Exhibit 99.2
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STORM-RECOVERY PROPERTY SALE AGREEMENT
between
FPL RECOVERY FUNDING LLC,
as Issuer,
and
FLORIDA POWER & LIGHT COMPANY,
as Seller
Dated as of May 22, 2007
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TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS
ARTICLE TWO
CONVEYANCE OF STORM-RECOVERY PROPERTY
Section 2.01. Conveyance of Storm-Recovery Property..............................................................1
Section 2.02. Conditions to Conveyance of Series A Storm-Recovery Property.......................................3
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES OF SELLER
Section 3.01. Organization and Good Standing.....................................................................4
Section 3.02. Due Qualification..................................................................................4
Section 3.03. Power and Authority................................................................................4
Section 3.04. Binding Obligation.................................................................................4
Section 3.05. No Violation.......................................................................................4
Section 3.06. No Proceedings.....................................................................................5
Section 3.07. Approvals..........................................................................................5
Section 3.08. Storm-Recovery Property............................................................................5
Section 3.09. Solvency...........................................................................................7
Section 3.10. Limitations on Representations and Warranties......................................................8
Section 3.11. Nature of Representations and Warranties...........................................................8
ARTICLE FOUR
COVENANTS OF THE SELLER
Section 4.01. Seller's Existence.................................................................................8
Section 4.02. No Liens or Conveyances............................................................................8
Section 4.03. Use of Proceeds....................................................................................8
Section 4.04. Delivery of Collections............................................................................9
Section 4.05. Notice of Liens....................................................................................9
Section 4.06. Compliance with Law................................................................................9
Section 4.07. Covenants Related to Series A Storm-Recovery Property..............................................9
Section 4.08. Protection of Title...............................................................................10
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Section 4.09. Taxes.............................................................................................11
Section 4.10. Filings Pursuant to Financing Order...............................................................11
ARTICLE FIVE
ADDITIONAL UNDERTAKINGS OF THE SELLER
Section 5.01. Liability of the Seller; Indemnities..............................................................11
Section 5.02. Merger or Other Succession to, and Assumption of, the Obligations of the Seller...................13
Section 5.03. Limitation on Liability of the Seller and Others..................................................15
ARTICLE SIX
MISCELLANEOUS PROVISIONS
Section 6.01. Amendment.........................................................................................15
Section 6.02. Notices...........................................................................................16
Section 6.03. Assignment by Seller..............................................................................17
Section 6.04. Assignment to Trustee.............................................................................17
Section 6.05. Limitations on Rights of Others...................................................................17
Section 6.06. Severability......................................................................................17
Section 6.07. Separate Counterparts.............................................................................18
Section 6.08. Headings..........................................................................................18
Section 6.09. Governing Law.....................................................................................18
Section 6.10. Nonpetition Covenant..............................................................................18
Section 6.11. Further Assurances................................................................................18
Exhibit A: Form of ▇▇▇▇ of Sale..........................................................................A-1
Schedule 3.06...................................................................................................S-1
Appendix A: Master Definitions...................................................................Appendix A-1
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This STORM-RECOVERY PROPERTY SALE AGREEMENT, dated as of May 22,
2007, is between FPL Recovery Funding LLC, a Delaware limited liability company,
as issuer (the "Issuer"), and Florida Power & Light Company, a Florida
corporation, as seller hereunder (in such capacity, the "Seller").
WITNESSETH:
WHEREAS the Issuer desires to purchase Series A Storm-Recovery Property
from the Seller;
WHEREAS the Seller is willing to sell the Series A Storm-Recovery
Property to the Issuer;
WHEREAS, the Issuer, in order to finance the purchase of the Series A
Storm-Recovery Property, will issue the Bonds pursuant to the Indenture;
WHEREAS the Issuer, to secure its obligations under the Bonds and the
Indenture, will pledge its right, title and interest and grant a security
interest in, to and under the Series A Storm-Recovery Property to the Trustee
for the benefit of the Bondholders.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
(a) Definitions and Rules of Construction. Capitalized terms used
herein and not otherwise defined herein have the meanings assigned to them in
Appendix A hereto, provided that when we refer to Bondholders or Holders in this
Agreement, we refer only to Holders of the Bonds. This Agreement shall be
construed in accordance with the Rules of Construction.
ARTICLE TWO
CONVEYANCE OF STORM-RECOVERY PROPERTY
Section 2.01. Conveyance of Storm-Recovery Property.
(a) In consideration of the Issuer's payment to or upon the order of
the Seller of the Series A Purchase Price by wire transfer of funds immediately
available on the date hereof, subject to the conditions specified in Section
2.02, the Seller does hereby irrevocably sell, transfer, assign and otherwise
convey to the Issuer, without recourse (subject to the obligations of the Seller
herein), all right, title and interest of the Seller in, to and under the Series
A Storm-Recovery Property identified in the ▇▇▇▇ of Sale delivered pursuant to
Section 2.02(a) on the Closing Date (such sale, transfer, assignment and
conveyance of the Series A Storm-Recovery Property to include, to the fullest
extent permitted by the Statute and the UCC, the assignment of
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all revenues, collections, claims, rights, payments, money or proceeds of or
arising from the Series A Storm-Recovery Charges related to the Series A
Storm-Recovery Property, as the same may be adjusted from time to time, it being
understood that such Series A Storm-Recovery Property does not include the right
to any revenues, collections, claims, rights, payments, money or proceeds of or
arising from the Tax Charges). Such sale, transfer, assignment and conveyance of
the Series A Storm-Recovery Property is hereby expressly stated to be a sale or
other absolute transfer and, pursuant to Section 366.8260(5)(c) of the Statute
and the Financing Order, shall constitute a sale and absolute transfer of all of
the Seller's right, title and interest, in, to and under, and not a borrowing
secured by, the Series A Storm-Recovery Property. The preceding sentence is the
statement referred to in Section 366.8260(5)(c) of the Statute. The Seller
agrees and confirms that upon payment of the Series A Purchase Price and the
execution and delivery of this Agreement and the related ▇▇▇▇ of Sale, the
Seller shall have no right, title or interest in, to or under the Series A
Storm-Recovery Property.
(b) Subject to the conditions specified in Section 2.02, the Issuer
does hereby purchase the Series A Storm-Recovery Property from the Seller for an
amount equal to the Series A Purchase Price. The Seller and the Issuer each
acknowledge and agree that the purchase price for the Series A Storm-Recovery
Property sold pursuant to this Agreement is equal to its fair market value at
the time of sale.
(c) Notwithstanding the foregoing, if but only if, contrary to the
agreement and intent of the parties and the Financing Order, any sale, transfer,
assignment and conveyance of the Series A Storm-Recovery Property is determined
by a court not to be a sale and absolute transfer as contemplated by the parties
hereto and by the Statute, then
(i) (A) the Seller hereby appoints the Issuer as Seller's
Agent for purposes of this clause (c)(i), (B) the Issuer shall be
deemed to have issued and sold the Bonds for and on behalf of the
Seller as Seller's Agent in accordance with the Statute, the Financing
Order, the Indenture and the Underwriting Agreement, and (C) the Issuer
shall be deemed to have granted and does hereby grant, as of the date
hereof, for and on behalf of the Seller as Seller's Agent, a valid and
enforceable lien and first priority security interest in the Series A
Storm-Recovery Property to the Trustee for the benefit of the
Bondholders, in accordance with the Statute or the Financing Order and
the Indenture in connection with the issuance of the Bonds, but if a
court of competent jurisdiction determines that the provision in this
clause (c)(i) does not create a valid and enforceable lien, then
(ii) such sale, transfer, assignment and conveyance shall
be treated as a pledge of such Series A Storm-Recovery Property and the
Seller shall be deemed to have granted, and does hereby grant, as of
the date hereof a security interest to the Issuer in such Series A
Storm-Recovery Property to secure a payment obligation incurred by the
Seller in the amount paid by the Issuer for the Series A Storm-Recovery
Property; and in either case, the Series A Storm-Recovery Property and
the other Collateral pledged under the Indenture shall be the only
assets of the Seller pledged to the payment of the Bonds, and except as
otherwise provided in Section 5.01 of this Agreement, the Bondholders
will have no recourse to any other assets of the Seller.
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Section 2.02. Conditions to Conveyance of Series A Storm-Recovery
Property. The obligation of the Seller to sell, and the obligation of the Issuer
to purchase, the Series A Storm-Recovery Property upon the Closing Date shall be
subject to and conditioned upon the satisfaction or waiver of each of the
following conditions:
(a) on or prior to the Closing Date, the Seller shall deliver
to the Issuer a duly executed ▇▇▇▇ of Sale identifying the Series A
Storm-Recovery Property to be conveyed as of that date, substantially
in the form of Exhibit A hereto;
(b) as of the Closing Date, no breach by the Seller of its
representations, warranties or covenants in this Agreement shall exist
and the Seller shall have delivered to the Issuer and the Trustee an
Officer's Certificate to such effect and no Servicer Default shall have
occurred and be continuing;
(c) as of the Closing Date:
(i) the Issuer shall have sufficient funds
available to pay the Series A Purchase Price to be conveyed on
such date, and
(ii) all conditions set forth in the Indenture to
the issuance of the Bonds intended to provide such funds shall
have been satisfied or waived;
(d) on or prior to the Closing Date, the Seller shall have
taken all actions required under the Statute and the UCC, including the
filing of the storm-recovery property notice with the Florida Secured
Transactions Registry and any filings under the Statute and the UCC, to
transfer to the Issuer ownership of the Series A Storm-Recovery
Property to be conveyed on such date, free and clear of all Liens other
than Liens created by the Issuer pursuant to the Indenture, and the
Issuer shall have taken any action required for the Issuer to grant to
the Trustee a valid first priority perfected security interest in the
Collateral and maintain such security interest as of such date;
(e) the Seller shall have delivered to the Issuer such
Opinions of Counsel as the Issuer shall request;
(f) the Seller shall have delivered to the Trustee and the
Issuer an Officer's Certificate confirming the satisfaction of each
condition precedent specified in this Section 2.02; and
(g) the Seller shall have received the Series A Purchase Price
in funds immediately available on the Closing Date.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES OF SELLER
As of the Closing Date, the Seller makes the following representations
and warranties on which the Issuer has relied and will rely in acquiring the
Series A Storm-Recovery Property. The following representations and warranties
are made under existing law as in effect as of the
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Closing Date. The Seller shall not be in breach of any representation or
warranty herein as a result of a change in law occurring after the Closing Date.
The representations and warranties shall survive the sale of the Series A
Storm-Recovery Property to the Issuer and the pledge thereof to the Trustee
pursuant to the Indenture; provided, however, that such representations and
warranties shall cease to be in effect one year following the repayment or
redemption of all of the Bonds.
Section 3.01. Organization and Good Standing. The Seller is a
corporation duly organized and in good standing under the laws of the State of
Florida, with corporate power and authority to own its properties and conduct
its business as currently owned and such business as presently conducted.
Section 3.02. Due Qualification. The Seller is duly qualified to do
business as a foreign corporation in good standing or equivalent status, and has
obtained all necessary licenses and approvals, in all jurisdictions, other than
Florida, in which the ownership or lease of property or the conduct of its
business requires such qualifications, licenses or approvals (except where the
failure to so qualify and to obtain such licenses and approvals would not be
reasonably likely to have a material adverse effect on the Seller's business,
operations, assets, revenues, properties or prospects).
Section 3.03. Power and Authority. The Seller has the corporate power
and authority to execute and deliver this Agreement and to carry out its terms;
the Seller has full corporate power and authority to own the Series A
Storm-Recovery Property and sell and assign the Series A Storm-Recovery Property
to the Issuer, and the Seller has duly authorized such sale and assignment to
the Issuer by all necessary corporate action; and the execution, delivery and
performance of this Agreement has been duly authorized by the Seller by all
necessary corporate action.
Section 3.04. Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Seller enforceable against the Seller in
accordance with its terms, subject to bankruptcy, receivership, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
from time to time in effect and to general principles of equity (regardless of
whether considered in a proceeding in equity or at law).
Section 3.05. No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof do not
conflict with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under, the
Mortgage and Deed of Trust, the articles of incorporation or by-laws of the
Seller, or any other material indenture, agreement or other instrument to which
the Seller is a party or by which it is bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement or other instrument (except as contemplated in the
Indenture and as set forth in Section 4.02 of this Agreement); nor violate any
law or any order, rule or regulation applicable to the Seller of any
Governmental Authority having jurisdiction over the Seller or its properties.
The Series A Storm-Recovery Property is not subject to any Lien thereon,
including under the Mortgage and Deed of Trust, other than the Liens created
pursuant to the Indenture and the Statute.
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Section 3.06. No Proceedings. Except as disclosed in Schedule 3.06 and
to the Seller's knowledge, there are no proceedings or investigations pending
or, to the Seller's knowledge, threatened, before any Governmental Authority
having jurisdiction over the Seller or its properties:
(a) asserting the invalidity of any of the Basic Documents,
the Bonds, the Statute or the Financing Order;
(b) seeking to prevent the issuance of the Bonds or the
consummation of any of the transactions contemplated by the Basic
Documents;
(c) challenging the Seller's treatment of the Bonds as debt of
the Seller for federal and state tax purposes; or
(d) seeking any determination or ruling that could reasonably
be expected to materially and adversely affect the performance by the
Seller of its obligations under, or the validity or enforceability of,
the Basic Documents, the Bonds or the Financing Order.
Section 3.07. Approvals. Except for the filing of the storm-recovery
property notice with the Florida Secured Transactions Registry under the
Statute, no approval, authorization, consent, order or other action of, or
filing with, any Governmental Authority is required in connection with the
execution and delivery by the Seller of this Agreement, the performance by the
Seller of the transactions contemplated hereby or the fulfillment by the Seller
of the terms hereof, except those that have been obtained or made and those that
the Seller, in its capacity as Servicer under the Servicing Agreement, is
required to make in the future pursuant to the Servicing Agreement and post
closing filings required in connection therewith.
Section 3.08. Storm-Recovery Property.
(a) Information. All historical data used for the purpose of
calculating the Series A Storm-Recovery Charges in the Issuance Advice Letter
and Initial True-Up Adjustment Letter are true and correct, and the assumptions
used in such calculations are reasonable and made in good faith.
(b) Effect of Transfer. The sale, transfer, assignment and conveyance
herein contemplated constitutes a sale or other absolute transfer, of all right,
title and interest of the Seller in, to and under the Series A Storm-Recovery
Property from the Seller to the Issuer; upon execution and delivery of this
Agreement and the related ▇▇▇▇ of Sale, the Seller will have no right, title or
interest in, to or under the Series A Storm-Recovery Property; and the Series A
Storm-Recovery Property would not be part of the estate of the Seller as debtor
in the event of the filing of a bankruptcy petition by or against the Seller
under any bankruptcy law.
(c) Transfer Filings. The Seller is the sole owner of the Series A
Storm-Recovery Property sold to the Issuer on the Closing Date; and the Series A
Storm-Recovery Property will have been validly sold, assigned, transferred and
conveyed to the Issuer free and clear of all Liens other than Liens created by
the Issuer pursuant to the Indenture. All actions or filings, including the
filing of the storm-recovery property notice with the Florida Secured
Transactions Registry under the Statute and under the UCC, necessary in any
jurisdiction to give the Issuer a
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valid first priority perfected ownership interest in the Series A Storm-Recovery
Property and to grant to the Trustee a valid first priority perfected security
interest in the Series A Storm-Recovery Property, free and clear of all Liens of
the Seller or any other Person have been taken or made.
(d) Financing Order Irrevocable; Process Valid; No Litigation; etc.
(i) The Financing Order has been issued by the Commission in
accordance with the Statute, and such order and the process by which it
was issued comply with all applicable laws, rules and regulations. The
Financing Order has become effective pursuant to the Statute and is,
and as of the date of issuance of the Bonds will be, in full force and
effect and final and non-appealable.
(ii) As of the Closing Date, the Bonds will be entitled to the
protections provided by the Statute and, in accordance with the Statute
and the Financing Order is not subject to impairment and the right to
impose, collect and adjust the Series A Storm-Recovery Charge
authorized therein has become irrevocable and not subject to reduction,
impairment or adjustment, except for the Periodic Adjustments to the
Series A Storm-Recovery Charges provided for in the Financing Order.
(iii) (A) Under the Statute, the State of Florida may not take
or permit any action that would impair the value of the Series A
Storm-Recovery Property, reduce or alter, except for Periodic
Adjustments allowed under the Financing Order, or impair the Series A
Storm-Recovery Charges to be imposed, collected, and remitted for the
benefit of Bondholders, until any Principal, Interest, or other charges
incurred or contracts to be performed in connection with the Bonds held
by Bondholders are paid or performed in full; and
(B) under the contract clauses of the State of
Florida and the United States constitutions, the State of
Florida, including the Commission, could not take any action
that substantially impairs the rights of the Bondholders
unless such action is a reasonable exercise of the State of
Florida's sovereign powers and of a character reasonable and
appropriate to further a significant and legitimate public
purpose, and, under the takings clauses of the State of
Florida and the United States constitutions, the State of
Florida could not repeal or amend the Statute or take any
other action in contravention of its pledge in Section
366.8260(11) of the Statute if such action constitutes a
permanent appropriation of a substantial property interest of
Bondholders in the Storm-Recovery Property or substantially
impairs the value of the Storm-Recovery Property so as to
unduly interfere with the reasonable expectations of the
Bondholders arising from their investment in the Bonds, unless
just compensation, as determined by a court of competent
jurisdiction, is provided to Bondholders; provided that there
can be no assurance that even if a court were to award just
compensation it would be sufficient to pay the full amount of
principal of and interest on the Bonds, and provided further
that nothing in subparagraphs (A) or (B) shall preclude any
such limitation or alteration if full compensation is made by
law for the full protection of the Series A Storm-Recovery
Charges and
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of the Bondholders or any assignee or party entering into a
contract with the Seller.
(iv) There is no order by any court providing for the
revocation, alteration, limitation or other impairment of the Statute,
the Financing Order, the Series A Storm-Recovery Property or the Series
A Storm-Recovery Charges related thereto, or any rights arising under
any of them, or that seeks to enjoin the performance of any obligations
under the Financing Order which in any way is adverse to the position
of the Bondholders.
(v) No other approval, authorization, consent, order or other
action of, or filing with, any Governmental Authority is required in
connection with the creation or transfer of the Series A Storm-Recovery
Property, except those that have been obtained or made and those that
the Seller, in its capacity as Servicer under the Servicing Agreement,
is required to make in the future pursuant to the Servicing Agreement
and post closing filings required in connection therewith.
(vi) Apart from amending the constitution of the State of
Florida, the voters of the State of Florida have no right of referendum
or initiative to amend, repeal or revoke the Statute in a manner that
would impair the security of the Bondholders.
(e) Creation of Series A Storm-Recovery Property.
(i) For purposes of the Statute, the Series A Storm-Recovery
Property constitutes a present property right that will continue to
exist until the Bonds issued pursuant to the Financing Order are paid
in full and all Financing Costs of the Bonds have been recovered in
full; and
(ii) the Series A Storm-Recovery Property consists of (A) the
irrevocable right of the Seller under the Financing Order to impose,
collect and receive Series A Storm-Recovery Charges in the amount
necessary to provide for full recovery of Principal of and Interest on
the Bonds, together with other Financing Costs related to the Bonds;
(B) the right under the Financing Order to obtain Periodic Adjustments
of the Series A Storm-Recovery Charges; and (C) all revenues,
collections, payments, money and proceeds arising out of the rights and
interests described in (A) and (B); and the Series A Storm-Recovery
Property does not include any right to any revenues, collections,
claims, rights, payments, money or proceeds of or arising from the Tax
Charges.
Section 3.09. Solvency. After giving effect to the sale of the Series A
Storm-Recovery Property hereunder, the Seller:
(a) is solvent and expects to remain solvent;
(b) is adequately capitalized to conduct its business and
affairs considering its size and the nature of its business and
intended purposes;
(c) is not engaged and does not expect to engage in a business
for which its remaining property represents an unreasonably small
portion of its capital;
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(d) reasonably believes that it will be able to pay its debts
as they become due; and
(e) is able to pay its debts as they mature and does not
intend to incur, nor believe that it will incur, indebtedness that it
will not be able to repay at its maturity.
Section 3.10. Limitations on Representations and Warranties.
Notwithstanding the representations and warranties contained in this Article
Three, the Seller makes no representation or warranty that any amounts actually
collected arising from the Series A Storm-Recovery Charges will in fact be
sufficient to meet payment obligations on the Bonds or that the assumptions made
in calculating the Series A Storm-Recovery Charges will in fact be realized.
Section 3.11. Nature of Representations and Warranties. The
representations and warranties set forth in this Article Three, insofar as they
involve conclusions of law, are made not on the basis that the Seller purports
to be a legal expert or to be rendering legal advice, but rather to reflect the
parties' good faith understanding of the legal basis on which the parties are
entering into this Agreement and the other Basic Documents and the basis on
which the Holders are purchasing the Bonds, and to reflect the parties'
agreement that, if such understanding turns out to be incorrect or inaccurate,
the Seller will be obligated to indemnify the Issuer and its permitted assigns
(to the extent required by and in accordance with Section 5.01), and that the
Issuer and its permitted assigns will be entitled to enforce any rights and
remedies under the Basic Documents, on account of such inaccuracy to the same
extent as if the Seller had breached any other representations or warranties
hereunder.
ARTICLE FOUR
COVENANTS OF THE SELLER
Section 4.01. Seller's Existence. So long as any of the Bonds are
Outstanding, the Seller shall keep in full force and effect its existence as a
corporation and remain in good standing or equivalent status under the laws of
the jurisdiction of its organization, and shall obtain and preserve its
qualification to do business in each jurisdiction in which such qualification is
or will be necessary to protect the validity and enforceability of this
Agreement and each other instrument or agreement to which the Seller is a party
necessary to the proper administration of this Agreement and the transactions
contemplated hereby.
Section 4.02. No Liens or Conveyances. Except for the conveyances
hereunder, the Seller shall not sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist any Lien on, any of
the Series A Storm-Recovery Property, whether now existing or hereafter created,
or any interest therein. The Seller shall not at any time assert any Lien
against or with respect to any Series A Storm-Recovery Property, and shall
defend the right, title and interest of the Issuer and the Trustee, as assignee
of the Issuer, in, to and under the Series A Storm-Recovery Property, whether
now existing or hereafter created, against all claims of third parties claiming
through or under the Seller.
Section 4.03. Use of Proceeds. The Seller shall use proceeds from the
sale of the Series A Storm-Recovery Property in accordance with the Financing
Order.
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Section 4.04. Delivery of Collections. In the event that the Seller is
not the Servicer, and if the Seller receives collections of the Series A
Storm-Recovery Charges with respect to the Series A Storm-Recovery Property or
the proceeds thereof, the Seller shall pay the Servicer all payments received by
the Seller in respect thereof as soon as practicable after receipt thereof by
the Seller, but in no event later than two Business Days after Seller becomes
aware of such receipt.
Section 4.05. Notice of Liens. The Seller shall notify the Issuer and
the Trustee promptly after becoming aware of any Lien on any Series A
Storm-Recovery Property other than the conveyances hereunder or under the
Indenture.
Section 4.06. Compliance with Law. The Seller shall materially comply
with its organizational or governing documents and all laws, treaties, rules,
regulations and determinations of any Governmental Authority applicable to the
Seller, except to the extent that failure to so comply would not adversely
affect the Issuer's or the Trustee's interests in the Series A Storm-Recovery
Property under any of the Basic Documents, the timing or amount of Series A
Storm-Recovery Charges payable by Customers or the Seller's performance of its
material obligations hereunder or thereunder.
Section 4.07. Covenants Related to Series A Storm-Recovery Property.
(a) So long as any of the Bonds are Outstanding, the Seller shall:
(i) treat the Bonds as debt of the Issuer and not the Seller,
except for financial accounting or tax reporting purposes;
(ii) disclose in its financial statements that it is not the
owner of the Series A Storm-Recovery Property and that the assets of
the Issuer are not available to pay creditors of the Seller or any of
its Affiliates (other than the Issuer);
(iii) disclose the effects of all transactions between the
Seller and the Issuer in accordance with generally accepted accounting
principles; and
(iv) not own or purchase any Bonds.
(b) The Seller agrees that upon the sale by the Seller of the Series A
Storm-Recovery Property to the Issuer pursuant to this Agreement:
(i) to the fullest extent permitted by law, including the
Statute and applicable Commission Regulations, the Issuer shall have
all of the rights originally held by the Seller with respect to the
Series A Storm-Recovery Property, including the right to collect any
amounts payable by any Customer in respect of such Series A
Storm-Recovery Property, notwithstanding any objection or direction to
the contrary by the Seller; and
(ii) any payment by any Customer to the Issuer of Series A
Storm-Recovery Charges shall discharge such Customer's obligations in
respect of such Series A Storm-Recovery Property to the extent of such
payment, notwithstanding any objection or direction to the contrary by
the Seller.
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(c) So long as any of the Bonds are Outstanding,
(i) in all proceedings relating directly or indirectly to the
Series A Storm-Recovery Property the Seller shall: (A) affirmatively
certify and confirm that it has sold the Series A Storm-Recovery
Property to the Issuer (other than for financial accounting or tax
reporting purposes), and (B) not make any statement or reference in
respect of the Series A Storm-Recovery Property that is inconsistent
with the ownership thereof by the Issuer (other than as required for
financial accounting or tax reporting purposes);
(ii) the Seller shall not take any action in respect of the
Series A Storm-Recovery Property except as contemplated by the Basic
Documents; and
(iii) the Seller shall not sell Subsequent Storm-Recovery
Property in connection with the issuance of Additional Bonds nor shall
the Seller sell storm-recovery property under a Subsequent Financing
Order to any other entity unless the Rating Agency Condition shall have
been satisfied.
Section 4.08. Protection of Title. The Seller shall execute and file
such filings, and cause to be executed and filed such filings, and take all such
actions, all in such manner and in such places as may be required by law fully
to preserve, maintain, and protect the interests of the Issuer and the Trustee
in the Series A Storm-Recovery Property, including all filings (if any) required
under the Statute and the UCC relating to the transfer of the ownership of the
Series A Storm-Recovery Property by the Seller to the Issuer and the pledge of
the Series A Storm-Recovery Property by the Issuer to the Trustee. The Seller
shall deliver (or cause to be delivered) to the Issuer and the Trustee
file-stamped copies of, or filing receipts for, any document filed as provided
above, as soon as available following such filing. The Seller shall institute
any action or proceeding necessary to compel the performance by the Commission
or the State of Florida of any of their material obligations or duties under the
Statute and the Financing Order, and the Seller agrees to take such legal or
administrative actions, including defending against or instituting and pursuing
legal actions and appearing or testifying at hearings or similar proceedings, as
may be reasonably necessary:
(a) to attempt to protect the Issuer and the Bondholders from
claims, state actions or other actions or proceedings of third parties
which, if successfully pursued, would result in a breach of any
representation or warranty set forth in Article Three; or
(b) to attempt to block or overturn any attempts to cause a
repeal of, modification of or supplement to the Statute or the
Financing Order, or the rights of Bondholders by legislative enactment
or constitutional amendment that would be adverse to the Issuer, the
Trustee or the Bondholders.
The costs of any such actions or proceedings shall be reimbursed by the
Issuer to the Seller from amounts on deposit in the Collection Account as an
Operating Expense. The Seller's obligations pursuant to this Section 4.08 shall
survive and continue notwithstanding that the payment of Operating Expenses
pursuant to the Indenture may be delayed (it being understood and agreed that
the Seller may be required to temporarily advance its own funds to satisfy its
obligations hereunder). The Seller designates the Issuer as its agent and
attorney-in-fact to
10
execute any filings of financing statements, continuation statements or other
instruments required of the Issuer pursuant to this Section 4.08, it being
understood that the Issuer shall have no obligation to execute any such
instruments.
Section 4.09. Taxes. So long as any of the Bonds are Outstanding, the
Seller shall, and shall cause each of its subsidiaries to, pay all material
taxes, assessments and governmental charges imposed upon it or any of its
properties or assets or with respect to any of its franchises, business, income
or property before any penalty accrues thereon if the failure to pay any such
taxes, assessments and governmental charges would, after any applicable grace
periods, notices or other similar requirements, result in a Lien on the Series A
Storm-Recovery Property; provided that no such tax need be paid if the Seller or
one of its Affiliates is contesting the same in good faith by appropriate
proceedings promptly instituted and diligently conducted and if the Seller or
such Affiliate has established appropriate reserves as shall be required in
conformity with generally accepted accounting principles.
Section 4.10. Filings Pursuant to Financing Order. The Seller shall
comply with all filing requirements, including any making post closing filings,
in accordance with the Financing Order.
ARTICLE FIVE
ADDITIONAL UNDERTAKINGS OF THE SELLER
The Seller hereby undertakes the obligations contained in this Article
Five and agrees that the Issuer shall have the right to assign its rights with
respect to such obligations to the Trustee for the benefit of the Bondholders.
Section 5.01. Liability of the Seller; Indemnities.
(a) The Seller shall be liable in accordance herewith only to the
extent of the obligations specifically undertaken by the Seller under this
Agreement.
(b) The Seller shall indemnify the Issuer and the Trustee, for itself
and on behalf of the Bondholders, and each of the Issuer's and the Trustee's
respective officers, directors, managers, employees and agents for, and defend
and hold harmless each such Person from and against, any and all taxes (other
than any taxes imposed on Bondholders as a result of their ownership of Bonds)
that may at any time be imposed on or asserted against any such Person under
existing law as of the Closing Date as a result of the sale and assignment of
the Series A Storm-Recovery Property by the Seller to the Issuer, the
acquisition or holding of the Series A Storm-Recovery Property by the Issuer or
the issuance and sale by the Issuer of the Bonds, including any sales, gross
receipts, general corporation, single business, personal property, privilege,
franchise or license taxes, but excluding any taxes imposed as a result of a
failure of such person to properly withhold or remit taxes imposed with respect
to payments on any Bond, it being understood that the Bondholders shall be
entitled to enforce their rights against the Seller under this Section 5.01(b)
solely through a cause of action brought for their benefit by the Trustee.
11
(c) The Seller shall indemnify the Issuer and the Trustee for itself
and on behalf of the Bondholders, and each of the Issuer's and the Trustee's
respective officers, directors, managers, employees and agents for, and defend
and hold harmless each such Person from and against, (i) any and all amounts of
Principal of and Interest on the Bonds not paid when due or when scheduled to be
paid in accordance with their terms and the amount of any deposits to the Issuer
required to have been made in accordance with the terms of the Basic Documents
which are not made when so required, in each case as a result of the Seller's
breach of any of its representations, warranties or covenants contained in this
Agreement, and (ii) any and all Losses that may be imposed on or asserted
against any such Person, other than any liabilities, obligations or claims for
or payments of Principal of or Interest on the Bonds, together with any
reasonable costs and expenses actually incurred by such Person, as a result of
the Seller's material breach of any of its representations, warranties or
covenants contained in this Agreement, except to the extent of Losses either
resulting from the willful misconduct, bad faith or gross negligence of such
Indemnified Person or resulting from a breach of a representation or warranty
made by such Indemnified Person in any of the Basic Documents that gives rise to
Seller's breach, and provided that, with respect to a material breach of a
covenant, the Seller has first had a 30-day opportunity to cure such breach
beginning with the receipt of a notice of breach from Issuer and has failed to
cure such breach within such period; and provided further that the Bondholders
shall be entitled to enforce their rights against the Seller under this Section
5.01(c) solely through a cause of action brought for their benefit by the
Trustee.
(d) The Seller shall pay any and all taxes levied or assessed upon all
or any part of the Issuer's property or assets based on existing law as of the
Closing Date.
(e) Notwithstanding Section 5.01(b) and (c), the Seller shall not be
liable for any Losses resulting solely from a downgrade in the ratings on the
Bonds or for any consequential, incidental or indirect damages, including any
loss of market value of the Bonds, resulting solely from any downgrade of the
ratings of the Bonds.
(f) If the Seller remains an entity subject to the Commission's
regulatory authority as a public utility (or otherwise for ratemaking purposes),
the Seller acknowledges and agrees that the Commission may, subject to the
outcome of an appropriate Commission proceeding, take such action as it deems
necessary or appropriate under its regulatory authority to require the Seller to
make Customers whole for any Losses they incur by reason of
(i) any failure of the Seller's material representations or
warranties set forth in this Agreement (other than the Seller's
representations and warranties set forth in Section 3.08(d) and Section
3.08(e)), or
(ii) any material breach of the Seller's covenants contained
in this Agreement (other than the Seller's covenant set forth in the
third sentence of Section 4.08),
including in each case (without limitation) Losses attributable to higher
Storm-Recovery Charges imposed on Customers. The Seller acknowledges and agrees
that such action by the Commission may include, but is not limited to,
adjustments to the Seller's other regulated rates and charges or credits to
Customers.
12
(g) If the Seller does not remain an entity subject to the Commission's
regulatory authority as a public utility (or otherwise for ratemaking purposes),
the Seller shall indemnify the Commission, on behalf of Customers, for any
Losses Customers incur by reason of
(i) any failure of the Seller's material representations or
warranties set forth in this Agreement (other than the Seller's
representations and warranties set forth in Section 3.08(d) and Section
3.08(e)), or
(ii) any material breach of the Seller's covenants contained
in this Agreement (other than the Seller's covenant set forth in the
third sentence of Section 4.08),
including without limitation Losses attributable to higher Storm-Recovery
Charges imposed on Customers.
(h) Indemnification under this Section 5.01, shall survive the
resignation or removal of the Trustee and the termination of this Agreement and
shall include reasonable fees and expenses of investigation and litigation
(including reasonable attorneys' fees and expenses actually incurred). The
Seller shall not indemnify any party under this Section 5.01 for any changes in
law after the Closing Date, whether such changes in law are effected by means of
any legislative enactment, constitutional amendment or any final and
non-appealable judicial decision.
(i) The indemnification obligation of the Seller under this Section
5.01 shall be pari passu with all other general unsecured obligations of the
Seller.
Section 5.02. Merger or Other Succession to, and Assumption of, the
Obligations of the Seller. Any Person:
(a) into which the Seller may be merged or consolidated and
which succeeds to all or the major part of the electric distribution
business of the Seller,
(b) which results from the division of the Seller into two or
more Persons and which succeeds to all or the major part of the
electric distribution business of the Seller,
(c) which may result from any merger or consolidation to which
the Seller shall be a party and which succeeds to all or the major part
of the electric distribution business of the Seller,
(d) which may succeed to the properties and assets of the
Seller substantially as a whole and which succeeds to all or the major
part of the electric distribution business of the Seller, or
(e) which may otherwise succeed to all or the major part of
the electric distribution business of the Seller,
which Person in any of the foregoing cases executes an agreement of assumption
to perform every obligation of the Seller under this Agreement, shall be the
successor to the Seller
13
hereunder without the execution or filing of any document or any further act by
any of the parties to this Agreement; provided, however, that:
(i) immediately after giving effect to such
transaction, no representation or warranty made pursuant to
Article Three shall have been breached and no Servicer
Default, and no event that, after notice or lapse of time, or
both, would become a Servicer Default, shall have occurred and
be continuing,
(ii) the Seller shall have delivered to the Issuer
and the Trustee an Officer's Certificate and an Opinion of
Counsel each stating that such consolidation, reorganization,
merger or succession and such agreement of assumption comply
with this Section 5.02 and that all conditions precedent, if
any, provided for in this Agreement relating to such
transaction have been complied with;
(iii) the Seller shall have delivered to the Issuer
and the Trustee an Opinion of Counsel stating that, in the
opinion of such counsel, either:
(A) all filings to be made by the Seller or
the Seller, in its capacity as Servicer, including
filings under the Statute and the UCC, that are
necessary or advisable fully to preserve and protect
fully the respective interests of the Issuer and the
Trustee in the Series A Storm-Recovery Property have
been executed and filed, and reciting the details of
such filings, or
(B) no such action is necessary to preserve
and protect such interests;
(iv) the Rating Agencies shall have received prior
written notice of such transaction; and
(v) the Seller shall have delivered to the Issuer and
the Trustee an opinion of Independent tax counsel (as selected
by, and in form and substance reasonably satisfactory to, the
Seller, and which may be based on a ruling from the Internal
Revenue Service) to the effect that, for federal income tax
purposes, such consolidation or other succession to, and
assumption of, the obligations of the Seller will not result
in a material adverse federal income tax consequence to the
Seller, the Issuer, the Trustee or the holders of the
Outstanding Bonds.
The Seller shall not consummate any transaction referred to in clauses (a), (b),
(c), (d) or (e) above except upon execution of the above described agreement of
assumption and compliance with subclauses (i), (ii) , (iii), (iv) and (v) of
clause (e). When any Person acquires the properties and assets of the Seller
substantially as a whole and becomes the successor to the Seller in accordance
with the terms of this Section 5.02, then upon the satisfaction of all of the
other conditions of this Section 5.02, the Seller shall automatically and
without further notice be released from its obligations hereunder.
14
Section 5.03. Limitation on Liability of the Seller and Others. The
Seller and any director, officer, employee or agent of the Seller may rely in
good faith on the advice of counsel or on any document of any kind, prima facie
properly executed and submitted by any Person, respecting any matters arising
hereunder. Subject to Section 4.08, and except as expressly provided herein, the
Seller shall not be under any obligation to appear in, prosecute or defend any
legal action in accordance with this Agreement and that in its opinion may
involve it in any expense or liability; provided, however, that nothing in this
Section 5.03 shall limit the Seller's liabilities or obligations of the Seller
to indemnify set forth in Section 5.01 of this Agreement.
ARTICLE SIX
MISCELLANEOUS PROVISIONS
Section 6.01. Amendment.
(a) Subject to Section 6.01(b), this Agreement may be amended by the
Seller and the Issuer, with the consent of the Trustee and the satisfaction of
the Rating Agency Condition. Promptly after the execution of any such amendment
or consent, the Issuer shall furnish written notification of the substance of
such amendment or consent to each of the Rating Agencies. Prior to the execution
of any amendment to this Agreement, the Issuer and the Trustee shall be entitled
to receive and rely upon an Opinion of Counsel stating that the execution of
such amendment is authorized or permitted by this Agreement and Section 3.06 of
the Servicing Agreement. Subject to Section 6.01(b), the Issuer and the Trustee
may, but shall not be obligated to, enter into any such amendment which affects
their own rights, duties or immunities under this Agreement or otherwise.
(b) Notwithstanding anything to the contrary in this Section 6.01, no
amendment or modification of this Agreement shall be effective except upon
satisfaction of the conditions precedent in this paragraph (b).
(i) At least 15 days prior to the effectiveness of any such
amendment or modification and after obtaining the other necessary
approvals set forth in Section 6.01(a) (except that the consent of the
Trustee may be subject to the consent of Bondholders if such consent is
required or sought by the Trustee in connection with such amendment or
modification) the Seller shall have delivered to the Commission's
executive director and general counsel written notification of any
proposed amendment, which notification shall contain:
(A) a reference to Docket No. 060038-EI;
(B) an Officer's Certificate stating that the
proposed amendment or modification has been approved by all
parties to this Agreement; and
(C) a statement identifying the person to whom the
Commission is to address any response to the proposed
amendment or to request additional time.
(ii) If the Commission or an authorized representative of the
Commission, within 15 days (subject to extension as provided in clause
(iii)) of receiving a notification
15
complying with subparagraph (i), shall have delivered to the office of
the person specified in clause (i)(C) a written statement that the
Commission might object to the proposed amendment or modification,
then, except as provided in clause (iv) below, such proposed amendment
or modification shall not be effective unless and until the Commission
subsequently delivers a written statement that it does not object to
such proposed amendment or modification; or
(iii) If the Commission or an authorized representative of the
Commission, within 15 days of receiving a notification complying with
subparagraph (i), shall have delivered to the office of the person
specified in clause (i)(C) a written statement requesting an additional
amount of time not to exceed thirty days in which to consider such
proposed amendment or modification, then such proposed amendment or
modification shall not be effective if, within such extended period,
the Commission shall have delivered to the office of the person
specified in clause (i)(C) a written statement as described in
subparagraph (ii), unless and until the Commission subsequently
delivers a written statement that it does not object to such proposed
amendment or modification.
(iv) If (A) the Commission or an authorized representative of
the Commission, shall not have delivered written notice that the
Commission might object to such proposed amendment or modification
within the time periods described in subparagraphs (ii) or (iii),
whichever is applicable, or (B) the Commission or authorized
representative of the Commission, has delivered such written notice but
does not within 60 days of the delivery of the notification in (a)
above, provide subsequent written notice confirming that it does in
fact object and the reasons therefore or advise that it has initiated a
proceeding to determine what action it might take with respect to the
matter, then the Commission shall be conclusively deemed not to have
any objection to the proposed amendment or modification and such
amendment or modification may subsequently become effective upon
satisfaction of the other conditions specified in Section 6.01(a).
(v) Following the delivery of a statement from the Commission
or an authorized representative of the Commission to the Seller under
subparagraph (ii), the Seller and the Issuer shall have the right at
any time to withdraw from the Commission further consideration of any
proposed amendment.
(c) For the purpose of this Section 6.01, an "authorized representative
of the Commission" means any person authorized to act on behalf of the
Commission, as evidenced by an Opinion of Counsel (which may be the general
counsel) to the Commission.
Section 6.02. Notices. Unless otherwise specifically provided herein,
all notices, directions, consents and waivers required under the terms and
provisions of this Agreement shall be in English and in writing, and any such
notice, direction, consent or waiver may be given by United States first-class
mail, reputable overnight courier service, facsimile transmission or electronic
mail (confirmed by telephone, United States first-class mail or reputable
overnight courier service in the case of notice by facsimile transmission or
electronic mail) or any other customary means of communication, and any such
notice, direction, consent or waiver shall be effective when delivered or
transmitted, or if mailed, five days after deposit in the United States
first-class mail with proper postage for first-class mail prepaid:
16
(a) in the case of the Seller, at Florida Power & Light
Company, Attention: Treasurer, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇.
(b) in the case of the Issuer, at FPL Recovery Funding LLC,
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Treasurer,
(c) in the case of Moody's, at ▇▇▇▇▇'▇ Investors Service,
Inc., ABS Monitoring Department, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇,
(d) in the case of Standard & Poor's, at Standard & Poor's
Ratings Services, a Division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed
Surveillance Department,
(e) in the case of Fitch, at Fitch, Inc., ▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ABS Surveillance;
(f) in the case of the Trustee, at the address provided for
notices or communications to the Trustee in the Indenture;
(g) in the case of the Commission, at Florida Public Service
Commission, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Executive Director and General Counsel;
or, as to each of the foregoing, at such other address as shall be designated by
written notice to the other parties.
Section 6.03. Assignment by Seller. Subject to Sections 5.02 and 6.04,
this Agreement may not be assigned by the Seller.
Section 6.04. Assignment to Trustee. The Seller hereby acknowledges and
consents to the pledge, assignment and grant of a security interest by the
Issuer to the Trustee pursuant to the Indenture for the benefit of the
Bondholders and the Trustee of all right, title and interest of the Issuer in,
to and under the Series A Storm-Recovery Property and the proceeds thereof and
the assignment of any or all of the Issuer's rights hereunder to the Trustee.
Section 6.05. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Seller, the Issuer, the Commission,
on behalf of itself and Customers, and the Trustee, on behalf of itself and the
Bondholders, and nothing in this Agreement, whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
claim in the Collateral or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
Section 6.06. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
17
Section 6.07. Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 6.08. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 6.09. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA, WITHOUT REFERENCE TO ITS
CONFLICT OF LAWS PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 6.10. Nonpetition Covenant. Notwithstanding any prior
termination of this Agreement or the Indenture, the Seller hereby covenants and
agrees that it shall not, prior to the date which is one year and one day after
the termination of the Indenture and the payment in full of the Bonds and any
other amounts owed under the Indenture, including any amounts owed to
third-party credit enhancers, acquiesce, petition or otherwise invoke or cause
the Issuer to invoke the process of any Governmental Authority for the purpose
of commencing or, sustaining an involuntary case against, the Issuer under any
federal or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Issuer or any substantial part of the property of the Issuer, or ordering
the winding up or liquidation of the affairs of the Issuer.
Section 6.11. Further Assurances. The Issuer and the Seller agree to
execute, acknowledge, deliver, file and record, or cause to be executed,
acknowledged, delivered, filed and recorded, such further documents or other
papers, and to do all such things and acts, as any other party may reasonably
request in order to carry out the provisions and purposes of this Agreement and
the transactions contemplated hereby. In furtherance of the foregoing, and not
in limitation thereof, each of the parties agrees to furnish to the others such
powers of attorney as may be necessary, where a party is acting as agent for
another, to enable the parties to carry out their respective duties and realize
the benefits provided by this Agreement.
18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective duly authorized officers as of
the date and year first above written.
FPL RECOVERY FUNDING LLC,
as Issuer
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
FLORIDA POWER & LIGHT COMPANY,
as Seller
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
EXHIBIT A
▇▇▇▇ OF SALE
For good and valuable consideration the receipt of which is hereby
acknowledged, Florida Power & Light Company, a Florida corporation (the
"Seller"), does hereby sell, assign, transfer and convey to FPL Recovery Funding
LLC, a Delaware limited liability company (the "Issuer"), without recourse
except as provided in the Sale Agreement referred to below, all of the Seller's
right, title and interest in, to and under the Series A Storm-Recovery Property,
which sale, assignment, transfer and conveyance of the Series A Storm-Recovery
Property shall include, as provided in the Statute, the sale, assignment,
transfer and conveyance of all of the Seller's right, title and interest in, to
and under all revenues, collections, payments, money or proceeds arising under
or with respect to the Series A Storm-Recovery Charges related to the Series A
Storm-Recovery Property, as such Series A Storm-Recovery Charges may be adjusted
from time to time in accordance with the Statute and the Financing Order, to
have and to hold the same unto the Issuer and to the successors and assigns of
the Issuer, forever, it being understood that such Series A Storm-Recovery
Property does not include the right to any revenues, collections, claims,
rights, payments, money or proceeds of or arising from the Tax Charges.
The foregoing sale, transfer, assignment and conveyance of the Series A
Storm-Recovery Property is hereby expressly stated to be a sale or other
absolute transfer and, pursuant to Section 366.8260(5)(c) of the Statute and
Financing Order, shall constitute a sale and absolute transfer of all of the
Seller's right, title and interest in, to and under, and not a borrowing secured
by, the Series A Storm-Recovery Property. The preceding sentence is the
statement referred to in Section 366.8260(5)(c) of the Statute and in the
Financing Order.
Capitalized terms used herein and not defined shall have the meanings
set forth in the Series A Storm-Recovery Property Sale Agreement, dated as of
May 22, 2007 (the "Sale Agreement") between the Issuer and the Seller, as
the same may be amended or supplemented from time to time.
This ▇▇▇▇ of Sale is governed by the laws of the State of Florida.
A-1
IN WITNESS WHEREOF, the Seller has duly executed and delivered this
▇▇▇▇ of Sale this __________ day of __________, ____.
FLORIDA POWER & LIGHT COMPANY,
as Seller
By:
-----------------------------------------
Name:
Title:
Accepted this __________ day of __________, ____.
FPL RECOVERY FUNDING LLC,
as Issuer
By:
--------------------------------------
Name:
Title:
A-2
SCHEDULE 3.06
S-1
APPENDIX A
MASTER DEFINITIONS
See Servicing Agreement, Exhibit 99.1