
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 County
---------------
My Commission Expires
-------------------
[LETTERHEAD OF STEEL, HECTOR & DAVIS LLP]
EXHIBIT 5(a)
May 18, 1998
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-3 to
be filed with the Securities and Exchange Commission under to the
Securities Act of 1933, as amended, on or about the date hereof
(the "Registration Statement") in connection with the proposed
offering of $210,000,000 in principal amount of First Mortgage
Bonds (the "New Bonds"). 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
thereby.
Based upon the foregoing, we are of the opinion that the New
Bonds, when sold as contemplated in the Registration Statement,
will be valid, legal and binding obligations of the Company,
except as such may later be limited by bankruptcy, insolvency or
other laws affecting mortgagees' and other creditors' rights
generally and equitable limitations on the enforceability of
specific remedies.
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 captions "Experts" and "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 LLP
STEEL HECTOR & DAVIS LLP
[LETTERHEAD OF REID & PRIEST LLP]
EXHIBIT 5(b)
New York, New York
May 18, 1998
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-3 to
be filed with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended, on or about the date
hereof (the "Registration Statement") in connection with the
proposed offering of $210,000,000 in principal amount of First
Mortgage Bonds (the "New Bonds"). 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 the New
Bonds, when sold in the manner contemplated in the Registration
Statement, will be valid, legal and binding obligations of the
Company, except as such may later be limited by bankruptcy,
insolvency or other laws affecting mortgagees' and other
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 Opinions".
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 23(A)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of Florida Power & Light Company on Form
S-3 of our report dated February 13, 1998, appearing in Florida
Power & Light Company's Annual Report on Form 10-K for the year
ended December 31, 1997, and to the reference to us under heading
"Experts" in the Prospectus which is part of this Registration
Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Miami, Florida
May 18, 1998
- -----------------------------------------------------------------------------
UNITED STATES
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)
-----------
------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
BANKERS TRUST COMPANY
LEGAL DEPARTMENT
130 LIBERTY STREET, 31ST FLOOR
NEW YORK, NEW YORK 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
---------------------------------
FLORIDA POWER & LIGHT COMPANY
(Exact name of obligor as specified in its charter)
FLORIDA 59-0247775
(State or other jurisdiction of (I.R.S. employer
Incorporation or organization) Identification no.)
9250 WEST FLAGLER STREET
MIAMI, FLORIDA 33174
(Address of principal executive offices)
FLORIDA POWER & LIGHT COMPANY
FIRST MORTGAGE BONDS, % SERIES DUE
--- --------
(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.
NAME ADDRESS
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the Trustee, describe each
such affiliation.
None.
ITEM 3. -15. NOT APPLICABLE
ITEM 16. LIST OF EXHIBITS.
EXHIBIT 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990, Certificate of Amendment
of the Organization Certificate of Bankers Trust
Company dated June 21, 1995 - Incorporated herein by
reference to Exhibit 1 filed with Form T-1 Statement,
Registration No. 33-65171, Certificate of Amendment of
the Organization Certificate of Bankers Trust Company
dated March 20, 1996, incorporate by referenced to
Exhibit 1 filed with Form T-1 Statement, Registration
No. 333-25843 and Certificate of Amendment of the
Organization Certificate of Bankers Trust Company
dated June 19, 1997, copy attached.
EXHIBIT 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed
with Form T-1 Statement, Registration No. 33-21047.
EXHIBIT 3 - Authorization of the Trustee to exercise corporate
trust powers Incorporated herein by reference to
Exhibit 2 filed with Form T-1 Statement, Registration
No. 33-21047.
EXHIBIT 4 - Existing By-Laws of Bankers Trust Company, as amended on
November 18, 1997. Copy attached.
-2-
<PAGE>
EXHIBIT 5 - Not applicable.
EXHIBIT 6 - Consent of Bankers Trust Company required by
Section 321(b) of the Act. - Incorporated herein by
reference to Exhibit 4 filed with Form T-1 Statement,
Registration No. 22-18864.
EXHIBIT 7 - The latest report of condition of Bankers Trust Company
dated as of December 31, 1997. Copy attached.
EXHIBIT 8 - Not Applicable.
EXHIBIT 9 - Not Applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
as amended, the trustee, Bankers Trust Company, a corporation
organized and existing under the laws of the State of New York, 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 State of New York, on the 18th day of May, 1998.
BANKERS TRUST COMPANY
By: /s/ Jason Theriault
------------------------------
Jason Theriault
Assistant Treasurer
-4-
<PAGE>
STATE OF NEW YORK,
BANKING DEPARTMENT
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of
New York, DO HEREBY APPROVE the annexed Certificate entitled
"CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS
TRUST COMPANY UNDER SECTION 8005 OF THE BANKING LAW," dated June 19,
1997, providing for an increase in authorized capital stock from
$1,601,666,670 consisting of 100,166,667 shares with a par value of
$10 each designated as Common Stock and 600 shares with a par value of
$1,000,000 each designated as Series Preferred Stock to $2,001,666,670
consisting of 100,166,667 shares with a par value of $10 each
designated as Common Stock and 1,000 shares with a par value of
$1,000,000 each designated as Series Preferred Stock.
WITNESS, my hand and official seal of the Banking Department at the City of
New York,
this 27TH day of June in the Year of our Lord one thousand nine
---- ----
hundred and NINETY-SEVEN.
Manuel Kursky
------------------------------
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a
Managing Director and an Assistant Secretary of Bankers Trust Company,
do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby
amended to increase the aggregate number of shares which the
corporation shall have authority to issue and to increase the amount
of its authorized capital stock in conformity therewith.
4. Article III of the organization certificate with reference to
the authorized capital stock, the number of shares into which the
capital stock shall be divided, the par value of the shares and the
capital stock outstanding, which reads as follows:
"III. The amount of capital stock which the corporation is hereafter
to have is One Billion, Six Hundred and One Million, Six Hundred
Sixty-Six Thousand, Six Hundred Seventy Dollars ($1,601,666,670),
divided into One Hundred Million, One Hundred Sixty-Six Thousand, Six
Hundred Sixty-Seven (100,166,667) shares with a par value of $10 each
designated as Common Stock and 600 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter
to have is Two Billion One Million, Six Hundred Sixty-Six Thousand,
Six Hundred Seventy Dollars ($2,001,666,670), divided into One Hundred
Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 1000 shares with a par value of One Million Dollars
($1,000,000) each designated as Series Preferred Stock."
5. The foregoing amendment of the organization certificate was
authorized by unanimous written consent signed by the holder of all
outstanding shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this
19th day of June, 1997.
James T. Byrne, Jr.
------------------------
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
------------------------
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an
Assistant Secretary of Bankers Trust Company, the corporation
described in the foregoing certificate; that she has read the
foregoing certificate and knows the contents thereof, and that the
statements herein contained are true.
Lea Lahtinen
------------------------
Lea Lahtinen
Sworn to before me this 19th day
of June, 1997.
Sandra L. West
- --------------------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
BY-LAWS
NOVEMBER 18, 1997
BANKERS TRUST COMPANY
NEW YORK
<PAGE>
BY-LAWS
OF
BANKERS TRUST COMPANY
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, on
the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall direct
the proceedings and the order of business. The Secretary shall act as secretary
of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than ten nor more than twenty-five, as may from time to time be fixed
by resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board of
Directors or any Committee thereof may participate in a meeting of the Board of
Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No person who shall have attained age 72 shall be eligible to be elected or
re-elected a director. Such director may, however, remain a director of the
Company until the next annual meeting of the stockholders of Bankers Trust New
York Corporation (the Company's parent) so that such director's retirement will
coincide with the retirement date from Bankers Trust New York Corporation.
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board of
Directors may be filled by the affirmative vote of a majority of the directors
then in office, and the directors so elected shall hold office for the balance
of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence, such
other director as the Board of Directors from time to time may designate shall
preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time to
time on the third Tuesday of the month. If the day appointed for holding such
regular meetings shall be a legal holiday, the regular meeting to be held on
such day shall be held on the next business day thereafter. Special meetings of
the Board of Directors may be called upon at least two day's notice whenever it
may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, in their absence, by such other director as the Board of Directors
may have designated pursuant to Section 3 of this Article, and shall be called
upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of whom must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member or members of the Committee present, even though
less than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the Committee, and
each such substitute or substitutes shall be counted for quorum, voting, and all
other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall conduct
the annual directors' examinations of the Company as required by the New York
State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
Committee shall hold regular quarterly meetings and during the intervals thereof
shall meet at other times on call of the Chairman.
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 1. The Board of Directors shall elect from among their number a Chairman
of the Board and a Chief Executive Officer; and shall also elect a President,
and may also elect a Senior Vice Chairman, one or more Vice Chairmen, one or
more Executive Vice Presidents, one or more Senior Managing Directors, one or
more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other officers or assistant officers as shall from time to
time be elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman, may from time to time appoint assistant officers.
All officers elected or appointed by the Board of Directors shall hold their
respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the
Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of Directors
may require any and all officers and employees to give security for the faithful
performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer of
the Company who may also hold the additional title of Chairman of the Board,
President, Senior Vice Chairman or Vice Chairman and such person shall have,
subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall perform all the duties usual to such office
and shall have such other powers as may be prescribed or assigned to him from
time to time by the Board of Directors or vested in him by law or by these
By-Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
Committee. The General Auditor shall have unrestricted access to all records and
premises of the Company and shall delegate such authority to his subordinates.
He shall have the duty to report to the Audit Committee on all matters
concerning the internal audit program and the adequacy of the system of internal
controls of the Company which he deems advisable or which the Audit Committee
may request. Additionally, the General Auditor shall have the duty of reporting
independently of all officers of the Company to the Audit Committee at least
quarterly on any matters concerning the internal audit program and the adequacy
of the system of internal controls of the Company that should be brought to the
attention of the directors except those matters responsibility for which has
been vested in the General Credit Auditor. Should the General Auditor deem any
matter to be of special immediate importance, he shall report thereon forthwith
to the Audit Committee. The General Auditor shall report to the Chief Financial
Officer only for administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018 of
the New York Banking Law, indemnify any person who is or was made, or threatened
to be made, a party to an action or proceeding, whether civil or criminal,
whether involving any actual or alleged breach of duty, neglect or error, any
accountability, or any actual or alleged misstatement, misleading statement or
other act or omission and whether brought or threatened in any court or
administrative or legislative body or agency, including an action by or in the
right of the Company to procure a judgment in its favor and an action by or in
the right of any other corporation of any type or kind, domestic or foreign, or
any partnership, joint venture, trust, employee benefit plan or other
enterprise, which any director or officer of the Company is servicing or served
in any capacity at the request of the Company by reason of the fact that he, his
testator or intestate, is or was a director or officer of the Company, or is
serving or served such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against judgments,
fines, amounts paid in settlement, and costs, charges and expenses, including
attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted pursuant to, or provided by,
the New York Banking Law or other rights created by (i) a resolution of
stockholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-Laws
authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the person serving another
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise so served at the specific request of the Company, evidenced by
a written communication signed by the Chairman of the Board, the Chief Executive
Officer or the President, and (ii) only if and to the extent that, after making
such efforts as the Chairman of the Board, the Chief Executive Officer or the
President shall deem adequate in the circumstances, such person shall be unable
to obtain indemnification from such other enterprise or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
SECTION 6. The right to be indemnified or to the reimbursement or advancement of
expense pursuant to this Article V (i) is a contract right pursuant to which the
person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is
not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in Section 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
ARTICLE VIII
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
<PAGE>
I, Jason Theriault, Assistant Treasurer of Bankers Trust Company, New York, New
York, hereby certify that the foregoing is a complete, true and correct copy of
the By-Laws of Bankers Trust Company, and that the same are in full force and
effect at this date.
/S/ Jason Theriault
-------------------------------------
ASSISTANT TREASURER
DATED: May 18, 1998
<PAGE>
Legal Title of Bank: Bankers Trust Company Call Date: 12/31/97 ST-BK: 36-4840
Address: 130 Liberty Street Vendor ID: D CERT: 00623
City, State ZIP: New York, NY 10006
FDIC Certificate No.: 0 0 6 2 3
FFIEC 031
Page RC-1
11
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of
the quarter.
SCHEDULE RC--BALANCE SHEET
------------
C400
---------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- -------------------------------------------------------------------------------
ASSETS / / / / / / / / / /
1. Cash and balances due from depository
institutions (from Schedule RC-A): / / / / / / / / / /
a. Noninterest-bearing balances and
currency and coin (1) .......... 0081 2,121,000 1.a.
b. Interest-bearing balances (2) .. 0071 4,770,000 1.b.
2. Securities: / / / / / / / / / /
a. Held-to-maturity securities (from
Schedule RC-B, column A) ....... 1754 0 2.a.
b. Available-for-sale securities
(from Schedule RC-B, column D).. 1773 4,015,000 2.b.
3. Federal funds sold and securities
purchased under agreements to resell... 1350 28,927,000 3.
4. Loans and lease financing receivables: / / / / / / / / / /
a. Loans and leases, net
of unearned income
(from Schedule RC-C) RCFD 2122 17,692,000 / / / / / / / 4.a.
b. LESS: Allowance for
loan and lease losses RCFD 3123 659,000 / / / / / / / 4.b.
c. LESS: Allocated
transfer risk reserve RCFD 3128 0 / / / / / / / 4.c.
d. Loans and leases, net of
unearned income, / / / / / / /
allowance, and reserve
(item 4.a minus 4.b and 4.c) ... 2125 17,033,000 4.d.
5. Trading Assets (from schedule RC-D)... 3545 45,488,000 5.
6. Premises and fixed assets (including
capitalized leases) .................. 2145 766,000 6.
7. Other real estate owned
(from Schedule RC-M) ................. 2150 188,000 7.
8. Investments in unconsolidated
subsidiaries and associated
companies (from Schedule RC-M) ....... 2130 58,000 8.
9. Customers' liability to this bank
on acceptances outstanding ........... 2155 633,000 9.
10. Intangible assets (from Schedule RC-M) 2143 83,000 10.
11. Other assets (from Schedule RC-F) .... 2160 5,957,000 11.
12. Total assets (sum of items 1
through 11) .......................... 2170 110,039,000 12.
--------------------------
__________________________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
Legal Title
of Bank: Bankers Trust Company Call Date: 12/31/97 ST-BK: 36-4840
Address: 130 Liberty Street Vendor ID: D CERT: 00623
City, State Zip: New York, NY 10006
FDIC Certificate No.: 0 0 6 2 3 FFIEC 031
Page RC-2
12
SCHEDULE RC--CONTINUED ------------------------
Dollar Amounts in Thousands / / / / / / Bil Mil Thou
- ------------------------------------------------------------------------------
LIABILITIES / / / / / / / / /
13. Deposits: / / / / / / / / /
a. In domestic offices (sum of
totals of columns A and C
from Schedule RC-E, part I) RCON 2200 24,608,000 13.a.
(1) Noninterest-
bearing(1).. RCON 6631 2,856,000. / / / / / / / / / 13.a.(1)
(2) Interest-
bearing ..... RCON 6636 21,752,000. / / / / / / / / / 13.a.(2)
b. In foreign offices, Edge and
Agreement subsidiaries, and IBFs
(from Schedule RC-E / / / / / / / / /
part II) RCFN 2200 20,529,000 13.b.
(1) Noninterest-
bearing .....RCFN 6631 2,122,000 / / / / / / / / / 13.b.(1)
(2) Interest-
bearing .....RCFN 6636 18,407,000 / / / / / / / / / 13.b.(2)
14. Federal funds purchased and securities
sold under agreements to repurchase RCFD 2800 13,777,000 14.
15. a. Demand notes issued to the
U.S. Treasury ................... RCON 2840 0 15.a.
b. Trading liabilities
(from Schedule RC-D)............. RCFD 3548 24,968,000 15.b.
16. Other borrowed money (includes
mortgage indebtedness and obligations
under capitalized leases): / / / / / / / / /
a. With a remaining maturity
of one year or less ........... RCFD 2332 5,810,000 16.a.
b. With a remaining maturity of
more than one year through
three years.................... A547 4,702,000 16.b.
c. With a remaining maturity
of more than three years........ A548 1,750,000 16.c
17. Not Applicable. / / / / / / / / / 17.
18. Bank's liability on acceptances
executed and outstanding ............. RCFD 2920 633,000 18.
19. Subordinated notes and debentures (2). RCFD 3200 1,307,000 19.
20. Other liabilities (from Schedule RC-G) RCFD 2930 5,961,000 20.
21. Total liabilities (sum of items 13
through 20) .......................... RCFD 2948 104,045,000 21.
22. Not Applicable / / / / / / / /
/ / / / / / / / 22.
EQUITY CAPITAL / / / / / / / /
23. Perpetual preferred stock and
related surplus ..................... RCFD 3838 1,000,000 23.
24. Common stock ........................ RCFD 3230 1,352,000 24.
25. Surplus (exclude all surplus
related to preferred stock) ......... RCFD 3839 540,000 25.
26. a. Undivided profits and capital
reserves ....................... RCFD 3632 3,526,000 26.a.
b. Net unrealized holding gains
(losses) on available-for-sale
securities ..................... RCFD 8434 ( 45,000)26.b.
27. Cumulative foreign currency
translation adjustments ............. RCFD 3284 (379,000)27.
28. Total equity capital (sum of items
23 through 27) ...................... RCFD 3210 5,994,000 28.
29. Total liabilities and equity capital
(sum of items 21 and 28)............. RCFD 3300 110,039,000 29
----------------------------
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the
statement below that best describes the
most comprehensive level of auditing Number
work performed for the bank by independent ------
external auditors as of any date during 1996 RCFD 6724 N/A M.1
-----------------------
1 = Independent audit of the bank 4 = Directors' examination of the
conducted in accordance bank performed by other
with generally accepted external auditors (may be
auditing standards by a certified required by state chartering
public accounting firm which authority)
submits a report on the bank
2 = Independent audit of the bank's 5 = Review of the bank's financial
parent holding company statements by external
conducted in accordance with auditos
generally accepted auditing 6 = Compliation of the bank's
standards by a certified public financial statements by
accounting firm which external auditors
submits a report on the 7 = Other audit procedures
consolidated holding company (excluding tax preparation
(but not on the bank separately) work)
3 = Directors' examination of the 8 = No external audit work
bank conducted in accordance with
generally accepted auditing
standards by a certified public
accounting firm (may be required
by state chartering authority)
______________________
(1) Including total demand deposits and noninterest-bearing time
and savings deposits.
(2) Includes limited-life preferred stock and related surplus.
