FLORIDA POWER & LIGHT COMPANY Secured Medium-Term Notes, Series __ Distribution Agreement
Exhibit
1(d)
FLORIDA
POWER & LIGHT COMPANY
Secured
Medium-Term Notes, Series __
[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 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,
pursuant to the ____________ Supplemental Indenture relating to an aggregate
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) FPL
has
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, 333-______-02, 333-_______-03,
333-_______-04, 333-_______-05, 333-_______-06, 333-_______-07 and
333-_______-08) (“Registration Statement No. 333-______”) with certain other
registrants as described therein, for the registration under the Securities
Act
of 1933, as amended (the “Securities Act”), of an unspecified aggregate
principal amount of its First Mortgage Bonds, among other securities. Such
registration statement has become effective 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. Subsequent to the date hereof, it will file with
the Commission any additional registration statement or registration statements
(“Subsequent Registration Statement”) or a post-effective amendment to
Registration Statement No. 333-______ 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 time
shall mean Registration Statement No. 333-______, as amended or supplemented
to
such time, including all documents incorporated by reference therein as of
such
time pursuant to Item 12 of Form S-3 (“Incorporated
Documents”) and any prospectus, preliminary prospectus supplement or prospectus
supplement relating to the Securities deemed to be a part thereof pursuant
to
Rule 430B that has not been superseded or modified. References herein to the
term “Registration Statement” without reference to a time means the Registration
Statement as of such date and time as agreed to between FPL and the Agent in
connection with each Settlement Date (which date and time is the earlier of
the
date and time of (x) the first use of the preliminary prospectus supplement
relating to the Securities and (y) the first contract of sale of the
Securities), which time shall be considered the “Effective Date” of the
Registration Statement. 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
becomes effective, 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-______ (“Current Bonds”) have been issued
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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. 333-______,
as
it may be amended or supplemented at such time, including as of such time all
Incorporated Documents. For purposes of the definitions of “Registration
Statement” in the preceding two sentences, information contained in any
prospectus, preliminary prospectus supplement or prospectus supplement relating
to FPL securities (but except as relate to securities other than the Securities)
that is deemed retroactively to be a part of the Registration Statement pursuant
to Rule 430B shall be considered to be included in the Registration Statement
as
of the time specified in Rule 430B. References herein to the term “Pricing
Prospectus” shall mean the prospectus relating to FPL forming a part of
Registration Statement No. 333-______, including all Incorporated Documents
and
any prospectus or prospectus supplement relating to the Securities deemed to
be
a part of such registration statement that has not been superseded or modified.
For purposes of the definition of “Pricing Prospectus” with respect to a
particular offering of Securities, information contained in a prospectus or
prospectus supplement (other than a prospectus or prospectus supplement that
does not relate to the Securities) that is deemed retroactively to be a part
of
the Registration Statement pursuant to Rule 430B shall be considered to be
included in the Pricing Prospectus as of the time that form of prospectus or
prospectus supplement is filed with the Commission pursuant to Rule 424 of
the
general rules and regulations of the Securities Act (“Rule 424”). References
herein to the term “Prospectus” means the Pricing Prospectus that discloses the
public offering price and other final terms of the Securities and otherwise
satisfies Section 10(a) of the Securities Act. References herein to the term
“Prospectus” at a particular time shall mean the prospectus relating to FPL
securities forming a part of Registration Statement No. 333-______ or, after
the
Subsequent Registration Statement becomes effective, the prospectus or combined
prospectus relating to FPL securities 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 further
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. Each of the Agents
acknowledges that on or subsequent to the [Settlement Date], FPL may file a
post-effective amendment to the Registration Statement pursuant to Rule 462(d)
under the Securities Act or a Current Report on Form 8-K in order to file one
or
more unqualified opinions of counsel.
(b) The
Registration Statement constitutes an “automatic shelf registration statement”
(as defined in Rule 405 under the Securities Act) filed within three years
of
the date hereof; no notice of objection of the Commission with respect to the
use of the Registration Statement pursuant to Rule 401(g)(2) under the
Securities Act has been received by FPL; and with respect to the Securities
FPL
is a “well-known seasoned issuer” within the meaning of subparagraph (1)(ii) of
the definition of “well-known seasoned issuer” in Rule 405 under the Securities
Act.
(c) The
Registration Statement at the Effective Date fully complied, and on each date
and time the Prospectus is filed with the Commission pursuant to Rule 424 (such
date and time, the “424 Date”), and on any Settlement Date, the Registration
Statement 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;
the
Registration Statement, at the Effective Date, did not, and on any Settlement
Date, 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 424 Date and on any Settlement Date,
the Prospectus 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 (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
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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 on Form T-1, or amendments thereto, filed as exhibits to 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.
(d) As
of the
Applicable Time (as defined below), the Pricing Disclosure Package (as defined
below), did not contain 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
(d) shall not apply to statements or omissions made in reliance upon and in
conformity with information furnished in writing to FPL by or on behalf of
any
Agent through the Representatives expressly for use in connection with the
preparation of the Registration Statement, the Pricing Prospectus, any
preliminary prospectus supplement or any Issuer Free Writing Prospectus (as
defined below), or to any statements in or omissions from the Statements of
Eligibility or to any statements or omissions made in the Registration
Statement, the Pricing Prospectus, any preliminary prospectus supplement or
any
Issuer Free Writing Prospectus relating to the DTC Book-Entry-Only System that
are based solely on information contained in published reports of DTC.
References to the term “Pricing Disclosure Package” shall mean the documents
agreed to by FPL and the Agents in connection with each Settlement Date.
References to the term “Issuer Free Writing Prospectus” shall mean an issuer
free writing prospectus, as defined in Rule 433 under the Securities Act.
References to the term “Free Writing Prospectus” shall mean a free writing
prospectus, as defined in Rule 405 under the Securities Act. References to
the
term “Applicable Time” means a time and date with respect to each Settlement
Date to be agreed upon between FPL and the Agents. If there occurs an event
or
development as a result of which the Pricing Disclosure Package would include
an
untrue statement of a material fact or would omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances then prevailing, not misleading, FPL promptly will notify the
Representatives so that any use of the Pricing Disclosure Package may cease
until it is amended or supplemented.
(e) As
of the
Applicable Time, no Issuer Free Writing Prospectus includes any information
that
conflicts with the information contained in the Registration Statement, the
Prospectus or the Pricing Prospectus, including any document incorporated by
reference therein that has not been superseded or modified.
(f) The
financial statements included as part of or incorporated by reference in the
Pricing Disclosure Package, the Prospectus and 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 Pricing Disclosure Package and the Registration
Statement; and Deloitte & Touche LLP, who has audited the audited financial
statements of FPL, is an independent registered public accounting firm as
required by the Securities Act and the Exchange Act and the rules and
regulations of the Commission thereunder.
(g) Except
as
reflected in or contemplated by the Pricing Disclosure Package, since the
respective most recent times as of which information is given in the Pricing
Disclosure Package, 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 Pricing Disclosure Package, 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 Pricing Disclosure Package.
(h) 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
4
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 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 (regardless of whether enforcement
is
sought in a proceeding in equity or at law).
(i) The
execution and delivery of this agreement and the consummation of the
transactions herein contemplated by FPL, the fulfillment of the terms hereof
on
the part of FPL to be fulfilled 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.
(j) FPL
has
no direct or indirect significant subsidiaries (as defined in Regulation S-X
(17
CFR Part 210)).
(k) FPL
has
been duly organized, is validly existing and is in good standing under the
laws
of its jurisdiction of organization, and is duly qualified to do business and
is
in good standing as a foreign corporation in each jurisdiction in which its
ownership of properties or the conduct of its 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 necessary to own or hold its
properties and to conduct the businesses in which it is engaged.
(l) All
the
property to be subjected to the lien of the Mortgage will be adequately
described therein.
(m)
FPL
is
not an “investment company” within the meaning of the Investment Company Act of
1940, as amended.
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) 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.
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(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 with each Agent that:
(a) FPL
will
advise the Agents promptly (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, (iv) of the receipt from the Commission of any
notice of objection to the use of the Registration Statement or any
post-effective amendment pursuant to Rule 401(g)(2) under the Securities Act
and
(v) of the receipt by FPL of any official 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 every commercially reasonable effort to prevent the issuance of any
such
“stop order” and, if issued or if a notice of objection pursuant to Rule
401(g)(2) under the Securities Act has been received, 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 Hunton & ▇▇▇▇▇▇▇▇ LLP, 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, (1) one or more unqualified
opinions of counsel related to the transactions contemplated by this agreement
or (2) exhibits unrelated to the transactions contemplated by this
agreement.
(b) FPL
will
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 United States jurisdictions as the Agents may reasonably designate
after consultation with FPL 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.
(c) FPL
will
timely file 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) FPL
will
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 all Incorporated Documents and exhibits except
those incorporated by reference, which relate to the Securities, 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 furnish to the Agents as many copies of the Prospectus as
the
Agents may reasonably request for the purposes contemplated by the Securities
Act.
(e) FPL
will
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
or
any Issuer Free Writing Prospectus has been filed, as many copies of the
Prospectus as then amended or supplemented or Issuer Free Writing Prospectus
as
the Agents may reasonably request for the purposes contemplated by the
Securities Act.
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(f) FPL
will
timely file 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) FPL
will
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, FPL will 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, 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, 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 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, 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 offers for sale
and
solicitations of purchases of the Securities.
(j) FPL
will
pay or cause to be paid 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, the Prospectus
and amendments and supplements thereto, any preliminary prospectus or any Issuer
Free Writing Prospectus, including in each case all Incorporated Documents,
and
this agreement, (ii) the issuance and delivery of the Securities, (iii) the
qualification for offer and sale of the Securities under securities laws as
aforesaid (subject to the limit on such expenses and fees specified in Section
6(b) hereof) and (iv) the preparation, execution, filing and recording 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. The Agents agree to
notify FPL semi-annually in writing in reasonable detail of such fees and
expenses of Counsel for the Agents.
(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).
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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,
in all material respects, the representations and warranties of FPL contained
herein at the date of this agreement and any Settlement Date, to the performance
by FPL, in all material respects, of its obligations to be performed hereunder
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 be in effect; no proceedings for either such purpose shall be
pending before, or threatened by, the Commission on such date; and no notice
of
objection by the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities
Act shall have been received by FPL; at the date of this agreement the Agents
shall have received a certificate from FPL 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 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 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇ L.L.P., 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 (“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 (regardless of whether
enforcement is sought in a proceeding in equity or at law).
(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 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 (regardless of whether enforcement
is
sought in a proceeding in equity or at law), and will be 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, upon which such opinion need not pass, and
except for those parts of the Registration Statement that constitute the
Statements of Eligibility, upon which such opinion need not pass, 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, upon which such
8
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 the Bylaws 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 and its subsidiaries, taken as a whole.
(vii) 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, upon which such opinion
need not pass, nothing has come to the attention of said counsel that would
lead
them to believe that (1) 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, (2) the Pricing Disclosure Package, at the
Applicable Time, included an untrue statement or a material fact or omitted
to
state any material fact necessary in order to make the statements therein,
in
light of the circumstances under which they were made, not misleading, or (3)
that the Prospectus, at the 424 Date and at the date of such opinion, included
or includes an 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 FPSC, which authority is adequate to permit the issuance and sale
of the Securities during [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 upon which such opinion need not pass, and other than those
which have been already obtained) is legally required for the authorization
of
the issuance and sale of the Securities.
(ix) 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.
(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
9
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 and remedies
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, to the knowledge of said counsel 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 the knowledge of said counsel, no such proceeding is known to be
contemplated by governmental authorities.
(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
▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP and as to matters relating to Mortgaged and
Pledged Property located in the States of Georgia and New Hampshire on (i)
prior
opinions provided to FPL on matters of Georgia and New Hampshire law and (ii)
a
current opinion from Georgia and New Hampshire counsel.
(c) At
the
date of this agreement, the Agents shall have received from ▇▇▇▇▇▇ ▇▇▇▇ &
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) - (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 ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., 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 ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, 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), (vii) and (ix) - (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 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., 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 an independent
registered public accounting firm 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 Pricing
Prospectus or the Pricing Prospectus and the Prospectus, as applicable, 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. 100, Interim Financial Information, on the unaudited condensed consolidated
financial statements of FPL, if any, incorporated by reference in the Pricing
Prospectus or the Pricing Prospectus and Prospectus, as applicable, a reading
of
the latest available interim unaudited [condensed] consolidated
financial
10
statements
of FPL since the close of FPL’s most recent audited fiscal year, reading 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 standards of
the
Public Company Accounting Oversight Board (United States) 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 Agents’
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 Pricing Prospectus or the Pricing Prospectus
and the Prospectus, as applicable, (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 Pricing Prospectus or the Pricing Prospectus and
the
Prospectus, as applicable, 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 Pricing Prospectus or the Pricing Prospectus and the Prospectus, as
applicable, (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
such letter there was any change in the common stock or additional paid-in
capital, increase in the preferred stock or long-term debt including current
maturities and excluding fair value swaps and amortization of the unamortized
premiums and discount on 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 [condensed] consolidated balance sheet incorporated
by
reference in the Pricing Prospectus or the Pricing Prospectus and the
Prospectus, as applicable, except in all instances for changes, increases or
decreases which the Pricing Prospectus or the Pricing Prospectus and Prospectus,
as applicable, 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, if any, incorporated by reference in the Pricing
Prospectus or the Pricing Prospectus and the Prospectus, as applicable, 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 such letter, 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 Pricing
Prospectus or the Pricing Prospectus and the Prospectus, as applicable,
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
Pricing Prospectus or the Pricing Prospectus and the Prospectus, as applicable,
and Exhibit 12(b) to the Registration Statement and such other items as the
Agents may reasonably request.
(f) Since
the
respective most recent times as of which information is given in the Pricing
Disclosure Package, and up to any Settlement Date, 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 Pricing Disclosure Package, and since such times there
shall
have been no 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 Pricing Disclosure Package, 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 from FPL signed by an officer
of 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, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ L.L.P. and ▇▇▇▇▇▇ ▇▇▇▇ & 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 FPSC with respect
to
the issuance and sale of the Securities on the terms herein stated or
contemplated, and containing no provision unacceptable
11
to
the
Agents by reason of the fact that it is materially adverse to FPL; and at the
date of this agreement the Agents shall have received a certificate to such
effect, signed by FPL.
(j) All
legal
proceedings to be taken in connection with the issuance and sale of the
Securities shall have been satisfactory in form and substance to Counsel for
the
Agents.
In
case
any of the conditions specified above in this Section 7 shall not have been
fulfilled, the Agents shall have no further obligation to proceed with any
offering, sale, or any solicitation of purchase of the Securities or any
purchase by the Agents as principal of the Securities pursuant to any Terms
Agreement or otherwise.
8. Further
Representations and Warranties by FPL.
FPL represents and warrants, and agrees with the Agents, that:
(a) Each
authorization by FPL to the Agents to offer for sale, or solicit purchases
of,
the Securities as provided in the Procedures and each purchase of Securities
by
the Agent as principal pursuant to any Terms Agreement shall be deemed to be
an
affirmation that the representations and warranties of FPL contained in this
agreement are true and correct in all material respects 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
in
all material respects 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 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. and ▇▇▇▇▇▇ ▇▇▇▇ &
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 securities other
than 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
12
Statement
or Prospectus (except (i) supplements or amendments relating solely to the
sale
of securities other than 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 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇ L.L.P. and ▇▇▇▇▇▇ ▇▇▇▇ & 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.
(a) FPL
agrees to indemnify and hold harmless each Agent, each officer and director
of
each Agent and each person who controls such Agent 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 Agent, 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, including all Incorporated Documents, or in the
Registration Statement, the Pricing Prospectus, the Prospectus or any Issuer
Free Writing 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)
13
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 such Agent,
expressly for use in connection with the preparation of any preliminary
prospectus, the Registration Statement, the Pricing Prospectus, the Prospectus
or any Issuer Free Writing Prospectus or any amendment or supplement to any
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, the Pricing Prospectus, any Issuer Free Writing Prospectus or the
Prospectus) shall not inure to the benefit of such Agent (or of any officer
or
director or 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 in respect of any preliminary prospectus, the Pricing
Prospectus, any Issuer Free Writing Prospectus or the Prospectus, each as may
be
then supplemented or amended, furnished by such Underwriter to a person to
whom
any of the Securities were sold (excluding in all cases, however, any document
then incorporated by reference therein), insofar as such indemnity relates
to
any untrue or misleading statement or omission made in such preliminary
prospectus, Pricing Prospectus, Prospectus or Issuer Free Writing Prospectus,
if
a copy of a supplement or amendment to such preliminary prospectus, Pricing
Prospectus, Prospectus, or Issuer Free Writing Prospectus (excluding in all
cases, however, any document then incorporated by reference therein) (i) is
furnished on a timely basis by FPL to such Agent, (ii) is required to have
been
conveyed to such person by or on behalf of such Agent, at or prior to the entry
into the contract of sale of the Securities with such person, but was not so
conveyed (which conveyance may be oral (if permitted by law) or written) by
or
on behalf of such Agent and (iii) would have cured the defect giving rise to
such loss, claim, damage or liability. 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 Agent
or
any such officer, director or controlling person, and shall survive the delivery
of the Securities. Each Agent agrees promptly to notify FPL, and each other
Agent, of the commencement of any litigation or proceedings against it or any
such officer, director or controlling person in connection with the issuance
and
sale of the Securities.
(b) Each
Agent, 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, the Pricing Prospectus, the Prospectus or any Issuer Free Writing
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
Agent, expressly for use in connection with the preparation of any preliminary
prospectus, the Registration Statement, the Pricing Prospectus, the Prospectus
or any Issuer Free Writing Prospectus or any amendment or supplement to any
thereof. The indemnity agreement of each Agent 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 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 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 whom indemnity or
contribution shall be
14
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 this 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 the indemnifying party or 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 Agents 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 Agents 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 Agents on the other hand from
the offering of the Securities 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 a material
fact
or the omission or alleged omission to state a material fact relates to
information supplied by FPL or the Agents 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 Agents 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 Agent shall be
required to contribute in excess of the amount equal to the excess of
(i) the total price at which the Securities __________ by it were offered
to the public, over (ii) the amount of any damages which such Agent 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 Agent to
contribute pursuant to this subsection (d) are several and not joint and
shall be in the same proportion as such Agent’s obligation to _________ the
Securities with respect to which contribution is sought is to the total
principal amount of the Securities.]
10. Survival.
The indemnity agreements contained in Section 9 hereof and the representations,
warranties and other statements of FPL and the Agents set forth in this
agreement or any Terms Agreement or made by FPL and the Agents pursuant to
this
agreement or any Terms Agreement shall remain in full force and effect,
regardless of
15
(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.
(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 after the date of the Terms Agreement and prior to the
Settlement Date specified therein if:
(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
the
Terms 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 Agent, impractible
or inadvisable to proceed with the offering of the Securities or for the Agent
to enforce contracts for the sale of Securities; or
(ii) there
shall have been any downgrading or any notice of any intended or potential
downgrading in the ratings accorded to the Securities or any securities of
FPL
which are of the same class as the Securities by either [▇▇▇▇▇’▇ Investors
Service, Inc. (“▇▇▇▇▇’▇”)] 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
Securities or any securities of FPL which are of the same class as the
Securities, the effect of any such event specified in (i) or (ii) above being
such as to make it, in the reasonable judgment of the Agents, impracticable
or
inadvisable to proceed with the offering of the Securities or for the Agent
to
enforce contracts for the sale of the 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 or
any
Issuer Free Writing Prospectus prepared and furnished by FPL after the date
of
the Terms Agreement 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 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
16
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.
(a) 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
Agents 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 Securities from the Agents.
(b) FPL
acknowledges and agrees that the Agents are acting solely in the capacity of
arm’s length contractual counterparties to FPL with respect to the offering of
the Securities as contemplated by this agreement and not as a financial advisors
or fiduciaries to FPL in connection herewith. Additionally, none of the Agents
is advising FPL as to any legal, tax, investment, accounting or regulatory
matters in any jurisdiction in connection with the offering of the Securities
as
contemplated by this agreement. Any review by the Agents of FPL in connection
with the offering of the Securities contemplated by this agreement and the
transactions contemplated by this agreement will not be performed on behalf
of
FPL.
14. Notices.
Except as otherwise specifically provided herein or in the Procedures, all
communications hereunder shall be in writing, or by telegram and, if to the
Agents, shall be mailed or delivered to:
or,
if to
FPL, shall be mailed or delivered to it at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, 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.
17
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.
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Very
truly yours,
FLORIDA
POWER & LIGHT COMPANY
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|
By
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|
Accepted
and delivered as of the
date first written above
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18
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
_________, 20__ (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 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 supplemented, pursuant to the ______________ Supplemental
Indenture dated as of _________, 20__ (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”). Deutsche Bank Trust Company
Americas 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 Deutsche Bank Trust Company Americas, 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 an Assistant Treasurer.
In
connection with the qualification of the Securities for eligibility in the
book-entry system maintained by DTC, Deutsche Bank Trust Company Americas 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 Deutsche Bank Trust Company Americas (formerly
known as Bankers Trust Company) to DTC dated as of June 19, 1992, and a
Medium-Term Note Certificate Agreement between Deutsche Bank Trust Company
Americas (formerly known as 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
Mortgage 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 $[500,000,000]. If one or
more
Securities having an aggregate principal amount in excess of $[500,000,000]
would, but for the preceding sentence, be represented by a single Global
Security, then one Global Security will be issued to represent each
$[500,000,000] 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, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (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
Deutsche Bank Trust Company Americas and to DTC’s Underwriting Department a
written list of such 900 CUSIP numbers. Deutsche Bank Trust Company Americas
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 Deutsche Bank Trust Company Americas 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,
or Deutsche Bank Trust Company Americas or FPL will reserve additional CUSIP
numbers for assignment to Global Securities representing the Securities. Upon
obtaining such additional CUSIP numbers, Deutsche Bank Trust Company Americas
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.
A-2
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, Deutsche
Bank Trust Company Americas 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
Deutsche Bank Trust Company Americas (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 Deutsche Bank Trust Company
Americas) a written reorganization notice to the effect that such exchange
will
occur on such date. On the specified Exchange Date, Deutsche Bank Trust Company
Americas 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 $[500,000,000] in aggregate principal amount, one Global
Security will be authenticated and issued to represent each $[500,000,000]
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, 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.
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
A-3
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, Deutsche Bank Trust Company Americas shall deliver to DTC’s Dividend
Department, Standard & Poor’s 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, Deutsche Bank Trust
Company Americas shall deliver a similar listing to Standard & Poor’s and
Interactive Data Corporation on the day interest payment amounts are
determined.
Promptly
after each Record Date for each issue of Fixed Rate Securities, Deutsche Bank
Trust Company Americas 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. FPL will pay to Deutsche Bank Trust Company Americas the total
amount of interest due on such Interest Payment Date (other than on the Maturity
Date), and Deutsche Bank Trust Company Americas 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.
Deutsche
Bank Trust Company Americas 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.
A-4
Maturity
On
or
about the first business day of each month, Deutsche Bank Trust Company Americas
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
Deutsche Bank Trust Company Americas 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 Deutsche Bank Trust
Company Americas the principal amount of such Global Security, together with
interest and premium, if any, due on such Maturity Date or date of redemption.
Deutsche Bank Trust Company Americas 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, Deutsche Bank
Trust Company Americas will cancel such Global Security in accordance with
the
terms of the Mortgage. On the first business day of each month, Deutsche Bank
Trust Company Americas 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 Deutsche Bank Trust Company Americas in immediately
available funds for use by Deutsche Bank Trust Company Americas on such date.
FPL will make such payment on such Global Securities by wire transfer to
Deutsche Bank Trust Company Americas or by Deutsche Bank Trust Company Americas’
debiting the account of FPL maintained with Deutsche Bank Trust Company
Americas. FPL will confirm such instructions in writing to Deutsche Bank Trust
Company Americas. Prior to 10:00 a.m. (New York City time) on each Maturity
Date
or date of redemption or as soon as possible thereafter, Deutsche Bank Trust
Company Americas 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) and premium, if any, 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 Deutsche Bank Trust Company Americas 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
Deutsche Bank Trust Company Americas 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 _______________,
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
A-5
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:
▇. ▇▇▇▇
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
|
A-6
|
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. Deutsche
Bank Trust Company Americas will assign a CUSIP number to the Global Security
representing such Security and FPL will advise Deutsche Bank Trust Company
Americas 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. Deutsche Bank Trust Company Americas 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
Deutsche Bank Trust Company Americas 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. Deutsche
Bank Trust Company Americas 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 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. Deutsche
Bank Trust Company Americas 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].
A-7
▇. ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. will (by telecopy followed by an original copy)
provide Deutsche Bank Trust Company Americas with an opinion regarding
authentication.
G. DTC
will
credit such Security to Deutsche Bank Trust Company Americas’ participant
account at DTC.
H. Deutsche
Bank Trust Company Americas will enter an SDFS deliver order through DTC’s
Participant Terminal System instructing DTC to (i) debit such Security to
Deutsche Bank Trust Company Americas’ participant account and credit such
Security to such Agent’s participant account and (ii) debit such Agent’s
settlement account and credit Deutsche Bank Trust Company Americas’ 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 Deutsche Bank Trust Company Americas to DTC that (a) the Global
Security representing such Security has been issued and authenticated and
(b) Deutsche Bank Trust Company Americas is holding such Global Security
pursuant to the Secured Medium-Term Note Certificate Agreement between Deutsche
Bank Trust Company Americas 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. Deutsche
Bank Trust Company Americas will transfer to the account of FPL maintained
at
Deutsche Bank Trust Company Americas of [New York, New York], in immediately
available funds in the amount transferred to Deutsche Bank Trust Company
Americas in accordance with Settlement Procedure “H” upon receipt of such
funds.
▇. ▇▇▇▇
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.
Deutsche
Bank Trust Company Americas 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 Deutsche Bank Trust Company Americas 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
|
A-8
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 Deutsche
Bank Trust Company Americas 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 Deutsche Bank Trust Company Americas 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
Deutsche Bank Trust Company Americas or the Agent fails to enter an SDFS deliver
order with respect to a Security pursuant to Settlement Procedure “H” or “I”,
Deutsche Bank Trust Company Americas may deliver to DTC, through DTC’s
Participant Terminal System, as soon as practicable, a withdrawal message
instructing DTC to debit such Security to Deutsche Bank Trust Company Americas’
participant account, provided that Deutsche Bank Trust Company Americas’
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, Deutsche Bank Trust Company Americas will
mark
such Global Security “canceled”, make appropriate entries in Deutsche Bank Trust
Company Americas’ 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, Deutsche Bank Trust Company
Americas 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 ______________ of FPL by telephone, confirmed in writing, of such
failure. Thereafter, Deutsche Bank Trust Company Americas 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
Mortgage Trustee will provide, in accordance with Settlement Procedure “D”, for
the authentication and issuance of a Global Security
A-9
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 Deutsche Bank
Trust Company Americas and will furnish the Agents and Deutsche Bank Trust
Company Americas 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 Deutsche Bank Trust Company Americas 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 offer of a Security by such
Agent.
Authenticity
of Signatures
FPL
will
cause Deutsche Bank Trust Company Americas to furnish the Agents from time
to
time with the specimen signatures of each of Deutsche Bank Trust Company
Americas’ officers, employees and agents who have been authorized by Deutsche
Bank Trust Company Americas to authenticate Securities, but the Agents will
have
no
A-10
obligation
or liability to FPL or Deutsche Bank Trust Company Americas in respect of the
authenticity of the signature of any officer, employee or agent of FPL or
Deutsche Bank Trust Company Americas 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.
A-11
EXHIBIT
B
FPL
agrees to pay each Agent a commission in the range of the following percentages
of the aggregate principal amount of Securities sold to purchasers solicited
by
such Agent or, in the event the Securities are being sold at a discount, the
issue price thereof. The actual commission to be paid by FPL to each Agent
will
be set forth in separate agreements between FPL and each of the
Agents.
Commission
Rate Range
(as
a
percentage of aggregate principal amount of
Securities
sold or the issue price, as the case may be)
Term
9
months
to less than 12 months
12
months
to less than 18 months
18
months
to less than 24 months
2
years
to less than 3 years
3
years
to less than 4 years
4
years
to less than 5 years
5
years
to less than 6 years
6
years
to less than 7 years
7
years
to less than 8 years
8
years
to less than 9 years
9
years
to less than 10 years
10
years
to less than 15 years
15
years
to less than 20 years
20
years
to 30 years
EXHIBIT
C
TERMS
AGREEMENT
,
20__
Florida
Power & Light Company
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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 officer’s certificate, legal opinions and/or the accountant’s letter
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:
, 20
Florida
Power & Light Company
By
_________________________________
SCHEDULE
1 TO EXHIBIT C
Registration
Statement:
Nos.
333-______, 333-______-01, 333-______-02, 333-______-03, 333-______-04,
333-______-05, 333-______-06, 333-______-07 and 333-______-08
Mortgage:
Mortgage
and Deed of Trust dated as of January 1, 1944, between FPL and Deutsche Bank
Trust Company Americas (formerly known as 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:
C-2
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:
C-3