EXHIBIT 1(a)
FLORIDA POWER & LIGHT COMPANY
FIRST MORTGAGE BONDS
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UNDERWRITING AGREEMENT
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[Date]
To the Representatives named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
1. Introductory. Florida Power & Light Company, a Florida corporation
("FPL"), proposes to issue and sell its First Mortgage Bonds of the series
designation[s], with the terms and in the principal amount[s] specified in
Schedule I hereto (the "Bonds"). FPL hereby confirms its agreement with the
several Underwriters (as defined below) as set forth herein.
The term "Underwriters" as used herein shall be deemed to mean the
entity or several entities named in Schedule II hereto and any underwriter
substituted as provided in Section 5 hereof and the term "Underwriter" shall be
deemed to mean one of such Underwriters. If the entity or entities listed in
Schedule I hereto (the "Representatives") are the same as the entity or entities
listed in Schedule II hereto, then the terms "Underwriters" and
"Representatives," as used herein, shall each be deemed to refer to such entity
or entities. The Representatives represent that they have been authorized by
each Underwriter to 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 entity is named in
Schedule I hereto, any action under or in respect of this agreement may be taken
by such entities jointly as the Representatives or by one of the entities acting
on behalf of the Representatives and such action will be binding upon all the
Underwriters.
2. Description of the Bonds. The Bonds [of each series] 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 Deutsche Bank Trust
Company Americas (formerly known as 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."
3. Representations and Warranties of FPL. FPL represents and warrants
to the several Underwriters that:
(a) FPL has, together with Florida Power & Light Company Trust I,
a Delaware statutory trust ("Florida Power & Light Company Trust I")
and Florida Power & Light Company Trust II, a Delaware statutory trust
("Florida Power & Light Company Trust II," and together with Florida
Power & Light Company Trust I, the "Trusts"), filed with the
Securities and Exchange Commission (the "Commission") a joint
registration statement on Form S-3, including a prospectus
("Registration Statement Nos. 333-________, 333-______-01 and
333-_______-02"), for the registration under the Securities Act of
1933, as amended (the "Securities Act"), of (a) $1,000,000,000
aggregate amount of (i) First Mortgage Bonds, (ii) shares of FPL's
serial Preferred Stock, $100 par value ("Serial Preferred Stock") and
shares of FPL's Preferred Stock without par value ("No Par Preferred
Stock," and together with the Serial Preferred Stock, "Preferred
Stock"), (iii) FPL subordinated debentures ("FPL Subordinated
Debentures"), and (iv) preferred trust securities of the Trusts
("Preferred Trust Securities"), and (b) FPL's guarantee of the
Preferred Trust Securities (the "Trust Guarantee"). [None]
[$__________] of the $1,000,000,000 aggregate amount of securities
registered with the Commission under the Securities Act pursuant to
Registration Statement Nos. 333-________, 333-______-01 and
333-_______-02 [has] [have] been previously issued. Such registration
statement has been declared effective by the Commission and no stop
order suspending such effectiveness has been issued under the
Securities Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of FPL, threatened by
the Commission. References herein to the term "Registration Statement"
as of any given date shall mean Registration Statement Nos.
333-________, 333-______-01 and 333-_______-02, 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"); provided that if FPL files a joint
registration statement with the Trusts with the Commission pursuant to
Rule 462(b) under the Securities Act (the "Rule 462(b) Registration
Statement"), then after such filing, all references to "Registration
Statement" shall be deemed to include the Rule 462(b) Registration
Statement. References herein to the term "Prospectus" as of any given
date shall mean the prospectus forming a part of Registration
Statement Nos. 333-________, 333-______-01 and 333-_______-02, as
supplemented by a prospectus supplement relating to the Bonds proposed
to be filed pursuant to Rule 424 of the general rules and regulations
of the Securities Act ("Rule 424"), and as further amended or
supplemented as of such date (other than amendments or supplements
relating to (i) securities other than the Bonds or (ii) 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 Nos. 333-________, 333-______-01 and
333-_______-02 was declared effective and the time and date of the
filing thereafter of FPL's most recent Annual Report on Form 10-K, if
such filing is made prior to the Closing Date (as hereinafter
defined). The prospectus supplement relating to the Bonds proposed to
be filed pursuant to Rule 424 shall be substantially in the form
delivered to the Representatives prior to the execution of this
agreement. Prior to the termination of the offering of the Bonds, FPL
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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 Hunton & ▇▇▇▇▇▇▇▇ LLP, who are acting as
counsel for 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. Each of the Underwriters acknowledges
that subsequent to the Closing Date, FPL may file a post-effective
amendment to the Registration Statement in order to file one or more
unqualified opinions of counsel pursuant to Rule 462(d) under the
Securities Act.
(b) The Registration Statement at the Effective Date fully
complied, and the Prospectus, both on the date it is filed with the
Commission pursuant to Rule 424 (such date, the "424 Date") and at the
Closing Date, 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"), respectively, and, in each
case, the applicable instructions, rules and regulations of the
Commission thereunder; the Registration Statement, at the Effective
Date, 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, both on 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; 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 Underwriter through the Representatives expressly 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 on Form T-1, or amendments thereto, filed as
exhibits to the Registration Statement or incorporated into the
Registration Statement (collectively, the "Statements of
Eligibility") or to any statements or omissions made in the
Registration Statement or the Prospectus relating to The Depository
Trust Company ("DTC") Book-Entry-Only System that are based solely on
information contained in published reports of DTC.
(c) The financial statements included as part of or incorporated
by reference in the Registration Statement present fairly the
consolidated financial condition and results of operations of FPL and
its subsidiaries taken as a whole 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 of FPL, 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
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Prospectus, there has not been any material adverse change in the
business, properties or financial condition of FPL and its
subsidiaries taken as a whole, whether or not in the ordinary course
of business, nor has any transaction been entered into by FPL or any
of its subsidiaries that is material to FPL and its subsidiaries taken
as a whole, other than changes and transactions contemplated by the
Registration Statement and Prospectus, and transactions in the
ordinary course of business. FPL and its subsidiaries have no
contingent obligation material to FPL and its subsidiaries taken as a
whole, which is not disclosed in or contemplated by the Registration
Statement and Prospectus.
(e) The execution and delivery of this agreement and the
consummation of the transactions herein contemplated by FPL 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 valid and binding obligations of FPL enforceable against
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.
(f) The execution and delivery of this agreement and the
consummation of the transactions herein contemplated by FPL 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 or any of its subsidiaries
is now a party, or violate any law or any order, rule, decree or
regulation applicable to FPL or any of its subsidiaries of any federal
or state court, regulatory board or body or administrative agency
having jurisdiction over FPL or its subsidiaries or any of their
respective property, except where such breach, default or violation
would not have a material adverse effect on the business, properties
or financial condition of FPL and its subsidiaries taken as a whole.
(g) FPL has no direct or indirect significant subsidiaries (as
defined in Regulation S-X (17 CFR Part 210)).
(h) FPL has been duly organized, is validly existing and is in
good standing under the laws of its respective jurisdiction of
organization, and is duly qualified to do business and is in good
standing as a foreign corporation or other entity in each jurisdiction
in which its respective ownership of properties or the conduct of its
respective businesses requires such qualification, except where the
failure so to qualify would not have a material adverse effect on the
business, properties or financial condition of FPL, and has the power
and authority as a corporation or other entity necessary to own or
hold its respective properties and to conduct the businesses in which
it is engaged.
(i) All the property to be subjected to the lien of the Mortgage
will be adequately described therein.
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(j) FPL is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended ("1940 Act").
4. Purchase and Sale. On the basis of the representations and
warranties herein contained, and subject to the terms and conditions in this
agreement, FPL agrees to sell to the respective Underwriters named in Schedule
II hereto, severally and not jointly, and the respective Underwriters agree,
severally and not jointly, to purchase from FPL, the respective principal
amounts of the Bonds set forth opposite their respective names in Schedule II
hereto at the purchase price for those Bonds set forth in Schedule I hereto as
the Purchase Price.
The Underwriters agree 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. The Underwriters have advised FPL that the
Bonds will be offered to the public at the amount per Bond as set forth in
Schedule I hereto as the Price to Public and to certain dealers selected by the
Representatives at a price which represents a concession not in excess of the
percentage of the principal amount per Bond under the Price to Public as set
forth in Schedule I hereto as the Dealers' Concession.
5. Time, Date and Place of Closing, Default of Underwriter. Delivery of
the Bonds [of each series] and payment therefor by wire transfer in federal
funds shall be made at the time, date and place set forth in Schedule I hereto,
or at such other time, date or place as may be agreed upon in writing by FPL and
the Representatives. The time 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 against payment by the several Underwriters through
the Representatives of the purchase price therefor. Delivery of the Bonds shall
be made through the facilities of DTC unless FPL and the Representatives shall
otherwise agree. 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 offices of ▇▇▇▇▇▇ ▇▇▇▇
& Priest LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, not later than 2:00
P.M., New York City time, on the business day preceding the Closing Date, or at
such other time, date or 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 [of any series] 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 purchase and pay for (in
addition to the respective principal amount of the Bonds set forth opposite
their respective names in Schedule II hereto) the principal amount of the Bonds
[of each series] which such defaulting Underwriter or Underwriters failed to
purchase and pay for, up to a principal amount thereof equal to, in the case of
each such remaining Underwriter, ten percent (10%) of the aggregate principal
amount of the Bonds [of each series] as to which there is a default and which
are set forth opposite the name of such remaining Underwriter in said Schedule
II, and such remaining Underwriters shall have the right, within 24 hours of
receipt of such notice, either to (i) purchase and pay for (in such proportion
as may be agreed upon among them) the remaining principal amount of the Bonds
[of each series] which the defaulting Underwriter or Underwriters agreed but
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failed to purchase, or (ii) substitute another Underwriter or Underwriters,
satisfactory to FPL, to purchase and pay for the remaining principal amount of
the Bonds [of each series] which the defaulting Underwriter or Underwriters
agreed but failed to purchase. If any of the Bonds would still remain
unpurchased, 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 herein set forth. In the
event that, within the respective prescribed periods, (i) the non-defaulting
Underwriters notify FPL that they have arranged for the purchase of such Bonds
or (ii) 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, 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 4 hereof), except as otherwise provided in Section 9 and
subsections (c) and (e) of Section 6 hereof.
6. Covenants of FPL. FPL agrees with the several Underwriters that:
(a) FPL will promptly file the Prospectus with the Commission
pursuant to Rule 424 under the Securities Act.
(b) FPL 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 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. As soon as
practicable after the date of this agreement, FPL will deliver to the
Underwriters through the Representatives as many copies of the
Prospectus as the Representatives may reasonably request for the
purposes contemplated by the Securities Act.
(c) FPL will pay or cause to be paid all expenses in connection
with the (i) preparation and filing of the Registration Statement and
Prospectus, (ii) issuance and delivery of the Bonds as provided in
Section 5 hereof, (iii) preparation, execution, filing and recording
of the Supplemental Indenture and (iv) printing and delivery to the
Representatives for the account of the Underwriters, in reasonable
quantities, of copies of the Registration Statement, the Prospectus
and the Supplemental Indenture. FPL will pay or cause to be paid all
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taxes, if any (but not including any transfer taxes), on the issuance
of the Bonds and 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 that if this
agreement shall be terminated in accordance with the provisions of
Sections 7, 8 or 10 hereof, FPL will pay or cause to be paid the fees
and disbursements of Counsel for the Underwriters, whose fees and
disbursements the Underwriters agree to pay in any other event, and
FPL shall reimburse the Underwriters for out-of-pocket expenses,
reasonably incurred by them in connection with the transaction
contemplated by this agreement, not in excess, however, of an
aggregate of $5,000 for such out-of-pocket expenses. 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 shall occur
which, in the opinion of FPL, 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 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 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 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) FPL 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 or cause to be paid filing
fees and expenses (including fees of counsel not to exceed $5,000 and
reasonable disbursements of counsel), 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) FPL will timely file such reports pursuant to the Exchange
Act as are necessary in order to make generally available to its
security holders (including holders of the Bonds) 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) for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the Securities Act.
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(g) FPL will advise the Representatives promptly of the filing of
the Prospectus pursuant to Rule 424 and of any amendment or supplement
to the Prospectus or Registration Statement or, prior to the
termination of the offering of the Bonds hereunder, of official notice
of the institution of proceedings for, or the entry of, a stop order
suspending the effectiveness of the Registration Statement and, if
such a stop order should be entered, use every commercially reasonable
effort to obtain the prompt removal thereof.
(h) On or before the Closing Date, FPL 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 which is subject to the lien of the
Mortgage is located.
7. Conditions of Underwriters' Obligations to Purchase and Pay for the
Bonds. The several obligations of the Underwriters to purchase and pay for the
Bonds shall be subject 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) The representations and warranties made by FPL herein shall
be true and correct in all material respects as of the Closing Date as
if made on and as of such date and the Representatives shall have
received, prior to payment for the Bonds, a certificate from FPL dated
the Closing Date and signed by an officer of FPL to that effect.
(b) 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 Incorporated
Document shall be in effect on the Closing Date; 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 from FPL dated the
Closing Date and signed by an officer of FPL to the effect that, to
the best of his or her knowledge, no such order is in effect and no
proceedings for either such purpose are pending before, or to the
knowledge of FPL threatened by, the Commission.
(c) 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.
(d) On the Closing Date, the Representatives shall have received
from Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to FPL, ▇▇▇▇▇▇ ▇▇▇▇ & Priest
LLP, co-counsel to FPL, and Hunton & ▇▇▇▇▇▇▇▇ LLP, Counsel for the
Underwriters, opinions (with a copy for each of the Underwriters) in
substantially the form and substance prescribed in Schedules III, IV
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and V hereto (i) with such changes therein as may be agreed upon by
FPL and the Representatives, with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus relating to the Bonds shall
be supplemented or amended after the Prospectus shall have been filed
with the Commission pursuant to Rule 424, with any changes therein
necessary to reflect such supplementation or amendment.
(e) 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 performing a review of interim financial information
as described in Statement on Auditing Standards No. 71, Interim
Financial Information, and in Statement on Auditing Standards No. 100,
Interim Financial Information, on the unaudited condensed consolidated
financial statements of FPL, if any, incorporated by reference in the
Prospectus, a reading of the latest available interim unaudited
condensed 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 sole
common 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 makes 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, if any,
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 FPL's common shareholders' equity, 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 [condensed] 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
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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.
(f) Since the respective most recent dates as of which
information is given in the Registration Statement and Prospectus, and
up to the Closing Date, (i) there shall have been no material adverse
change in the business, properties or financial condition of FPL and
its subsidiaries taken as a whole, except as disclosed in or
contemplated by the Registration Statement and Prospectus, and (ii)
there shall have been no material transaction entered into by FPL or
any of its subsidiaries that is material to FPL and its subsidiaries
taken as a whole, other than transactions disclosed in or contemplated
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 from
FPL signed by an officer of FPL.
(g) 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 7 shall
not have een fulfilled, this agreement may be terminated by the Representatives
upon mailng or delivering written notice thereof to FPL. Any such termination
shall be ithout liability of any party to any other party except as otherwise
provided n subsections (c) and (e) of Section 6 hereof.
8. Condition of FPL's Obligations. The obligation of FPL to deliver the
Bonds shal be subject 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 Incorporated
Document shall be in effect on 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.
10
In case the conditions specified above in this Section 8 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 6 hereof.
9. Indemnification.
(a) FPL agrees to indemnify and hold harmless each Underwriter,
each officer and director of each Underwriter and each person who
controls any Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange 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 Underwriter,
officer, director and controlling person for any legal or other
expenses (including, to the extent hereinafter provided, reasonable
counsel fees) when and as 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 an 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 the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the
indemnity agreement contained in this subsection (a) of Section 9
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 in writing, to FPL by or on
behalf of any Underwriter, through the Representatives, expressly for
use in connection with the preparation of any preliminary prospectus,
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 Statements of Eligibility; and
provided, further, that the indemnity agreement contained in this
subsection (a) of Section 9 in respect of any preliminary prospectus
(and for purposes of clause (ii) below, the Prospectus) shall not
inure to the benefit of any Underwriter (or of any officer or director
of or person controlling such Underwriter) on account of any such
losses, claims, damages, liabilities, expenses or actions arising from
the sale of the Bonds [of any series] 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 the alleged omission
or alleged untrue statement with respect to such preliminary
11
prospectus is not corrected in the Prospectus or the Prospectus as
amended or supplemented 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, but exclusive of any
Incorporated Documents, unless the alleged omission or alleged untrue
statement with respect to such preliminary prospectus or the
Prospectus was not corrected in the Prospectus or in such amendment or
supplement at the time of such delivery of such Bonds. The indemnity
agreement of FPL contained in this subsection (a) of Section 9 and the
representations and warranties of FPL contained in Section 3 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
officer, director or controlling person, and shall survive the
delivery of the Bonds [of each series]. 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 officer, director or controlling person in
connection with the issuance and sale of the Bonds [of any series].
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless FPL, its officers and directors, and each
person who controls FPL within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange 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) when and as 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 an untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus,
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 if such statement or omission was made in reliance upon and
in conformity with information furnished in writing to FPL, by or on
behalf of such Underwriter, through the Representatives, expressly for
use in connection with the preparation of any preliminary prospectus,
the Registration Statement or the Prospectus or any amendment or
supplement thereof. The Underwriters hereby furnish to FPL in writing
expressly for use in the [preliminary prospectus, the] Registration
Statement and Prospectus [insert information provided by the
Underwriters]. FPL acknowledges that the statements set forth in the
preceding sentence[s] constitute the only information furnished in
writing by or on behalf of the several Underwriters expressly for
inclusion in any preliminary prospectus, the Registration Statement or
the Prospectus. The indemnity agreement of the respective Underwriters
contained in this subsection (b) of Section 9 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 [of each series]. 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 [of any series].
(c) FPL and each of 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 or contribution may be sought
under the provisions of this Section 9, it will promptly give written
notice of the commencement thereof to the party or parties against
12
whom indemnity or contribution 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 or parties
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 reasonably 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 each of the indemnifying parties shall elect
not to assume the defense of such action, such indemnifying party or
parties 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 or parties, to participate in
the defense of such action on behalf of such indemnified party or
parties at the expense of the indemnifying party or parties (it being
understood, however, that the indemnifying party or parties shall not
be liable for the expenses of more than one separate counsel
representing the indemnified parties who are parties to such action).
FPL and each of the several Underwriters each agree that without the
prior written consent of the other parties to such action who are
parties to this agreement, which consent shall not be unreasonably
withheld, it will not settle, compromise or consent to the entry of
any judgment in any claim or proceeding in respect of which such party
intends to seek indemnity or contribution under the provisions of this
Section 9, unless such settlement, compromise or consent (i) includes
an unconditional release of such other parties from all liability
arising out of such claim or proceeding and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to
act by or on behalf of such other parties.
(d) If, or to the extent, the indemnification provided for in
subsections (a) or (b) above shall be unenforceable under applicable
law by an indemnified party, each indemnifying party agrees to
contribute to such indemnified party with respect to any and all
losses, claims, damages, liabilities and expenses for which each such
indemnification provided for in subsections (a) or (b) above shall be
unenforceable, in such proportion as shall be appropriate to reflect
(i) the relative fault of FPL on the one hand and the Underwriters on
the other in connection with the statements or omissions which have
resulted in such losses, claims, damages, liabilities and expenses,
(ii) the relative benefits received by FPL on the one hand and the
Underwriters on the other hand from the offering of the Bonds pursuant
to this agreement, and (iii) any other relevant equitable
considerations; provided, however, that no indemnified party guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution with respect
thereto from any indemnifying party not guilty of such fraudulent
misrepresentation. Relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of
13
a material fact or the omission or alleged omission to state a
material fact relates to information supplied by FPL or the
Underwriters and each such party's relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue
statement or omission. FPL and each of the Underwriters agree that it
would not be just and equitable if contribution pursuant to this
subsection (d) were to be determined by pro rata allocation or by any
other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute in excess of the amount equal to the excess of (i) the
total price at which the Bonds underwritten by it were offered to the
public, over (ii) the amount of any damages which such Underwriter has
otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission. The obligations of
each Underwriter to contribute pursuant to this subsection (d) are
several and not joint and shall be in the same proportion as such
Underwriter's obligation to underwrite the Bonds [of the series with
respect to which contribution is sought] is to the total principal
amount of the Bonds [of such series] set forth in Schedule II hereto.
10. 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 after the date hereof and at or prior to the Closing
Date:
(a) (i) there shall have occurred any general suspension of
trading in securities on The New York Stock Exchange, Inc. (the
"NYSE") or there shall have been established by the NYSE 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 general
restrictions on the distribution of securities, or trading in any
securities of FPL shall have been suspended or limited by any exchange
located in the United States or on the over-the-counter market located
in the United States or a general banking moratorium declared by New
York or federal authorities or (ii) there shall have occurred any
material adverse change in the financial markets in the United States,
any outbreak of hostilities, including, but not limited to, an
escalation of hostilities which existed prior to the date of this
agreement, any other national or international calamity or crisis or
any material adverse change in financial, political or economic
conditions affecting the United States, the effect of any such event
specified in this clause (ii) being such as to make it, in the
reasonable judgment of the Representatives, impracticable or
inadvisable to proceed with the offering of the Bonds [of any series]
as contemplated in the Prospectus or for the Underwriters to enforce
contracts for the sale of the Bonds [of any series]; or
(b) (i) there shall have been any downgrading or any notice of
any intended or potential downgrading in the ratings accorded to the
Bonds [of any series] or any securities of FPL which are of the same
class as the Bonds by either [▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's")] or [Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P")], or (ii) either [Moody's] or
[S&P] shall have publicly announced that either has under surveillance
or review, with possible negative implications, its ratings of the
Bonds [of any series] or any securities of FPL which are of the same
class as the Bonds, the effect of any such event specified in (i) or
(ii) above being such as to make it, in the reasonable judgment of the
14
Representatives, impracticable or inadvisable to proceed with the
offering of the Bonds [of any series] as contemplated in the
Prospectus or for the Underwriters to enforce contracts for the sale
of the Bonds [of any series].
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 the Prospectus prepared and
furnished by FPL after the date hereof reflects a material adverse change in the
business, properties or financial condition of FPL and its subsidiaries taken as
a whole which renders it either inadvisable to proceed with such offering, if
any, or inadvisable to proceed with the delivery of the Bonds [of any series] to
be purchased hereunder. Any termination of this agreement pursuant to this
Section 10 shall be without liability of any party to any other party except as
otherwise provided in subsections (c) and (e) of Section 6 hereof.
11. Miscellaneous. The validity and interpretation of this agreement
shall be governed by the laws of the State of New York without regard to
conflicts of law principles thereunder. This agreement shall inure to the
benefit of, and be binding upon, FPL, the several Underwriters and, with respect
to the provisions of Section 9 hereof, each officer, director or 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
or entity 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.
12. Notices. All communications hereunder shall be in writing or by
telegram and, if to the Underwriters, shall be mailed or delivered to the
Representatives at the address set forth in Schedule I hereto, or if to FPL,
shall be mailed or delivered to it at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer.
15
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:
--------------------------------
Name:
Title:
Accepted and delivered as of the
date first above written:
By:
-----------------------------
Name:
Title:
Acting on [its] [their] their own behalf and on behalf of the other several
Underwriters referred to in the foregoing agreement.
16
SCHEDULE I
Underwriting Agreement dated _________, 200_
Registration Statement No. 333-______, 333-_______-01 and 333-_______-02
Representatives and Addresses:
Bonds:
Designation:
Principal Amount:
Date of Maturity:
Interest Rate:
Purchase Price:
Underwriting Discount:
Price to Public:
Dealers' Concession:
Closing Date, Time
and Location:
SCHEDULE II
PRINCIPAL AMOUNT [PRINCIPAL AMOUNT
UNDERWRITER OF ____% BONDS OF ____% BONDS]
Total..............................
SCHEDULE III
[LETTERHEAD OF STEEL ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP]
[Date]
as Representatives of the Underwriters
named in Schedule II to the Agreement,
as herein described
Ladies and Gentlemen:
We have acted as counsel for Florida Power & Light Company ("FPL") (a)
in connection with the authorization and issuance by FPL of $_________ principal
amount of First Mortgage Bonds, ____% Series due __________, 20__ [and
$__________ principal amount of First Mortgage Bonds, ____% Series due
__________, 20__] ([collectively,] the "Bonds"), issued under the Mortgage and
Deed of Trust dated as of January 1, 1944, as the same is supplemented by one
hundred and [___] indentures supplemental thereto, the latest of which (the "One
Hundred [_____] Supplemental Indenture") is dated as of __________, 200_ (such
Mortgage as so supplemented being hereinafter called the "Mortgage") from FPL to
Deutsche Bank Trust Company Americas, as Trustee ("Mortgage Trustee"), and (b)
in connection with the sale of the Bonds to you in accordance with the
Underwriting Agreement, dated _________, 200_, between you and FPL (the
"Agreement"). Capitalized terms used in this opinion but not defined shall have
the meanings set forth in the Agreement.
We have participated in the preparation of or reviewed (1) Registration
Statement Nos. 333-______, 333-________-01 and 333-_______-02 which became
effective on _________, 200_, which registration statement was filed by FPL,
Florida Power & Light Trust I and Florida Power & Light Company Trust II with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Securities Act"), (references herein to the term
"Registration Statement" as of any given date shall mean Registration Statement
Nos. 333-______, 333-________-01 and 333-_______-02 as amended and supplemented
to such date, including those documents incorporated by reference therein as of
such date pursuant to Item 12 of Form S-3 under the Securities Act (the
"Incorporated Documents")); (2) the prospectus dated _________, 200_ forming a
part of the Registration Statement, as supplemented by a prospectus supplement
dated __________, 200_ relating to the Bonds, both such prospectus and
prospectus supplement filed pursuant to Rule 424(b) under the Securities Act
("Rule 424" and references herein to the "Prospectus" as of any given date shall
refer to such prospectus, as supplemented by the prospectus supplement relating
to the Bonds filed pursuant to Rule 424, and as further amended and supplemented
to such date, including the Incorporated Documents); (3) the Mortgage; (4) the
corporate proceedings with respect to the Registration Statement and with
respect to the authorization, issuance and sale of the Bonds; (5) FPL's Restated
Articles of Incorporation, as amended to the date hereof (the "Charter"), and
Bylaws, as amended to the date hereof (the "Bylaws"); and (6) such other
corporate records, certificates and other documents and such questions of law as
we have considered necessary or appropriate for the purposes of this opinion. We
have also participated in the preparation of FPL's Application to the Florida
Public Service Commission ("FPSC") for the authorization of, among other things,
the issuance and sale of debt securities in 200_, including the Bonds.
Upon the basis of the foregoing, we advise you 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 FPSC; 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 authorized by FPL by all necessary corporate
action, has been duly and validly executed and delivered by FPL, and is a valid
and binding obligation of FPL enforceable against FPL 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 [of each series] are valid and binding obligations of FPL
enforceable against it in accordance with their [respective] 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.
Except as to the financial statements and other financial or
statistical data contained or incorporated by reference therein, as to which we
express no opinion, and except for those parts of the Registration Statement
that constitute Statements of Eligibility on Form T-1, as to which we express no
opinion, the Registration Statement, at the Effective Date, and the Prospectus,
at the 424 Date, 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. The Incorporated Documents
III-2
(except as to the financial statements and other financial or statistical data
contained or incorporated by reference therein, as to which we express no
opinion), at the time they were filed with the Commission, complied as to form
in all material respects with the applicable requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the applicable
instructions, rules and regulations of the Commission thereunder. The
Registration Statement became, and is, at the date hereof, effective under the
Securities Act, and to the best of our knowledge, 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 contemplated in the Agreement and
the fulfillment of the terms contained in the Agreement 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 the Bylaws or any indenture, mortgage, deed of trust or other
agreement or instrument the terms of which are known to us 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 and its
subsidiaries taken as a whole.
VII.
The Bonds are being issued and sold pursuant to the authority contained
in an order of the FPSC, which authority is adequate to permit the issuance and
sale of the Bonds. To the best of our knowledge, 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, as to which we express no
opinion, and other than those which have been already obtained) is legally
required for the authorization of the issuance and sale of the Bonds.
VIII.
The statements made in the Prospectus under the headings ["Description
of the Bonds" and "Certain Terms of the Offered Bonds,"] [and _________] insofar
as they purport to constitute summaries of the terms of the documents referred
to therein, constitute accurate summaries of the terms of such documents in all
material respects.
IX.
The Mortgage is duly qualified under the Trust Indenture Act of 1939,
as amended.
X.
The Agreement has been duly and validly authorized, executed and
delivered by FPL.
XI.
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
III-3
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 our opinion, 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 and remedies generally and general principles of equity.
The [One Hundred ______] Supplemental Indenture is in proper form for recording
in all places required; and upon such recording, the [One Hundred ______]
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 [One Hundred _______] Supplemental Indenture
to the Mortgage and prior to the recording of the [One Hundred _______]
Supplemental Indenture.
XII.
Except as stated or referred to in the Prospectus, to our knowledge
after due inquiry, there is no material pending legal proceeding to which FPL or
any of its subsidiaries is a party or of which property of FPL or any of its
subsidiaries is the subject which is reasonably likely to be determined
adversely and, if determined adversely, might reasonably be expected to have a
material adverse effect on FPL and its subsidiaries taken as a whole and, to the
best of our knowledge, no such proceeding is known to be contemplated by
governmental authorities.
In rendering the foregoing opinion, we have assumed that the
certificates representing the Bonds will conform to specimens examined by us and
that the Bonds will be duly authenticated by the Mortgage Trustee under the
Mortgage and will be delivered against payment of the purchase price as provided
in the Agreement and that the signatures on all documents examined by us are
genuine, assumptions which we have not independently verified.
Other than with respect to the opinion expressed in Paragraph VIII
hereof, we have not ourselves checked the accuracy or completeness of, or
otherwise verified, the information furnished with respect to matters in the
Registration Statement or the Prospectus. We have generally reviewed and
discussed such information with certain officers and employees of FPL, certain
of its other legal counsel, its independent public accountants and your
representatives. Additionally, as counsel to FPL, we have responsibility for
certain of its legal matters. On the basis of such consideration, review and
discussion, but without independent check or verification except as stated,
nothing has come to our attention that would lead us to believe (except as to
the financial statements and other financial or statistical data contained or
incorporated by reference therein, as to which we express no belief, and except
for those parts of the Registration Statement that constitute the Statement of
Eligibility on Form T-1, as to which we express no belief), that the
Registration Statement, at the Effective Date, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements contained therein not
misleading or (except as aforesaid) that the Prospectus at the 424 Date
III-4
included, or at the date hereof includes, an untrue statement of a material fact
or the Prospectus at the 424 Date omitted, or at the date hereof 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.
We are members of the Florida Bar and do not hold ourselves out as
experts on the laws of New York or Georgia, and accordingly, this opinion is
limited to the laws of Florida and the federal laws of the United States insofar
as they bear on matters covered hereby. As to all matters of New York law, we
have relied, with your consent, upon an opinion of even date herewith addressed
to you by ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, New York, New York. As to all matters of law
affecting Mortgaged and Pledged Property located in the State of Georgia, we
have relied, with your consent, upon an opinion of even date herewith addressed
to you and us by ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C., Decatur, Georgia. As to all matters
of Florida law, ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP and Hunton & ▇▇▇▇▇▇▇▇ LLP are hereby
authorized to rely upon this opinion as though it were rendered to each of them.
This opinion is rendered to you in connection with the above-described
transaction. This opinion may not be relied upon by you for any other purpose,
or relied upon or furnished to any other person, firm or corporation without our
prior written permission. This opinion is expressed as of the date hereof, and
we do not assume any obligation to update or supplement it to reflect any fact
or circumstance that hereafter comes to our attention, or any change in law that
hereafter occurs.
Very truly yours,
STEEL ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
III-5
SCHEDULE IV
[LETTERHEAD OF ▇▇▇▇▇▇ ▇▇▇▇ & PRIEST LLP]
[Date]
as Representatives of the Underwriters
named in Schedule II to the Agreement,
as herein described
Ladies and Gentlemen:
We have acted as special counsel for Florida Power & Light Company
("FPL") (a) in connection with the authorization and issuance by FPL of
$__________ principal amount of First Mortgage Bonds, ____% Series due
__________, 20__ [and $__________ principal amount of First Mortgage Bonds,
____% Series due __________, 20__] ([collectively,] the "Bonds"), issued under
the Mortgage and Deed of Trust dated as of January 1, 1944, as the same is
supplemented by one hundred and [___] indentures supplemental thereto, the
latest of which (the "One Hundred [_______] Supplemental Indenture") is dated as
of _________, 200_ (such Mortgage as so supplemented being hereinafter called
the "Mortgage") from FPL to Deutsche Bank Trust Company Americas, as Trustee
("Mortgage Trustee"), and (b) in connection with the sale of the Bonds to you in
accordance with the Underwriting Agreement dated _________, 200_, between you
and FPL (the "Agreement"). Capitalized terms used in this opinion but not
defined shall have the meanings set forth in the Agreement.
We have participated in the preparation of or reviewed (1) Registration
Statement Nos. 333-______, 333-________-01 and 333-_______-02 which became
effective on _________, 200_, which registration statement was filed by FPL,
Florida Power & Light Trust I and Florida Power & Light Company Trust II with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Securities Act"), (references herein to the term
"Registration Statement" as of any given date shall mean Registration Statement
Nos. 333-______, 333-________-01 and 333-_______-02 as amended and supplemented
to such date, including those documents incorporated by reference therein as of
such date pursuant to Item 12 of Form S-3 under the Securities Act (the
"Incorporated Documents")); (2) the prospectus dated _________, 200_ forming a
part of the Registration Statement, as supplemented by a prospectus supplement
dated __________, 200_ relating to the Bonds, both such prospectus and
prospectus supplement filed pursuant to Rule 424(b) under the Securities Act
("Rule 424" and references herein to the "Prospectus" as of any given date shall
refer to such prospectus, as supplemented by the prospectus supplement relating
to the Bonds filed pursuant to Rule 424, and as further amended and supplemented
to such date, including the Incorporated Documents); (3) the Mortgage; (4) the
corporate proceedings with respect to the Registration Statement and with
respect to the authorization, issuance and sale of the Bonds; (5) FPL's Restated
Articles of Incorporation, as amended to the date hereof (the "Charter"), and
Bylaws, as amended to the date hereof (the "Bylaws"); and (6) such other
corporate records, certificates and other documents and such questions of law as
we have considered necessary or appropriate for the purposes of this opinion. We
have also participated in the preparation of FPL's Application to the Florida
Public Service Commission ("FPSC") for the authorization of, among other things,
the issuance and sale of debt securities in 200_, including the Bonds.
Upon the basis of the foregoing, we advise you that:
I.
The Mortgage has been duly authorized by FPL by all necessary corporate
action, has been duly and validly executed and delivered by FPL, and is a valid
and binding obligation of FPL enforceable against FPL 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.
II.
The Bonds [of each series] are valid and binding obligations of FPL
enforceable against it in accordance with their [respective] 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.
III.
Except as to the financial statements and other financial or
statistical data contained or incorporated by reference therein, as to which we
express no opinion, and except for those parts of the Registration Statement
that constitute the Statement of Eligibility on Form T-1, as to which we express
no opinion, the Registration Statement, at the Effective Date, and the
Prospectus, at the 424 Date, 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. The
Incorporated Documents (except as to the financial statements and other
financial or statistical data contained or incorporated by reference therein, as
to which we express no opinion), at the time they were filed with the
Commission, complied as to form in all material respects with the applicable
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the applicable instructions, rules and regulations of the Commission
thereunder. The Registration Statement became, and is, at the date hereof,
effective under the Securities Act, and to the best of our knowledge, no
proceedings for a stop order with respect thereto are pending or threatened
under Section 8 of the Securities Act.
IV.
The consummation of the transactions contemplated in the Agreement and
the fulfillment of the terms contained in the Agreement 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 the Bylaws or any indenture, mortgage, deed of trust or other
IV-2
agreement or instrument the terms of which are known to us 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 and its
subsidiaries taken as a whole.
V.
The Bonds are being issued and sold pursuant to the authority contained
in an order of the FPSC, which authority is adequate to permit the issuance and
sale of the Bonds. To the best of our knowledge, 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, as to which we express no
opinion, and other than those which have been already obtained) is legally
required for the authorization of the issuance and sale of the Bonds.
VI.
The statements made in the Prospectus under the headings ["Description
of the Bonds" and "Certain Terms of the Offered Bonds,"] [and _________] insofar
as they purport to constitute summaries of the terms of the documents referred
to therein, constitute accurate summaries of the terms of such documents in all
material respects.
VII.
The Mortgage is duly qualified under the Trust Indenture Act of 1939,
as amended.
VIII.
The Agreement has been duly and validly authorized, executed and
delivered by FPL.
In rendering the foregoing opinion, we have assumed that the
certificates representing the Bonds will conform to specimens examined by us and
that the Bonds will be duly authenticated by the Mortgage Trustee under the
Mortgage and will be delivered against payment of the purchase price as provided
in the Agreement and that the signatures on all documents examined by us are
genuine, assumptions which we have not independently verified.
Other than with respect to the opinion expressed in Paragraph VI
hereof, we have not ourselves checked the accuracy or completeness of, or
otherwise verified, the information furnished with respect to matters in the
Registration Statement or the Prospectus. We have generally reviewed and
discussed such information with certain officers and employees of FPL, certain
of its other legal counsel, its independent public accountants and your
representatives. On the basis of such consideration, review and discussion, but
without independent check or verification except as stated, nothing has come to
our attention that would lead us to believe (except as to the financial
statements and other financial or statistical data contained or incorporated by
reference therein, as to which we express no belief, and except for those parts
of the Registration Statement that constitute the Statement of Eligibility on
Form T-1, as to which we express no belief), that the Registration Statement, at
the Effective Date, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to
make the statements contained therein not misleading or (except as aforesaid)
IV-3
that the Prospectus at the 424 Date included, or at the date hereof includes, an
untrue statement of a material fact or the Prospectus at the 424 Date omitted,
or at the date hereof 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.
This opinion is limited to the laws of the States of New York and
Florida and the federal laws of the United States of America. We express no
opinion as to the incorporation of FPL, titles to property, franchises or the
lien of the Mortgage. As to all matters of Florida law, we have relied, with
your consent, upon an opinion of even date herewith addressed to you by Steel
▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, Miami, Florida. As to all matters of New York law, Steel
▇▇▇▇▇▇ & ▇▇▇▇▇ LLP is hereby authorized to rely upon this opinion as though it
were rendered to Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP.
This opinion is rendered to you in connection with the above-described
transaction. This opinion may not be relied upon by you for any other purpose,
or relied upon or furnished to any other person, firm or corporation without our
prior written permission. This opinion is expressed as of the date hereof, and
we do not assume any obligation to update or supplement it to reflect any fact
or circumstance that hereafter comes to our attention, or any change in law that
hereafter occurs.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇ & PRIEST LLP
IV-4
SCHEDULE V
[LETTERHEAD OF HUNTON & ▇▇▇▇▇▇▇▇ LLP]
[Date]
as Representatives of the Underwriters
named in Schedule II to the Agreement,
as herein described
Ladies and Gentlemen:
We have acted as counsel for you in connection with your several
purchases from Florida Power & Light Company ("FPL") of $__________ principal
amount of First Mortgage Bonds, ____% Series due __________, 20__ [and
$__________ principal amount of First Mortgage Bonds, ____% Series due
__________, 20__] ([collectively,] the "Bonds"), issued under FPL's Mortgage and
Deed of Trust dated as of January 1, 1944, with Deutsche Bank Trust Company
Americas, 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 Bonds (as so amended and supplemented, the "Mortgage"), pursuant to the
Underwriting Agreement, dated __________, 200_, between you and FPL (the
"Agreement"). Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to them in the Agreement.
In connection with the foregoing, we have examined such documents and
satisfied ourselves as to such other matters as we have deemed necessary in
order to enable us to express this opinion.
For purposes of the opinions expressed below, we have assumed without
verification (i) the authenticity of all documents submitted to us as originals;
(ii) the conformity to the originals of all documents submitted as certified or
photostatic copies and the authenticity of the originals of such documents;
(iii) the genuineness of signatures not witnessed by us; and (iv) the legal
capacity of natural persons.
In rendering the following opinion, we have assumed that the
certificates representing the Bonds will conform to specimens examined by us and
that the Bonds will be duly authenticated by the Mortgage Trustee under the
Mortgage and will be delivered against payment of the purchase price as provided
in the Agreement.
As to factual matters, we have relied upon representations and
warranties included in the Agreement and upon certificates of officers of FPL
being delivered to you today pursuant to Section 7(a) of the Agreement, and upon
certificates of public officials, without independent investigation. Whenever
the phrase "to the best of our knowledge" or "has come to our attention" is used
herein, it refers to the actual knowledge of the attorneys involved in this
transaction, without independent investigation.
We do not purport to express an opinion on any laws other than the laws
of the State of New York, the United States of America and, to the extent set
forth herein, the laws of the State of Florida. As to all matters of Florida
law, we have, with your consent, relied upon the opinion of even date herewith
addressed to you by Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for FPL. We express no
opinion or belief as to the incorporation of FPL, titles to property, franchises
or the lien of the Mortgage.
Based upon the foregoing, we are of the opinion that:
I.
1. The Mortgage has been duly authorized by FPL by all necessary
corporate action, has been duly and validly executed and delivered by FPL, and
is a valid and binding obligation of FPL enforceable against FPL 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.
2. The Bonds [of each series] are valid and binding obligations of FPL
enforceable against FPL in accordance with their [respective] 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.
3. The statements made in the Prospectus under the headings
["Description of the Bonds" and "Certain Terms of the Offered Bonds,"] [and
__________] insofar as such statements purport to constitute summaries of the
terms of the documents referred to therein, constitute accurate summaries of the
terms of such documents in all material respects.
4. The Registration Statement has become, and is, at the date hereof,
effective under the Securities Act, and to the best of our knowledge, no
proceedings for a stop order with respect thereto are pending or threatened
under Section 8 of the Securities Act of 1933, as amended (the "Securities
Act").
5. The Mortgage is duly qualified under the Trust Indenture Act of
1939, as amended.
6. The Agreement has been duly and validly authorized, executed and
delivered by FPL.
II.
Except as to the financial statements and other financial or
statistical data contained or incorporated by reference therein, as to which we
express no opinion, and except for those parts of the Registration Statement
that constitute the Statement of Eligibility on Form T-1, as to which we express
no opinion, Registration Statement No. 333-_______, at the Effective Date, and
V-2
the Prospectus, at the 424 Date, 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. The
Incorporated Documents (except as to the financial statements and other
financial or statistical data contained or incorporated by reference therein, as
to which we express no opinion), at the time they were filed with the
Commission, complied as to form in all material respects with the applicable
requirements of the Securities Exchange Act of 1934, as amended, and the
applicable instructions, rules and regulations of the Commission thereunder.
In passing on the form of each of the Registration Statement and the
Prospectus, we necessarily assume the correctness and completeness of the
statements made or included therein by FPL and take no responsibility therefor,
except insofar as such statements relate to us and as set forth in paragraph 3
in Part I hereof. Other than with respect to the opinion expressed in said
paragraph 3, we have not ourselves checked the accuracy or completeness of, or
otherwise verified, the information furnished with respect to matters in the
Registration Statement or the Prospectus. We have generally reviewed and
discussed such information with certain officers and employees of FPL, certain
of its legal counsel and its independent certified public accountants and your
representatives.
On the basis of such review and discussion, but without independent
check or verification except as stated, nothing has come to our attention that
would lead us to believe (except as to the financial statements and other
financial or statistical data contained or incorporated by reference therein, as
to which we express no belief, and except for those parts of the Registration
Statement that constitute the Statement of Eligibility on Form T-1, as to which
we express no belief), that the Registration Statement, at the Effective Date,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
contained therein not misleading or (except as aforesaid) that the Prospectus at
the 424 Date included, or at the date hereof includes, an untrue statement of a
material fact or the Prospectus at the 424 Date omitted, or at the date hereof
omits, to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
This opinion is furnished solely for your use as the Underwriters in
connection with the Agreement and the transactions contemplated thereunder, and
it is not to be quoted, in whole or in part, or otherwise referred to, nor is it
to be filed with any governmental agency or any other person, nor is it to be
relied upon by any person other than you or for any other purpose without our
express written consent. This opinion is expressed as of the date hereof, and we
do not assume any obligation to advise you of facts or circumstances that
hereafter come to our attention, or of changes in law that hereafter occur,
which could affect the opinion contained herein.
Very truly yours,
HUNTON & ▇▇▇▇▇▇▇▇ LLP
V-3