As filed with the Securities and Exchange Commission on July 29, 1999
Registration Statement No. 333-
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======================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
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 its 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)
----------------------------
DENNIS P. COYLE JEFFREY I. MULLENS, P.A. ROBERT J. REGER, JR.,
General Counsel and Steel Hector & Davis LLP ESQ.
Secretary 1900 Phillips Point West Thelen Reid & Priest
Florida Power & Light 777 South Flagler Drive LLP
Company West Palm Beach, Florida 40 West 57th Street
700 Universe Boulevard 33401 New York, New York
Juno Beach, Florida (561) 650-7257 10019
33408 (212) 603-2000
(561) 694-4644
(Names, addresses, including, zip codes, and telephone numbers, including
area codes, of agents for service)
----------------------------
It is respectfully requested that the Commission send copies of all
notices, orders and communications to:
Richard L. Harden
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
================================================================
Title of Each Class of Proposed Maximum Amount of
Securities to be Aggregate Offering Registration
Registered Price* Fee
================================================================
First Mortgage Bonds $425,000,000 $118,150
================================================================
* Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(o) under the Securities
Act of 1933.
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. 333-
53053.
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>
The information in this prospectus is not complete and may be
changed. Florida Power & Light Company may not sell these
securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus
is not an offer to sell these securities and it is not soliciting
an offer to buy these securities in any state where the offer or
sale is not permitted.
SUBJECT TO COMPLETION, DATED JULY 29, 1999
PROSPECTUS
$500,000,000
FLORIDA POWER & LIGHT COMPANY
FIRST MORTGAGE BONDS
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Florida Power & Light Company may offer from time to time up
to $500,000,000 of its First Mortgage Bonds.
Florida Power & Light Company will provide specific terms of
these First Mortgage Bonds, including their offering prices, in
supplements to this prospectus. The supplements may also add,
update or change information contained in this prospectus. You
should read this prospectus and any supplements carefully before
you invest.
Florida Power & Light Company may offer these First Mortgage
Bonds directly or through underwriters, agents or dealers. The
supplements to this prospectus will describe the terms of any
particular plan of distribution, including any underwriting
arrangements. The "Plan of Distribution" section beginning on
page 9 of this prospectus also provides more information on this
topic.
Florida Power & Light Company's principal executive office is
located at 700 Universe Boulevard, Juno Beach, Florida 33408,
telephone (561) 694-4000, and its mailing address is P.O. Box
14000, Juno Beach, Florida 33408-0420.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE
SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR
COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
July , 1999.
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<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
FPL files annual, quarterly and other reports and other
information with the SEC. You can read and copy any information
filed by FPL with the SEC at the SEC's Public Reference Room at
450 Fifth Street, N.W., Washington, D.C. 20549. You can obtain
additional information about the Public Reference Room by calling
the SEC at 1-800-SEC-0330.
In addition, the SEC maintains an Internet site
(http://www.sec.gov) that contains reports, proxy and information
statements, and other information regarding issuers that file
electronically with the SEC, including FPL. FPL also maintains
an Internet site (http://www.fpl.com).
INCORPORATION BY REFERENCE
The SEC allows FPL to "incorporate by reference" the
information that FPL files with the SEC, which means that FPL may
disclose important information to you by referring you to those
documents in this prospectus. The information incorporated by
reference is an important part of this prospectus. FPL is
incorporating by reference the documents listed below and any
future filings FPL makes with the SEC under Section 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, until FPL
sells all of these First Mortgage Bonds. Any of those future
filings will update, supersede and replace the information
contained in any documents incorporated by reference in this
prospectus at the time of the future filings.
1. FPL's Annual Report on Form 10-K for the year ended
December 31, 1998 (Form 10-K).
2. FPL's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999.
3. FPL's Current Reports on Form 8-K filed with the SEC on
March 17, 1999 and April 16, 1999.
You may request a copy of these documents, at no cost to you,
by writing or calling Robert J. Reger, Jr., Esq., Thelen Reid &
Priest LLP, 40 West 57th Street, New York, New York, 10019, (212)
603-2000.
SAFE HARBOR STATEMENT UNDER
THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995
In connection with the safe harbor provisions of the Private
Securities Litigation Reform Act of 1995, FPL is hereby filing
cautionary statements identifying important factors that could
cause FPL's actual results to differ materially from those
projected in forward-looking statements (as that term is defined
in the Private Securities Litigation Reform Act of 1995) made by
or on behalf of FPL that are made in this prospectus or any
supplement to this prospectus, in presentations, in response to
questions or otherwise. Any statements that express, or involve
discussions as to, expectations, beliefs, plans, objectives,
assumptions or future events or performance (often, but not
always, through the use of words or phrases such as "will likely
result", "are expected to", "will continue", "is anticipated",
"estimated", "projection" or "outlook") are not statements of
historical facts and may be forward-looking. Forward-looking
statements involve estimates, assumptions and uncertainties that
could cause actual results to differ materially from those
expressed in the forward-looking statements. Accordingly, any of
those statements are qualified in their entirety by reference to,
and are accompanied by, the following important factors that
could cause FPL's actual results to differ materially from those
contained in forward-looking statements made by or on behalf of
FPL.
Any forward-looking statement speaks only as of the date on
which that statement is made, and FPL does not undertake any
obligation to update any forward-looking statement to reflect
events or circumstances after the date on which that statement is
made or to reflect the occurrence of unanticipated events. New
factors emerge from time to time, and it is not possible for
management to predict all of those factors, nor can it assess the
impact of each of those factors on the business or the extent to
which any factor, or combination of factors, may cause actual
results to differ materially from those contained in any
forward-looking statement.
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<PAGE>
Some important factors that could cause actual results or
outcomes to differ materially from those discussed in the
forward-looking statements include changing governmental policies
and regulatory actions, including those of the Federal Energy
Regulatory Commission, the Florida Public Service Commission and
the Nuclear Regulatory Commission, with respect to:
(1) allowed rates of return, including return on common
equity,
(2) industry and rate structure,
(3) operation of nuclear power facilities,
(4) acquisition and disposal of assets and facilities,
(5) operation and construction of plant facilities,
(6) recovery of fuel and purchased power costs,
(7) decommissioning costs, and
(8) present or prospective wholesale and retail
competition, including retail wheeling and transmission
costs.
The business and profitability of FPL are also influenced by
economic and geographic factors including:
(1) political and economic risks,
(2) changes in and compliance with environmental and safety
laws and policies,
(3) weather conditions, including natural disasters such as
hurricanes,
(4) population growth rates and demographic patterns,
(5) competition for retail and wholesale customers,
(6) pricing and transportation of commodities,
(7) market demand for energy from generating plants or
facilities,
(8) changes in tax rates or policies or in rates of
inflation,
(9) unanticipated delays or changes in costs for capital
projects,
(10) unanticipated changes in operating expenses and capital
expenditures,
(11) capital market conditions,
(12) competition for new energy development opportunities,
(13) legal and administrative proceedings, whether civil,
such as environmental, or criminal, and settlements, and
3
<PAGE>
(14) any unanticipated impact of the year 2000 computer
problem, including delays or changes in cost of year 2000
compliance, or the failure of major suppliers, customers and
others with whom FPL Group or FPL Group Capital does
business to resolve their own year 2000 issues on a timely
basis.
All of these factors are difficult to predict, contain
uncertainties which may materially affect actual results, and are
beyond FPL's control.
FPL
FPL was incorporated under the laws of Florida in 1925 and is
engaged in the generation, transmission, distribution and sale of
electric energy. FPL supplies electric service throughout most
of the east and lower west coasts of the State of Florida,
serving a population of approximately 7 million. During 1998,
FPL served approximately 3.7 million customer accounts. FPL
Group, Inc. (FPL Group) owns all of FPL's common stock.
USE OF PROCEEDS
Unless otherwise set forth in a prospectus supplement, FPL
will add the net proceeds from the sale of these First Mortgage
Bonds to its general funds. FPL uses its general funds for
corporate purposes, including to redeem or purchase outstanding
debt and preferred stock, to repay short-term borrowings, to
repay long-term debt obligations and to finance the acquisition
or construction of additional electric facilities. FPL will
temporarily invest any proceeds that are not immediately required
for these purposes in short-term instruments.
RATIO OF EARNINGS TO FIXED CHARGES
The following table shows FPL's ratio of earnings to fixed
charges for each of its last five fiscal years and for the three
months ended March 31, 1999:
Three Months Ended Years Ended December 31,
------------------------------------------
March 31, 1999 1998 1997 1996 1995 1994
-------------------- ------ ------ ------ ------ ------
4.54 5.69 4.95 4.58 4.33 3.86
DESCRIPTION OF THE BONDS
GENERAL. FPL will issue these First Mortgage Bonds, in one or
more series, under its Mortgage and Deed of Trust dated as of
January 1, 1944, with Bankers Trust Company, as Trustee, which
has been amended and supplemented in the past and which will be
supplemented again by one or more supplemental indentures
relating to these First Mortgage Bonds. This Mortgage and Deed
of Trust, as amended and supplemented, is referred to in this
prospectus as the "Mortgage." These First Mortgage Bonds are
referred to in this prospectus as the "Bonds."
This section briefly summarizes some of the provisions of the
Mortgage and uses some terms that are not defined in this
prospectus but that are defined in the Mortgage. This summary is
not complete. The Mortgage is on file with the SEC and is
incorporated by reference in this prospectus. You should read
the Mortgage for a complete understanding of the provisions that
may be important to you and for the definitions of some terms
used in this summary.
Each series of Bonds may have different terms. FPL will
include all of the following information about a specific series
of Bonds in the prospectus supplement relating to those Bonds:
(1) the designation and series of those Bonds,
(2) the aggregate principal amount of those Bonds,
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<PAGE>
(3) the offering price of those Bonds,
(4) the date(s) on which those Bonds will mature,
(5) the interest rate(s) for those Bonds, or how the
interest rate(s) will be determined,
(6) the dates on which FPL will pay the interest on those
Bonds,
(7) the denominations in which FPL may issue those Bonds,
if other than denominations of $1,000 or multiples of
$1,000,
(8) the place where the principal of and interest on those
Bonds will be payable, if other than at Bankers Trust
Company in New York City,
(9) the currency or currencies in which payment of the
principal of and interest on those Bonds may be made,
if other than United States dollars,
(10) the terms pursuant to which FPL may redeem or
repurchase any of those Bonds,
(11) whether all or a portion of those Bonds will be in
global form, and
(12) any other terms or provisions relating to those Bonds
that are not inconsistent with the provisions of the
Mortgage.
FPL will issue the Bonds in fully registered form without
coupons, unless otherwise stated in a prospectus supplement. A
holder of Bonds may exchange those Bonds, without charge, for an
equal aggregate principal amount of Bonds of the same series,
having the same issue date and with identical terms and
provisions, unless otherwise stated in a prospectus supplement.
A holder of Bonds may transfer those Bonds without cost to the
holder, other than for applicable stamp taxes or other
governmental charges, unless otherwise stated in a prospectus
supplement. FPL may issue all or some of the Bonds in "book-
entry" form, which means that they will be represented by global
notes, instead of certificates. If FPL issues global notes
representing any Bonds, then a depository selected by FPL will
keep a record of the beneficial interests in those global notes
and record any transfers of those beneficial interests. Any
additional requirements as to the form and method of exchange of
Bonds will be described in a prospectus supplement.
SPECIAL PROVISIONS FOR RETIREMENT OF BONDS. If, during any 12
month period, any governmental body orders FPL to dispose of
mortgaged property, or buys mortgaged property from FPL, and FPL
receives $10 million or more from the sale or disposition, then,
in most cases, FPL must use that money to redeem First Mortgage
Bonds. If this occurs, FPL may redeem First Mortgage Bonds of
any series that are redeemable at the redemption prices
applicable to those First Mortgage Bonds. If any Bonds are
redeemable, the redemption prices applicable to those Bonds will
be set forth in a prospectus supplement.
SECURITY. The Mortgage secures the Bonds as well as all other
First Mortgage Bonds already issued under the Mortgage and still
outstanding. FPL may issue more First Mortgage Bonds in the
future and those First Mortgage Bonds will also be secured by the
Mortgage. The Mortgage constitutes a first mortgage lien on all
of the properties and franchises that FPL owns, except as
discussed below.
The lien of the Mortgage is or may be subject to the
following:
(1) leases of minor portions of FPL's property to others
for uses that do not interfere with FPL's business,
(2) leases of certain property that is not used in FPL's
electric business, and
(3) Excepted Encumbrances, which include certain tax and
real estate liens, and specified rights, easements,
restrictions and other obligations,
5
<PAGE>
(4) vendors' liens, purchase money mortgages and liens on
property that already exist at the time FPL acquires
that property.
The Mortgage does not create a lien on the following "excepted
property":
(1) cash and securities,
(2) certain equipment, materials or supplies and fuel
(including nuclear fuel unless it is expressly
subjected to the lien of the Mortgage),
(3) automobiles and other vehicles,
(4) receivables, contracts, leases and operating
agreements,
(5) materials or products, including electric energy, that
FPL generates, produces or purchases for sale or use by
FPL, and
(6) timber, minerals, mineral rights and royalties.
The Mortgage will generally also create a lien on property
that FPL acquires after the date of this prospectus, other than
"excepted property". However, if FPL consolidates or merges
with, or sells substantially all of its assets to, another
corporation, the lien created by the Mortgage will generally not
cover the property of the successor company, other than the
property that it acquires from FPL and improvements, replacements
and additions to that property.
The Mortgage provides that the Trustee has a lien on the
mortgaged property for the payment of its reasonable compensation
and expenses and for indemnity against certain liabilities. This
lien takes priority over the lien securing the Bonds.
ISSUANCE OF ADDITIONAL BONDS. FPL may issue an unlimited
amount of First Mortgage Bonds under the Mortgage so long as it
meets the issuance tests set forth in the Mortgage, which are
generally described below. FPL may issue Bonds from time to time
in an amount equal to:
(1) 60% of unfunded Property Additions after adjustments to
offset retirements,
(2) the amount of retired First Mortgage Bonds or Qualified
Lien Bonds, and
(3) the amount of cash that FPL deposits with the Trustee
for the retirement of other First Mortgage Bonds or
Qualified Lien Bonds.
Property Additions generally include the following:
(1) plants, lines, pipes, mains, cables, machinery,
boilers, transmission lines, pipe lines, distribution
systems, service systems and supply systems,
(2) nuclear fuel that has been expressly subjected to the
lien of the Mortgage,
(3) railroad cars, barges and other transportation
equipment (other than trucks) for the transportation of
fuel, and
(4) other property, real or personal, and improvements,
extensions, additions, renewals or replacements located
within the United States of America or its coastal
waters.
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<PAGE>
FPL may use any property of the type described in (1) through
(4) above as Property Additions whether or not that property is
in operation and prior to obtaining permits or licenses relating
to that property. Securities, fuel (including nuclear fuel
unless expressly subjected to the lien of the Mortgage),
automobiles or other vehicles, or property used principally for
the production or gathering of natural gas will not qualify as
Property Additions. The Mortgage contains restrictions on the
issuance of First Mortgage Bonds based on Property Additions that
are subject to other liens and upon the increase of the amount of
those liens.
In most cases, FPL may not issue Bonds unless it meets the
"net earnings" test set forth in the Mortgage, which requires,
generally, that FPL's adjusted net earnings (before income taxes)
for 12 consecutive months out of the 15 months preceding the
issuance must have been either:
(1) at least twice the annual interest requirements on all
First Mortgage Bonds at the time outstanding, including
the Bonds that FPL proposes to issue at the time, and
all indebtedness of FPL that ranks prior or equal to
the First Mortgage Bonds, or
(2) at least 10% of the principal amount of all First
Mortgage Bonds at the time outstanding, including the
Bonds that FPL proposes to issue at the time, and all
indebtedness of FPL that ranks prior or equal to the
First Mortgage Bonds.
The Mortgage requires FPL to replace obsolete or worn out
property and specifies certain deductions to FPL's adjusted net
earnings for property repairs, retirement, additions and
maintenance. FPL does not need to meet the "net earnings" test
to issue Bonds if the issuance is based on retired First Mortgage
Bonds or Qualified Lien Bonds.
As of December 31, 1998, FPL could issue under the Mortgage
approximately $4.1 billion of additional First Mortgage Bonds
based on unfunded Property Additions and $4.0 billion of
additional First Mortgage Bonds based on retired First Mortgage
Bonds.
RELEASE AND SUBSTITUTION OF PROPERTY. FPL may release
property from the lien of the Mortgage if it does any of the
following in an aggregate amount equal to the fair value of the
property to be released:
(1) deposits with the Trustee, cash or, to a limited
extent, purchase money mortgages,
(2) uses unfunded Property Additions acquired by FPL in the
last five years, or
(3) waives its right to issue First Mortgage Bonds without
satisfying any net earnings requirement.
If FPL deposits cash so that it may release property from the
lien of the Mortgage or so that it may issue additional First
Mortgage Bonds, it may withdraw that cash if it uses unfunded
Property Additions or waives its right to issue First Mortgage
Bonds without satisfying any net earnings requirement in an
amount equal to the cash that FPL seeks to withdraw.
When property released from the lien of the Mortgage is not
Funded Property, then, if FPL acquires new Property Additions
within two years:
(1) Property Additions used for the release of that property
will not (subject to some exceptions) be considered
Funded Property, and
(2) any waiver by FPL of its right to issue First Mortgage
Bonds, which is used for the release of that property,
will cease to be an effective waiver and FPL will regain
the right to issue those First Mortgage Bonds.
The Mortgage contains provisions relating to cash proceeds of
property that is not Funded Property that are similar to the
provisions relating to release of that property. The Mortgage
contains special provisions relating to pledged Qualified Lien
Bonds and the disposition of money received on those Qualified
Lien Bonds.
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FPL does not need a release from the Mortgage in order to use
its nuclear fuel even if that nuclear fuel has been expressly
subjected to the lien and operation of the Mortgage.
DIVIDEND RESTRICTIONS. In some cases, the Mortgage restricts
the amount of retained earnings that FPL can use to pay cash
dividends on its common stock. The restricted amount may change
depending on factors set out in the Mortgage. Other than this
restriction on the payment of common stock dividends, the
Mortgage does not restrict FPL's use of retained earnings. As of
December 31, 1998, no retained earnings were restricted by these
provisions of the Mortgage.
MODIFICATION OF THE MORTGAGE. Generally the rights of all of
the holders of First Mortgage Bonds may be modified with the
consent of the holders of 66-2/3% of the principal amount of all
of the outstanding First Mortgage Bonds. However, if less than
all series of First Mortgage Bonds are affected by a
modification, that modification also requires the consent of the
holders of 66-2/3% of the principal amount of all of the
outstanding First Mortgage Bonds of each series affected.
FPL may amend the Mortgage without the consent of the holders
of any series of First Mortgage Bonds created after April 30,
1992 (including the Bonds) to permit modification of the Mortgage
generally with the consent of the holders of only a majority of
the First Mortgage Bonds affected by the modification.
In most cases, the following modifications will not be
effective against any holder of First Mortgage Bonds unless that
holder consents:
(1) modification of the terms of payment of principal and
interest,
(2) modification of the obligations of FPL under Section 64
of the Mortgage, which describes special provisions for
the retirement of First Mortgage Bonds (until FPL
amends the Mortgage as described in the preceding
paragraph),
(3) modification creating an equal or prior lien on the
mortgaged property or depriving that holder of the
benefit of the lien of the Mortgage.
(4) modification reducing the percentage vote required for
modification.
DEFAULT AND NOTICE THEREOF. The following are defaults under
the Mortgage:
(1) failure to pay the principal of any First Mortgage
Bond,
(2) failure to pay interest on any First Mortgage Bond for
60 days after that interest is due,
(3) failure to pay principal of or interest on any
Qualified Lien Bond beyond any applicable grace period
for the payment of that principal or interest,
(4) failure to pay any installments of funds for retirement
of First Mortgage Bonds for 60 days after that
installment is due,
(5) certain events in bankruptcy, insolvency or
reorganization, and
(6) the expiration of 90 days following notice by the
Trustee or the holders of 15% of the First Mortgage
Bonds relating to other covenants of FPL.
Except in the case of failure to pay principal, interest or
any installment for retirement of First Mortgage Bonds, the
Trustee may withhold notice of default if it believes that
withholding the notice is in the interests of the holders of
First Mortgage Bonds.
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Holders of 25% of the First Mortgage Bonds may declare the
principal and the interest due on default. A majority of the
holders of First Mortgage Bonds may annul that declaration if the
default has been cured. No holder of First Mortgage Bonds may
enforce the lien of the Mortgage unless the following things have
occurred:
(1) the holder has given the Trustee written notice of a
default,
(2) the holders of 25% of the First Mortgage Bonds have
requested the Trustee to act and offered it reasonable
opportunity to act and indemnity satisfactory to the
Trustee for the costs, expenses and liabilities that
the Trustee may incur by acting, and
(3) the Trustee has failed to act.
Notwithstanding the foregoing, a holder of First Mortgage
Bonds has the right to sue FPL if FPL fails to pay, when due,
interest or principal on those First Mortgage Bonds, unless that
holder gives up that right.
The 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. The holders of a
majority of the First Mortgage Bonds may direct the time, method,
and place of conducting any proceedings for any remedy available
to the Trustee, or exercising any of the Trustee's powers.
SATISFACTION AND DISCHARGE OF MORTGAGE. The Mortgage may be
satisfied and discharged if and when FPL provides for the payment
of all of the First Mortgage Bonds and all other sums due under
the Mortgage.
EVIDENCE TO BE FURNISHED TO THE TRUSTEE. FPL furnishes
written statements of FPL's officers, or persons selected or paid
by FPL, annually (and when certain events occur) to the Trustee
to show that FPL is in compliance with Mortgage provisions and
that there are no defaults under the Mortgage. In some cases,
these written statements must be provided by an independent
accountant, appraiser, engineer or counsel.
CONCERNING THE 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 Bonds (1) through underwriters or dealers,
(2) through agents, or (3) directly to a limited number of
purchasers or to a single purchaser.
THROUGH UNDERWRITERS OR DEALERS. If FPL uses underwriters in
the sale, the underwriters will acquire the Bonds for their own
account. The underwriters may resell the Bonds 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 underwriters may sell the Bonds directly or
through underwriting syndicates represented by managing
underwriters. Unless otherwise set forth in a prospectus
supplement relating to Bonds, the obligations of the underwriters
to purchase those Bonds will be subject to certain conditions,
and the underwriters will be obligated to purchase all of those
Bonds if any are purchased. If FPL uses a dealer in the sale,
FPL will sell Bonds to the dealer as principal. The dealer may
then resell those Bonds at varying prices determined at the time
of resale.
Any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be
changed from time to time.
THROUGH AGENTS. FPL may designate one or more agents to sell
the Bonds. Unless otherwise stated in a prospectus supplement,
any agent will agree to use its best efforts to solicit purchases
for the period of its appointment.
DIRECTLY. FPL may sell the Bonds directly to one or more
purchasers. In this case, no underwriters or agents would be
involved.
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GENERAL INFORMATION. A prospectus supplement will state the
name of any underwriter, dealer or agent and the amount of any
compensation, underwriting discounts or concessions paid, allowed
or reallowed to them. A prospectus supplement will also state
the proceeds to FPL from the sale of Bonds, any initial public
offering price and other terms of the offering of those Bonds.
FPL may authorize agents, underwriters or dealers to solicit
offers by certain institutions to purchase Bonds from FPL at the
public offering price and on the terms described in the related
prospectus supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the
future.
FPL may have agreements to indemnify agents, underwriters and
dealers against certain civil liabilities, including liabilities
under the Securities Act of 1933.
EXPERTS
The audited consolidated financial statements of FPL and its
subsidiaries appearing in FPL's Annual Report on Form 10-K
incorporated herein by reference 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
in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
Legal conclusions and opinions specifically attributed to
counsel in the documents incorporated by reference in this
prospectus have been reviewed by Steel Hector & Davis LLP, West
Palm Beach, Florida, counsel to FPL, and are set forth on the
authority of that firm as experts.
LEGAL OPINIONS
The legality of the Bonds will be passed upon for FPL by Steel
Hector & Davis LLP, West Palm Beach, Florida, and Thelen 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. Thelen 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
Thelen Reid & Priest LLP.
--------------------------------------
YOU SHOULD RELY ONLY ON THE INFORMATION INCORPORATED BY
REFERENCE OR PROVIDED IN THIS PROSPECTUS OR ANY SUPPLEMENT. FPL
HAS NOT AUTHORIZED ANYONE ELSE TO PROVIDE YOU WITH DIFFERENT
INFORMATION. FPL IS NOT MAKING AN OFFER OF THESE BONDS IN ANY
STATE WHERE THE OFFER IS NOT PERMITTED. YOU SHOULD NOT ASSUME
THAT THE INFORMATION IN THIS PROSPECTUS OR ANY SUPPLEMENT IS
ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE FRONT OF THOSE
DOCUMENTS.
10
<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 . . . . $ 118,150
Legal and Accounting Fees . . . . . . . . . . $ 125,000*
Printing (S-3, prospectus, prospectus
supplement, etc.) . . . . . . . . . . . . . $ 15,000*
Fee of Trustee . . . . . . . . . . . . . . . . $ 10,000*
Florida Taxes . . . . . . . . . . . . . . . . $ 1,608,500
Rating Agencies' Fees . . . . . . . . . . . . $ 75,000*
Miscellaneous . . . . . . . . . . . . . . . . $ 15,000*
----------
Total . . . . . . . . . . . . . . . . . . . $ 1,966,650*
===========
--------------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 607.0850 of the Florida Statutes generally permits
Florida Power & Light Company (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, including any appeal
thereof, 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 (unlawful
distributions to shareholders) 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 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)
II-1
<PAGE>
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 of 1933.
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-nine Supplements thereto, between FPL and
Bankers Trust Company, Trustee (the "Mortgage") (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; Exhibit 4(a) to Form 10-Q for the quarter ended
II-2
<PAGE>
March 31, 1996, File No. 1-3545; Exhibit 4 to Form 10-Q
for the quarter ended June 30, 1998, File No. 1-3545
and Exhibit 4 to Form 10-Q for the quarter ended March
31, 1999, File No. 1-3545).
4(i) - Form of Supplemental Indenture relating to First
Mortgage Bonds.
5(a) - Opinion of Steel Hector & Davis LLP, counsel to FPL.
5(b) - Opinion of Thelen 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, 1998, File No. 1-3545 and as Exhibit
12(b) to Form 10-Q for the quarter ended March 31,
1999, 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 Thelen 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 of 1933;
(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 Securities Exchange Act of
1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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 of 1933, each filing of the registrant's Annual
Report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
provisions described under Item 15 above, or otherwise, the
registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
II-3
<PAGE>
indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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 28th of
July, 1999.
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
----------------------
James L. Broadhead Principal Executive
(Chairman of the Board Officer and Director July 28, 1999
and Chief Executive
Officer)
/s/ K. Michael Davis
----------------------
K. Michael Davis Principal Financial
(Vice President, and Accounting
Accounting, Officer July 28, 1999
Controller and Chief
Accounting Officer)
/s/ Dennis P. Coyle
---------------------- Director July 28, 1999
Dennis P. Coyle
/s/ Lawrence J.
Kelleher
---------------------- Director July 28, 1999
Lawrence J. Kelleher
/s/ Armando J. Olivera
----------------------
Director July 28, 1999
Armando J. Olivera
/s/ Thomas F. Plunkett
---------------------- Director July 28, 1999
Thomas F. Plunkett
/s/ Antonio Rodriguez
----------------------
Director July 28, 1999
Antonio Rodriquez
/s/ Roger Young
---------------------- Director July 28, 1999
Roger Young
II-5
<PAGE>
EXHIBIT INDEX
1(a) - Form of Underwriting Agreement.
1(b) - Form of Distribution Agreement.
4(i) - Form of Supplemental Indenture relating to First
Mortgage Bonds.
5(a) - Opinion of Steel Hector & Davis LLP, counsel to
FPL.
5(b) - Opinion of Thelen Reid & Priest LLP, co-counsel to
FPL.
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 Thelen 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.
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. 333-53053"),
for the registration of $210,000,000 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 $ of its First Mortgage Bonds, which
----------
registration statement has been declared effective by the
Commission. All but $ principal amount of First Mortgage
--------
Bonds registered with the Commission under the Securities Act
pursuant to registration statement No. 333-53053, 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. 333-53053, 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 or affected by bankruptcy, insolvency, reorganization,
receivership, moratorium or other laws affecting mortgagees' and
other creditors' rights generally and general principles of
equity.
(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
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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 Thelen 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:
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(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 $7,500, 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
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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 or affected by bankruptcy, insolvency, reorganization,
receivership, moratorium or other laws affecting mortgagees' and
other creditors' rights and remedies generally and general
principles of equity;
(iv) the Bonds are valid and binding obligations of
FPL in accordance with their terms, except as limited or affected
by bankruptcy, insolvency, reorganization, receivership,
moratorium or other laws affecting mortgagees' and other
creditors' rights and remedies generally and general principles
of equity, 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 orders 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 "Description
of 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 or
affected by bankruptcy, insolvency, reorganization, receivership,
moratorium or other laws affecting mortgagees' and other
creditors' rights generally and general principles of equity.
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
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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 Thelen 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 Thelen 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 or additional paid-in capital,
increase in the 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, increases 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 $5,000.
SECTION 7. Conditions of FPL's Obligations. The
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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 $5,000.
SECTION 8. Indemnification.
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(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
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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 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. 333-53053"), for the registration of
$210,000,000 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. It
also filed with the Commission a registration statement on Form S-3,
including a prospectus ("registration statement No. _________") for the
registration of $__________ of its First Mortgage Bonds, which registration
statement has been declared effective by the Commission. All but
$___________ principal amount of First Mortgage Bonds registered with the
Commission under the Securities Act pursuant to registration statement No.
333-53053, 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 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. 333-53053, 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 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. 333-53053 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. 33-53053 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 or
affected by bankruptcy, insolvency, reorganization, receivership,
moratorium or other laws affecting mortgagees' and other creditors' rights
generally and general principles of equity.
(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 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 a validly organized and existing corporation and is in good
standing under the laws of the State of Florida, 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 or affected by
bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws affecting mortgagees' and other creditors' rights generally
and general principles of equity;
(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 or affected by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws affecting
mortgagees' and other creditors' rights generally and general
principles of equity, 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 "Description of the 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 or affected by bankruptcy,
insolvency, reorganization, receivership, moratorium or other laws
affecting mortgagees' and other creditors' rights generally and
general principles of equity. 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 Thelen 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
Thelen 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 Thelen 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 represents and
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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 Thelen 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 Thelen Reid & Priest LLP, 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 Section 9 hereof and
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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 or (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
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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.
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
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<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
$200,000,000. If one or more Securities having an aggregate principal amount in
excess of $200,000,000 would, but for the preceding sentence, be represented by
a single Global Security, then one Global Security will be issued to represent
each $200,000,000 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 $200,000,000 in aggregate principal amount,
one Global Security will be authenticated and issued to represent each
$200,000,000 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:
EXHIBIT 4(I)
This instrument was prepared by:
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
eing 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
<PAGE>
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
<PAGE>
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
<PAGE>
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
- ------------------------------
** 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>
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 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,
<PAGE>
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 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
- --------------------------
*** These or other redemption provisions or other terms and conditions
relating to the series of First Mortgage Bonds may be inserted here.
**** 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>
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 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
- ---------------------
***** THESE OR OTHER REDEMPTION PROVISIONS OR OTHER TERMS AND CONDITIONS
RELATING TO THE SERIES OF FIRST MORTGAGE BONDS MAY BE INSERTED HERE.
<PAGE>
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.]
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 agrees to perform the same upon the terms
and
- ---------------------
****** 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>
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 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 )
COUNTY OF PALM BEACH ) SS.:
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 )
COUNTY OF NEW YORK ) SS.:
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 ______________________
EXHIBIT 5(A)
July 29, 1999
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 the
Securities Act of 1933, as amended, on or about the date hereof
(the "Registration Statement") in connection with the proposed
offering of $500,000,000 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 as contemplated in the Registration Statement,
will be valid, legal and binding obligations of the Company,
except as such may later be limited or affected by bankruptcy,
insolvency, reorganization, receivership, moratorium or other
laws affecting mortgagees' and other creditors' rights generally
and general principles of equity.
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 Opinions".
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 Thelen Reid & Priest LLP, New York, New York. As to all
matters of Florida law, Thelen 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
EXHIBIT 5(B)
New York, New York
July 29, 1999
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 the
Securities Act of 1933, as amended, on or about the date hereof
(the "Registration Statement") in connection with the proposed
offering of $500,000,000 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 be limited or affected by
bankruptcy, insolvency, reorganization, receivership, moratorium
or other laws affecting mortgagees' and other creditors' rights
generally and general principles of equity.
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 LLP, West Palm Beach,
Florida. As to all matters of New York law, Steel Hector & Davis
LLP is authorized to rely upon this opinion as if it were
addressed to it.
Very truly yours,
/s/ Thelen Reid & Priest LLP
THELEN 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 12, 1999, appearing in Florida
Power & Light Company's Annual Report on Form 10-K for the year
ended December 31, 1998 and to the reference to us under the
heading "Experts" in the Prospectus, which is part of this
Registration Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Miami, Florida
July 28, 1999
- -----------------------------------------------------------------------------
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 Registrant as
specified in its Charter)
FLORIDA 59-0247775
(State or other jurisdiction of (I.R.S. employer identification no.)
Incorporation or organization)
700 UNIVERSE BOOULEVARD
JUNO BEACH, FLORIDA 33408
(561) 694-4000
(Address, including zip code, and telephone number of
Registrants principal executive offices)
FIRST MORTGAGE BONDS
(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.
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 March 31, 1999. Copy attached.
EXHIBIT 8 - Not Applicable.
EXHIBIT 9 - Not Applicable.
<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 this 28th day
of July, 1999
BANKERS TRUST COMPANY
By: /s/ William T. Jenkins
----------------------------
William T Jenkins
Assistant Vice President
<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 this 28th day
of July, 1999.
BANKERS TRUST COMPANY
By: /s/ William T. Jenkins
----------------------------
William T Jenkins
Assistant Vice President
<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 ByLaws
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, William T Jenkins, Assistant Vice President 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/ William T. Jenkins
-----------------------------------
William T Jenkins
Assistant Vice President
DATED: July 28, 1999
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 03/31/99 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: 0 0 6 2 3
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR MARCH 31, 1999
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
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
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 1,695,000 1.a.
b. Interest-bearing balances (2) ........................................... 0071 1,308,000 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 6,150,000 2.b.
3. Federal funds sold and securities purchased under agreements to resell.......... 1350 29,512,000 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 18,869,000 4.a.
b. LESS: Allowance for loan and lease losses...................... RCFD 3123 571,000 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 18,298,000 4.d.
5. Trading Assets (from schedule RC-D) ............................................. 3545 34,815,000 5.
6. Premises and fixed assets (including capitalized leases) ......................... 2145 916,000 6.
7. Other real estate owned (from Schedule RC-M) ..................................... 2150 88,000 7.
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M) 2130 883,000 8.
9. Customers' liability to this bank on acceptances outstanding ..................... 2155 307,000 9.
10. Intangible assets (from Schedule RC-M) ........................................... 2143 302,000 10.
11. Other assets (from Schedule RC-F) ................................................ 2160 4,645,000 11.
12. Total assets (sum of items 1 through 11) ......................................... 2170 98,919,000 12.
</TABLE>
- --------------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 03/31/99 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: 0 0 6 2 3
</TABLE>
SCHEDULE RC--CONTINUED
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
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 17,829,000 13.a.
(1) Noninterest-bearing(1) ............................ RCON 6631 2,939,000 13.a.(1)
(2) Interest-bearing .................................. ..... RCON 6636 14,890,000 13.a.(2)
b. In foreign offices, Edge and Agreement
subsidiaries, and IBFs (from Schedule RC-E
part II) RCFN 2200 20,634,000 13.b.
(1) Noninterest-bearing ................................. RCFN 6631 1,878,000 13.b.(1)
(2) Interest-bearing ....................................... RCFN 6636 18,756,000 13.b.(2)
14. Federal funds purchased and securities sold under
agreements to repurchase RCFD 2800 13,513,000 14.a.
15. a. Demand notes issued to the U.S. Treasury ................... RCON 2840 0 14.b.
b. Trading liabilities (from Schedule RC-D)................. RCFD 3548 22,010,000 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 6,400,000 16.a.
b. With a remaining maturity of more than one year
through three years.... A547 2,347,000 16.b.
c. With a remaining maturity of more than three years.................A548 2,321,000 16.c
17. Not Applicable. 17.
18. Bank's liability on acceptances executed and outstanding ................RCFD 2920 307,000 18.
19. Subordinated notes and debentures (2)....................................RCFD 3200 438,000 19.
20. Other liabilities (from Schedule RC-G) ................................. RCFD 2930 6,129,000 20.
21. Total liabilities (sum of items 13 through 20) ......................... RCFD 2948 91,928,000 21.
22. Not Applicable
22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ......................... RCFD 383 1,500,000 23.
24. Common stock ............................................................RCFD 3230 2,127,000 24.
25. Surplus (exclude all surplus related to preferred stock) ................RCFD 3839 541,000 25.
26. a. Undivided profits and capital reserves .............................RCFD 3632 3,291,000 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities .................................................... RCFD 8434 ( 59,000) 26.b.
c. Accumulated net gains (losses) on cash flow hedges............... RCFD 4336 0 26.c.
27. Cumulative foreign currency translation adjustments .....................RCFD 3284 (409,000) 27.
28. Total equity capital (sum of items 23 through 27) .......................RCFD 3210 6,991,000 28.
29. Total liabilities and equity capital (sum of items 21 and 28)........... RCFD 3300 98,919,000 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 work performed for the bank by independent external Number
auditors as of any date during 1998 ....................... RCFD 6724 1 M.1
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a
certified public accounting firm which submits a report on the
consolidated holding company (but not on the bank separately)
3 = Directors' examination of the bank conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ----------------------
(1) Including total demand deposits and noninterest-bearing time and savings
deposits. (2) Includes limited-life preferred stock and related surplus.
