EXHIBIT 1
FPL GROUP CAPITAL INC
DEBENTURES
ABSOLUTELY AND UNCONDITIONALLY GUARANTEED BY
FPL GROUP, INC.
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UNDERWRITING AGREEMENT
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[DATE]
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To the Representatives named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
1. Introductory. FPL Group Capital Inc, a Florida corporation ("FPL Group
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Capital") and a wholly owned subsidiary of FPL Group, Inc., a Florida
corporation ("FPL Group" or the "Guarantor"), proposes to issue and sell its
debt securities of the series designation[s], with the terms and in the
principal amount[s] specified in Schedule I hereto (the "Debentures"). The
Debentures will be absolutely and unconditionally guaranteed by FPL Group
pursuant to and in accordance with the terms of the Guarantee (as hereinafter
defined). Each of FPL Group Capital and the Guarantor hereby confirms its
agreement with the several Underwriters (as defined below) as set forth herein.
The term "Underwriters" as used herein shall be deemed to mean the firm or
corporation or the several firms or corporations named in Schedule II hereto and
any underwriter substituted as provided in Section 7 hereof and the term
"Underwriter" shall be deemed to mean one of such Underwriters. If the firm or
firms listed in Schedule I hereto (the "Representatives") are the same as the
firm or firms listed in Schedule II hereto, then the terms "Underwriters" and
"Representatives", as used herein, shall each be deemed to refer to such firm or
firms. The Representatives represent that they have been authorized by each
Underwriter to enter into this agreement on behalf of such Underwriter and to
act for it in the manner herein provided. All obligations of the Underwriters
hereunder are several and not joint. If more than one firm is named in Schedule
I hereto, any action under or in respect of this agreement may be taken by such
firms jointly as the Representatives or by one of the firms acting on behalf of
the Representatives and such action will be binding upon all the Underwriters.
2. Description of Debentures and Guarantee. The Debentures [of each
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series] will be a series of debentures issued by FPL Group Capital under an
Indenture, dated as of June 1, 1999, to The Bank of New York, as Trustee, in
substantially the form heretofore delivered to the Representatives (together
with any amendments or supplements thereto, the "Indenture"). The Debentures
will be absolutely and unconditionally guaranteed by FPL Group pursuant to, and
in accordance with, the terms of a Guarantee Agreement, dated June 1, 1999,
between FPL Group, as Guarantor, and The Bank of New York, as Guarantee Trustee,
in substantially the form heretofore delivered to the Representatives (the
"Guarantee").
3. Representations and Warranties of FPL Group Capital. FPL Group Capital
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represents and warrants to the several Underwriters that:
(a) FPL Group Capital and FPL Group have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form
S-3, including a prospectus (the "Registration Statement Nos. 333-_____ and
333-_____-01"), for the registration of $500,000,000 aggregate principal
amount of FPL Group Capital debt securities, which are guaranteed as to
payment of principal, interest and premium, by FPL Group (the "Debt
Securities"), under the Securities Act of 1933, as amended (the "Securities
Act"), which registration statement has been declared effective by the
Commission. References herein to the term "Registration Statement" as of
any given date shall mean Registration Statement Nos. 333-_____ and
333-_____-01, as amended or supplemented to such date, including, as of
such date, all documents incorporated by reference therein pursuant to Item
12 of Form S-3 ("Incorporated Documents"). References herein to the term
"Prospectus" as of any given date shall mean the prospectus forming a part
of Registration Statement Nos. 333-_____ and 333-_____-01, as supplemented
by a prospectus supplement relating to the Debentures proposed to be filed
pursuant to Rule 424 of the general rules and regulations of the Securities
Act ("Rule 424"), and as further amended or supplemented as of such date
(other than amendments or supplements relating to (i) Debt Securities other
than the Debentures or, (ii) when referring to the Prospectus relating to a
particular offering of the Debentures, Debentures other than the Debentures
being offered on such date), including all Incorporated Documents.
References herein to the term "Effective Date" shall be deemed to refer to
the later of the time and date that Registration Statement Nos. 333-_____
and 333-_____- 01 was declared effective and the time and date of the
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filing thereafter of FPL Group's most recent Annual Report on Form 10-K, if
such filing is made prior to the Closing Date (as hereinafter defined).
Prior to the termination of the offering of the Debentures and Guarantee,
FPL Group Capital will not file any amendment to the Registration Statement
or any amendment or supplement to the Prospectus without prior notice to
the Representatives, and to Winthrop, Stimson, Xxxxxx & Xxxxxxx, who are
acting as Counsel for the several Underwriters ("Counsel for the
Underwriters"), or any such amendment or supplement to which the
Representatives shall reasonably object in writing, or which shall be
unsatisfactory to Counsel for the Underwriters.
(b) The Registration Statement at the Effective Date, fully complied,
and the Prospectus, both on the date it is filed with the Commission
pursuant to Rule 424 (such date, the "424 Date") and at the Closing Date,
and the Registration Statement and the Indenture at the Closing Date, will
fully comply, in all material respects with the applicable provisions of
the Securities Act and the Trust Indenture Act of 1939, as amended (the
"1939 Act"), respectively, and, in each case, the applicable instructions,
rules and regulations of the Commission thereunder; the Registration
Statement, at the Effective Date, did not, and at the Closing Date, the
Registration Statement will not, contain an untrue statement of a material
fact, or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; the Prospectus, on
the 424 Date and at the Closing Date, will not include an untrue statement
of a material fact or omit to state a material fact necessary in order to
make the statements contained therein, in the light of the circumstances
under which they were made, not misleading; provided, that the foregoing
representations and warranties in this subsection (b) shall not apply to
statements or omissions made in reliance upon and in conformity with
information furnished in writing to FPL Group Capital or FPL Group by or on
behalf of any Underwriter through the Representatives 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, of the respective Trustees under the Indenture
and the Guarantee or to any statements or omissions made in the Prospectus
relating to the DTC Book-Entry-Only System that are based solely on
information contained in published reports of DTC.
(c) The consummation of the transactions herein contemplated and the
fulfillment of the terms hereof on the part of FPL Group Capital to be
fulfilled have been duly authorized by all necessary corporate action of
FPL Group Capital in accordance with the provisions of its Articles of
Incorporation (the "FPL Group Capital Charter"), by-laws and applicable
law, and the Debentures when issued and delivered as provided herein will
constitute valid and binding obligations of FPL Group Capital enforceable
in accordance with their terms, except as limited or affected by
bankruptcy, insolvency, reorganization, receivership, moratorium or other
laws affecting creditors' rights and remedies generally and general
principles of equity.
(d) The consummation of the transactions herein contemplated and the
fulfillment of the terms hereof and the compliance by FPL Group Capital
with all the terms and provisions of the Indenture will not result in a
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breach of any of the terms or provisions of, or constitute a default under,
the FPL Group Capital Charter or by-laws, or any indenture, mortgage, deed
of trust or other agreement or instrument to which FPL Group Capital is now
a party, or violate any law or any order, rule, decree or regulation
applicable to FPL Group Capital of any Federal or state court, regulatory
board or body or administrative agency having jurisdiction over FPL Group
Capital or any of its property, except where such breach, default or
violation would not have a material adverse effect on the business,
properties or financial condition of FPL Group Capital and its subsidiaries
taken as a whole.
(e) FPL Group Capital and its direct significant subsidiaries (as
defined in Regulation S-X (17 CFR Part 210)) have good and marketable title
to all of the capital stock of their respective direct significant
subsidiaries (as defined in Regulation S-X) free and clear of all liens and
encumbrances, except such as do not materially affect the value thereof.
(f) Each of FPL Group Capital's direct and indirect significant
subsidiaries (as defined in Regulation S-X) has been duly incorporated, is
validly existing and is in good standing under the laws of its respective
jurisdiction of incorporation, and is duly qualified to do business and is
in good standing as a foreign corporation in each jurisdiction in which its
respective ownership of properties or the conduct of its respective
businesses requires such qualification, except where the failure so to
qualify would not have a material adverse effect on the business,
properties or financial condition of FPL Group Capital and its subsidiaries
taken as a whole, and has the corporate power and authority necessary to
own or hold its respective properties and to conduct the businesses in
which it is engaged.
4. Representations and Warranties of FPL Group. FPL Group represents and
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warrants to the several Underwriters that:
(a) FPL Group has filed with the Commission the Registration Statement
for the registration of the Guarantee with respect to the Debt Securities
under the Securities Act, which registration statement has been declared
effective by the Commission. Prior to the termination of the offering of
the Debentures and Guarantee, FPL Group will not file any amendment to the
Registration Statement or any amendment or supplement to the Prospectus
without prior notice to the Representatives, and to Counsel for the
Underwriters, or any such amendment or supplement to which the
Representatives shall reasonably object in writing, or which shall be
unsatisfactory to Counsel for the Underwriters.
(b) The Registration Statement at the Effective Date fully complied,
and the Prospectus, both on the 424 Date and at the Closing Date, and the
Registration Statement and the Guarantee at the Closing Date, will fully
comply, in all material respects with the applicable provisions of the
Securities Act and the 1939 Act, respectively and, in each case, the
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applicable instructions, rules and regulations of the Commission
thereunder; at the Effective Date, the Registration Statement did not, and
at the Closing Date, the Registration Statement will not, contain an untrue
statement of a material fact, or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; the Prospectus, on the 424 Date and at the Closing Date, will
not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained therein,
in the light of the circumstances under which they were made, not
misleading; 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 Group Capital or FPL Group by or on
behalf of any Underwriter through the Representatives 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, of the respective Trustees under the Indenture
and the Guarantee, or to any statements or omissions made in the Prospectus
relating to the DTC Book-Entry-Only System that are based solely on
published reports of DTC.
(c) The financial statements included as part of or incorporated by
reference in the Registration Statement present fairly the consolidated
financial condition and results of operations of FPL Group and its
subsidiaries taken as a whole, at the respective dates and for the
respective periods to which they apply; such financial statements have been
prepared in each case in accordance with generally accepted accounting
principles consistently applied throughout the periods involved except as
otherwise indicated in the Registration Statement; and Deloitte & Touche
LLP, who have audited the audited financial statements of FPL Group, are
independent public accountants as required by the Securities Act and the
Exchange Act and the rules and regulations of the Commission thereunder.
(d) Except as reflected in or contemplated by the Registration
Statement and the Prospectus, since the respective most recent dates as of
which information is given in the Registration Statement and Prospectus,
there has not been any material adverse change in the business, properties
or financial condition of FPL Group and its subsidiaries taken as a whole,
nor has any transaction been entered into by FPL Group or any of its
subsidiaries that is material to FPL Group and its subsidiaries taken as a
whole, other than changes and transactions contemplated by the Registration
Statement and Prospectus, and transactions in the ordinary course of
business. FPL Group and its subsidiaries have no contingent obligation
material to FPL Group and its subsidiaries taken as a whole, which is not
disclosed in the Registration Statement and Prospectus.
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(e) The consummation of the transactions herein contemplated and the
fulfillment of the terms hereof on the part of FPL Group to be fulfilled
have been duly authorized by all necessary corporate action of FPL Group in
accordance with the provisions of its Articles of Incorporation (the "FPL
Group Charter"), by-laws and applicable law, and the Guarantee when issued
and delivered as provided herein will constitute a valid and binding
obligation of FPL Group enforceable in accordance with its terms, except as
limited or affected by bankruptcy, insolvency, reorganization,
receivership, moratorium or other laws affecting creditors' rights and
remedies generally and general principles of equity.
(f) The consummation of the transactions herein contemplated and the
fulfillment of the terms hereof and the compliance by FPL Group with all
the terms and provisions of the Guarantee will not result in a breach of
any of the terms or provisions of, or constitute a default under, the FPL
Group Charter or by-laws, or any indenture, mortgage, deed of trust or
other agreement or instrument to which FPL Group or any of its subsidiaries
is now a party, or violate any law or any order, rule, decree or regulation
applicable to FPL Group or any of its subsidiaries of any Federal or state
court, regulatory board or body or administrative agency having
jurisdiction over FPL Group 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 Group and its subsidiaries taken as a whole.
(g) FPL Group has good and marketable title to all of the common stock
of its direct and indirect significant subsidiaries (as defined in
Regulation S-X) free and clear of all liens and encumbrances, except such
as do not materially affect the value thereof.
(h) The Guarantee has been duly authorized, executed and delivered by
FPL Group and constitutes a valid and binding agreement of FPL Group
enforceable in accordance with its terms, except as limited or affected by
bankruptcy, insolvency, reorganization, receivership, moratorium or other
laws affecting creditors' rights and remedies generally and general
principles of equity. Neither the execution and delivery of the Guarantee
nor the performance by FPL Group of any of its obligations thereunder
requires any consent, approval, authorization, registration or
qualification of or by any governmental agency or body.
(i) Each of FPL Group's direct and indirect significant subsidiaries
(as defined in Regulation S-X) has been duly incorporated, is validly
existing and is in good standing under the laws of its respective
jurisdiction of incorporation, and is duly qualified to do business and is
in good standing as a foreign corporation in each jurisdiction in which its
respective ownership of properties or the conduct of its respective
businesses requires such qualification, except where the failure so to
qualify would not have a material adverse effect on the business,
properties or financial condition of FPL Group and its subsidiaries taken
as a whole, and has the corporate power and authority necessary to own or
hold its respective properties and to conduct the businesses in which it is
engaged.
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5. Purchase and Sale. On the basis of the representations and warranties
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herein contained, and subject to the terms and conditions in this agreement set
forth, FPL Group Capital agrees to sell to the respective Underwriters named in
Schedule II hereto, severally and not jointly, and the respective Underwriters
agree, severally and not jointly, to purchase from FPL Group Capital, the
respective principal amounts of Debentures set forth opposite their respective
names in Schedule II hereto at the purchase price[s] for those Debentures set
forth in Schedule I hereto.
6. Public Offering. The Underwriters propose to make a bona fide public
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offering of the Debentures and Guarantee as set forth in the Prospectus, such
public offering to be made as soon after the execution of this agreement as
practicable, subject, however, to the terms and conditions of this agreement.
7. Time and Place of Closing, Default of Underwriter. Delivery of the
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Debentures [of each series] and payment therefor by certified or official bank
check or checks, payable to the order of FPL Group Capital in New York Clearing
House or similar next day funds, or by wire transfer in Federal funds, shall be
made at the time, date and place set forth in Schedule I, or at such other time,
date or place as shall be agreed upon in writing by FPL Group Capital and the
Representatives. The hour and date of such delivery and payment are herein
called the "Closing Date".
The Debentures shall be delivered to the Representatives for the respective
accounts of the Underwriters against payment by the several Underwriters through
the Representatives of the purchase price therefor. Delivery of the Debentures
shall be made through the facilities of The Depository Trust Company unless the
Representatives and FPL Group Capital shall otherwise agree. For the purpose of
expediting the checking of the Debentures by the Representatives on behalf of
the Underwriters, FPL Group Capital agrees to make such Debentures available to
the Representatives for such purpose at the office of Xxxxxx Xxxx & Priest LLP,
00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, not later than 2:00 P.M., New
York City time, on the business day preceding the Closing Date, or at such other
time and place as may be agreed upon by FPL Group Capital and the
Representatives.
If any Underwriter shall fail to purchase and pay for the principal amount
of the Debentures which such Underwriter has agreed to purchase and pay for
hereunder (otherwise than by reason of any failure on the part of FPL Group
Capital or FPL Group to comply with any of the provisions contained herein), the
non-defaulting Underwriters shall be obligated to take up and pay for (in
addition to the respective principal amount of the Debentures [of each series]
set forth opposite their respective names in Schedule II hereto) the principal
amount of the Debentures [of each series] which such defaulting Underwriter or
Underwriters failed to take up and pay for, up to a principal amount thereof
equal to, in the case of each such remaining Underwriter, ten percent (10%) of
the aggregate principal amount of the Debentures [of each series] set forth
opposite the name of such remaining Underwriter in said Schedule II, and such
remaining Underwriters shall have the right, within 24 hours of receipt of such
notice, either to take up and pay for (in such proportion as may be agreed upon
among them), or to substitute another Underwriter or Underwriters, satisfactory
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to FPL Group Capital, to take up and pay for, the remaining principal amount of
the Debentures [of each series] which the defaulting Underwriter or Underwriters
agreed but failed to purchase. If any unpurchased Debentures still remain, then
FPL Group Capital shall be entitled to a further period of 24 hours within which
to procure another party or other parties, members of the National Association
of Securities Dealers, Inc. (or, if not members of such Association, who are not
eligible for membership in said Association and who agree (i) to make no sales
within the United States, its territories or its possessions or to persons who
are citizens thereof or residents therein and (ii) in making sales to comply
with said Association's Conduct Rules) and satisfactory to the Representatives
to purchase such Debentures on the terms herein set forth. In the event that,
within the respective prescribed periods, the non-defaulting Underwriters notify
FPL Group Capital that they have arranged for the purchase of such Debentures,
or FPL Group Capital notifies the non-defaulting Underwriters that it has
arranged for the purchase of such Debentures, the non-defaulting Underwriters or
FPL Group Capital shall have the right to postpone the Closing Date for a period
of not more than three full business days beyond the expiration of the
respective prescribed periods in order to effect whatever changes may thus be
made necessary in the Registration Statement or the Prospectus or in any other
documents or arrangements. In the event that neither the non-defaulting
Underwriters nor FPL Group Capital has arranged for the purchase of such
Debentures by another party or parties as above provided, then this agreement
shall terminate without any liability on the part of FPL Group Capital, FPL
Group or any Underwriter (other than an Underwriter which shall have failed or
refused, otherwise than for some reason sufficient to justify, in accordance
with the terms hereof, the cancellation or termination of its obligations
hereunder, to purchase and pay for the Debentures which such Underwriter has
agreed to purchase as provided in Section 5 hereof), except as otherwise
provided in subsections (c) and (e) of Section 8 hereof.
8. Covenants of FPL Group Capital and FPL Group. FPL Group Capital and
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FPL Group agree with the several Underwriters that:
(a) FPL Group Capital and FPL Group will promptly file the Prospectus
with the Commission pursuant to Rule 424 under the Securities Act.
(b) FPL Group Capital will deliver to the Representatives and to
Counsel for the Underwriters one signed copy of the Registration Statement
or, if a signed copy is not available, one conformed copy of the
Registration Statement certified by an officer of FPL Group Capital to be
in the form as originally filed, including all Incorporated Documents and
exhibits, except those incorporated by reference, which relate to the
Debentures, including a signed or conformed copy of each consent and
certificate included therein or filed as an exhibit thereto. FPL Group
Capital will deliver to the Underwriters through the Representatives as
soon as practicable after the date of this agreement as many copies of the
Prospectus as the Representatives may reasonably request for the purposes
contemplated by the Securities Act. FPL Group Capital and FPL Group will
promptly advise the Representatives of the issuance of any stop order under
the Securities Act with respect to the Registration Statement or the
institution of any proceedings therefor of which it shall have received
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notice prior to the termination of the offering of the Debentures
hereunder. FPL Group Capital and FPL Group will each use its best efforts
to prevent the issuance of any such stop order and to secure the prompt
removal thereof, if issued.
(c) FPL Group Capital will pay all expenses in connection with (i) the
preparation and filing of the Registration Statement and Prospectus, (ii)
the issuance and delivery of the Debentures and Guarantee as provided in
Section 7 hereof, and (iii) the printing and delivery to the
Representatives for the account of the Underwriters, in reasonable
quantities, of copies of the Registration Statement and the Prospectus and
the Indenture. FPL Group Capital will pay all taxes, if any (but not
including any transfer taxes), on the issuance of the Debentures and
Guarantee. FPL Group Capital shall not, however, be required to pay any
amount for any expenses of the Representatives or any of the Underwriters,
except as provided in Sections 9 and 10 hereof and except that if this
agreement shall be terminated in accordance with the provisions of Sections
9, 10 or 12 hereof, FPL Group Capital will pay the fees and disbursements
of Counsel for the Underwriters, whose fees and disbursements the
Underwriters agree to pay in any other event. Neither FPL Group Capital nor
FPL Group shall in any event be liable to any of the several Underwriters
for damages on account of loss of anticipated profits.
(d) During a period of nine months after the date of this agreement,
if any event relating to or affecting FPL Group Capital or FPL Group shall
occur which, in the opinion of FPL Group Capital or FPL Group, should be
set forth in a supplement to or an amendment of the Prospectus in order to
make the Prospectus not misleading in light of the circumstances when it is
delivered to a purchaser, FPL Group Capital and FPL Group will forthwith at
their expense prepare and furnish to the Representatives a reasonable
number of copies of a supplement or supplements or an amendment or
amendments to the Prospectus which will supplement or amend the Prospectus
so that as supplemented or amended it will not include any untrue statement
of a material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading; provided that
should such event relate solely to activities of any of the Underwriters,
then the Underwriters shall assume the expense of preparing and furnishing
copies of any such amendment or supplement. In case any Underwriter is
required to deliver a Prospectus after the expiration of nine months after
the date of this agreement, FPL Group Capital upon the request of the
Representatives will furnish to the Representatives, at the expense of such
Underwriter, a reasonable quantity of a supplemented or amended Prospectus
or supplements or amendments to the Prospectus complying with Section 10 of
the Securities Act.
(e) FPL Group Capital and FPL Group will furnish such proper
information as may be lawfully required and otherwise cooperate in
qualifying the Debentures and Guarantee for offer and sale under the blue
sky laws of such jurisdictions as the Representatives may designate and
will pay filing fees in the aggregate not exceeding $5,000, provided that
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neither FPL Group Capital nor FPL Group shall 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 Group Capital or FPL Group to be unduly
burdensome.
(f) FPL Group will make generally available to its security holders
(including holders of the Debentures), as soon as practicable, an earnings
statement (which need not be audited, unless required so to be under
Section 11(a) of the Securities Act) of FPL Group in reasonable detail
covering the 12 months beginning not later than the first day of the
quarter next succeeding the month in which occurred the effective date of
the Registration Statement as defined in Rule 158 under the Securities Act.
9. Conditions of Underwriters' Obligations. The several obligations of
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the Underwriters to purchase and pay for the Debentures shall be subject to the
accuracy of, and compliance with, the representations and warranties of FPL
Group Capital and FPL Group contained herein on the Closing Date, to the
performance by FPL Group Capital and FPL Group of their obligations to be
performed hereunder on or prior to the Closing Date and to the following
conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date; no order of the
Commission directed to the adequacy of any Incorporated Document shall have
been issued; no proceedings for either such purpose shall be pending
before, or threatened by, the Commission on such date; and the
Representatives shall have received, prior to payment for the Debentures, a
certificate dated the Closing Date and signed by an officer of FPL Group
Capital and FPL Group to the effect that, to the best of their knowledge,
no such order is in effect and no proceedings for either such purpose are
pending before, or to the knowledge of FPL Group Capital and FPL Group
threatened by, the Commission.
(b) At the Closing Date, the Representatives shall have received from
Steel Xxxxxx & Xxxxx LLP, counsel to FPL Group Capital and FPL Group, a
favorable opinion (with a copy thereof for each of the Underwriters), which
opinion will not pass upon compliance with provisions of the blue sky laws
of any jurisdiction, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) FPL Group Capital and FPL Group are validly organized and
existing corporations in good standing under the laws of the State of
Florida, and have valid franchises, licenses and permits adequate for
the conduct of their respective businesses;
(ii) FPL Group Capital and FPL Group are corporations duly
authorized by their respective Articles of Incorporation to conduct
the businesses which they are now conducting as set forth in the
Prospectus;
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(iii) the Indenture has been duly and validly authorized by all
necessary corporate action, has been duly and validly executed and
delivered, and is a valid and binding instrument enforceable in
accordance with its terms, except as limited or affected by
bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws affecting creditors' rights and remedies generally and
general principles of equity;
(iv) the Debentures [of each series] are valid and binding
obligations of FPL Group Capital enforceable in accordance with their
respective terms, except as limited or affected by bankruptcy,
insolvency, reorganization, receivership, moratorium or other laws
affecting creditors' rights and remedies generally and general
principles of equity;
(v) the Guarantee has been duly and validly authorized by all
necessary corporate action, has been duly and validly executed and
delivered and is a valid and binding obligation of FPL Group
enforceable in accordance with its terms, except as limited or
affected by bankruptcy, insolvency, reorganization, receivership,
moratorium or other laws affecting creditors rights and remedies
generally and general principles of equity;
(vi) to the best of the knowledge of said Counsel, FPL Group
Capital and its direct significant subsidiaries (as defined in
Regulation S-X) have good and marketable title to all of the capital
stock of their respective direct significant subsidiaries (as defined
in Regulation S-X) free and clear of all liens and encumbrances,
except such as do not materially affect the value thereof, and FPL
Group has good and marketable title to all of the common stock of its
direct and indirect significant subsidiaries (as defined in Regulation
S-X) free and clear of all liens and encumbrances, except such as do
not materially affect the value thereof;
(vii) the Registration Statement, at the Effective Date, and the
Prospectus, at the 424 Date (except as to the financial statements and
other financial or statistical data contained or incorporated by
reference therein, upon which such opinion need not pass and except
for those parts of the Registration Statement that constitute the
Statements of Eligibility on Form T-1, upon which such opinion need
not pass), complied as to form in all material respects with the
applicable requirements of the Securities Act and the applicable
instructions, rules and regulations of the Commission thereunder and
the Incorporated Documents (except as to the financial statements and
other financial or statistical data contained or incorporated by
reference therein, upon which such opinion need not pass), at the time
they were filed with the Commission, complied as to form in all
material respects with the applicable requirements of the Exchange Act
and the applicable instructions, rules and regulations of the
Commission thereunder; the Registration Statement has become, and is,
at the Closing Date, effective under the Securities Act, and to the
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best of the knowledge of said Counsel, no proceedings for a stop order
with respect to the Registration Statement are pending or threatened
under Section 8 of the Securities Act;
(viii) the consummation of the transactions herein contemplated
and the fulfillment of the terms hereof and the compliance by FPL
Group Capital with all the terms and provisions of the Indenture, and
by FPL Group with all the terms and provisions of the Guarantee, will
not result in a breach of any of the terms or provisions of, or
constitute a default under, the FPL Group Capital Charter or by-laws
or the FPL Group Charter or by-laws, or any indenture, mortgage, deed
of trust or other agreement or instrument the terms of which are known
to such Counsel to which FPL Group Capital or FPL Group or any of
their respective subsidiaries, as the case may be, 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 Group
Capital or FPL Group, each together with its respective subsidiaries
taken as a whole, as the case may be;
(ix) nothing has come to the attention of said Counsel that would
lead them to believe that the Registration Statement (except as to the
financial statements and other financial or statistical data contained
or incorporated by reference therein, upon which such opinion need not
pass and except for those parts of the Registration Statement that
constitute the Statements of Eligibility on Form T-1, upon which such
opinion need not pass), at the Effective Date, contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, at the 424 Date and at
the Closing Date (except as aforesaid), included or includes, any
untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, provided that such Counsel may state that their belief is
based upon their participation in the preparation of the Registration
Statement and the Prospectus and any supplements and amendments
thereto and review and discussion of the contents thereof, but is
without independent check or verification except as specified;
(x) to the best of the knowledge of said Counsel, no approval,
authorization, consent or order of any public board or body (other
than in connection or in compliance with the provisions of the blue
sky laws of any jurisdiction) is legally required for the
authorization of the issuance and sale of the Debentures [of any
series] and Guarantee;
(xi) the statements made in the Prospectus under the headings
"Description of Offered Debt Securities", "Certain Terms of the
Debentures" and "Description of the Guarantee", insofar as they
purport to constitute summaries of the documents referred to therein,
12
constitute accurate summaries of the terms of such documents in all
material respects;
(xii) the Indenture and the Guarantee are duly qualified under
the 1939 Act;
(xiii) this agreement has been duly and validly authorized,
executed and delivered by FPL Group Capital and FPL Group; and
(xiv) except as stated or referred to in the Prospectus, there
are no material pending legal proceedings to which FPL Group Capital
or any of its subsidiaries or FPL Group or any of its subsidiaries is
a party or of which property of FPL Group Capital or any of its
subsidiaries or FPL Group or any of its subsidiaries is the subject
which if determined adversely would have a material effect on FPL
Group Capital and its subsidiaries taken as a whole or FPL Group and
its subsidiaries taken as a whole, as the case may be, and, to the
best of the knowledge of said Counsel, no such proceeding is known to
be contemplated by governmental authorities.
In said opinion such Counsel may rely as to all matters of New York
law on an opinion of Xxxxxx Xxxx & Priest LLP.
(c) At the Closing Date, the Representatives shall have received from
Xxxxxx Xxxx & Priest LLP, counsel to FPL Group Capital and FPL Group, a
favorable opinion (with a copy thereof for each of the Underwriters), which
opinion will not pass upon compliance with provisions of the blue sky laws
of any jurisdiction, in form and substance satisfactory to Counsel for the
Underwriters, to the same effect with respect to matters enumerated in
paragraphs (iii) to (xiii) of subsection (b) of this Section 9. In said
opinion, such counsel may rely as to all matters of Florida law on an
opinion of Steel Xxxxxx & Xxxxx LLP, and will not pass upon the
incorporation of FPL Group or FPL Group Capital or franchises.
(d) At the Closing Date, the Representatives shall have received from
Counsel for the Underwriters a favorable opinion (with a copy thereof for
each of the Underwriters) to the same effect with respect to the matters
enumerated in (iii)-(v), (vii) and (ix)-(xiii) of subsection (b) of this
Section 9. In said opinion, such Counsel may rely as to all matters of
Florida law on the opinion of Steel Xxxxxx & Xxxxx LLP, and will not pass
upon the incorporation of FPL Group or FPL Group Capital or franchises.
(e) At the Closing Date, the Representatives shall have received from
Deloitte & Touche LLP a letter (with copies thereof for each of the
Underwriters) to the effect that (i) they are independent public
accountants with respect to FPL Group 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 of
13
FPL Group audited by them and incorporated by reference in the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and the published
rules and regulations thereunder; (iii) on the basis of performing a review
of interim financial information as described in SAS No. 71, Interim
Financial Information, on the unaudited condensed consolidated financial
statements of FPL Group incorporated by reference in the Prospectus,
reading the latest available interim unaudited consolidated financial
statements of FPL Group since the close of FPL Group's most recent audited
fiscal year, reading the minutes and consents of the Board of Directors and
the Finance Committee of the Board of Directors and Shareholders of FPL
Group since the end of the most recent audited fiscal year, and inquiries
of officials of FPL Group who have responsibility for financial and
accounting matters (it being understood that the foregoing procedures do
not constitute an audit made in accordance with generally accepted auditing
standards and they would not necessarily reveal matters of significance
with respect to the comments made in such letter, and accordingly that
Deloitte & Touche LLP makes no representation as to the sufficiency of such
procedures for the several Underwriters' purposes), nothing has come to
their attention which caused them to believe that (a) the unaudited
condensed consolidated financial statements of FPL Group incorporated by
reference in the Prospectus (1) do not comply as to form in all material
respects with the applicable accounting requirements of the Securities Act
and the Exchange Act and the published rules and regulations thereunder and
(2) except as disclosed in the Prospectus, are not in conformity with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited consolidated financial statements of
FPL Group incorporated by reference in the Prospectus; (b) at the date of
the latest available interim balance sheet read by them and at a specified
date not more than five days prior to the Closing Date there was any change
in the capital stock or long-term debt of FPL Group and its subsidiaries,
or decrease in their consolidated net assets, in each case as compared with
amounts shown in the most recent condensed consolidated balance sheet
incorporated by reference in the Prospectus, except in all instances for
changes or decreases which the Prospectus discloses have occurred or may
occur, or as occasioned by the declaration, provision for, or payment of
dividends, or as occasioned by the sale of common stock pursuant to any
employee benefit plan or the dividend reinvestment plan or the repurchase
of common stock by FPL Group or which are described in such letter; (c) for
the period from the date of the most recent condensed consolidated balance
sheet incorporated by reference in the Prospectus to the latest available
interim balance sheet read by them and for the period from the date of the
latest available interim balance sheet read by them to a specified date not
more than five days prior to the Closing Date, there were any decreases, as
compared with the corresponding period in the preceding year, in total
consolidated operating revenues or in net income, except in all instances
for decreases which the Prospectus discloses have occurred or may occur, or
which are described in such letter; and (iv) they have carried out certain
procedures and made certain findings, as specified in such letter, with
respect to certain amounts included in the Prospectus and Exhibit 12 to the
Registration Statement and such other items as the Representatives may
reasonably request.
14
(f) Since the respective most recent dates as of which information is
given in the Registration Statement and Prospectus, and up to the Closing
Date, (i) there shall have been no material adverse change in the business,
properties or financial condition of (a) FPL Group Capital and its
subsidiaries taken as a whole or (b) FPL Group and its subsidiaries taken
as a whole, except in each case as reflected in or contemplated by the
Registration Statement and Prospectus, and (ii) there shall have been no
material transaction entered into by (a) FPL Group Capital or any of its
subsidiaries that is material to FPL Group Capital and its subsidiaries
taken as a whole or (b) FPL Group or any of its subsidiaries that is
material to FPL Group and its subsidiaries taken as a whole, in each case
other than transactions disclosed by the Registration Statement and the
Prospectus, and transactions in the ordinary course of business; and at the
Closing Date, the Representatives shall have received a certificate to such
effect from each of FPL Group Capital and FPL Group signed by an officer of
FPL Group Capital or FPL Group, as the case may be.
(g) All legal proceedings to be taken in connection with the issuance
and sale of the Debentures and the Guarantee shall have been satisfactory
in form and substance to Counsel for the Underwriters.
In case any of the conditions specified above in this Section 9 shall not
have been fulfilled, this agreement may be terminated by the Representatives,
upon mailing or delivering written notice thereof to FPL Group Capital. Any such
termination shall be without liability of any party to any other party except as
otherwise provided in subsections (c) and (e) of Section 8 hereof and except
that in the event of such termination by the Representatives, FPL Group Capital
shall reimburse the Underwriters for out-of-pocket expenses reasonably incurred
by them in connection with the transactions contemplated by this agreement, not
in excess, however, of an aggregate of $5,000.
10. Condition of FPL Group Capital's and FPL Group's Obligations. The
------------------------------------------------------------
obligation of FPL Group Capital to deliver the Debentures and the obligation of
FPL Group to deliver the Guarantee shall be subject to the following condition:
(a) No stop order suspending the effectiveness of the Registration
Statement, and no order directed to the adequacy of any Incorporated
Document, shall be in effect at the Closing Date, and no proceedings for
either such purpose shall be pending before, or threatened by, the
Commission on such date.
In case the condition specified in this Section 10 shall not have been
fulfilled, this agreement may be terminated by FPL Group Capital and FPL Group
upon mailing or delivering written notice thereof to the Representatives. Any
such termination shall be without liability of any party to any other party,
except as otherwise provided in subsections (c) and (e) of Section 8 hereof and
except that in the event of such termination FPL Group Capital shall reimburse
the Underwriters for out-of-pocket expenses reasonably incurred by them in
connection with the transactions contemplated by this agreement, not in excess,
however, of an aggregate of $5,000.
15
11. Indemnification.
---------------
(a) FPL Group Capital and FPL Group, jointly and severally, agree to
indemnify and hold harmless each Underwriter and each person who controls
any Underwriter within the meaning of Section 15 of the Securities Act
against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the
Securities Act or any other statute or common law and to reimburse each
such Underwriter and controlling person for any legal or other expenses
(including, to the extent hereinafter provided, reasonable counsel fees)
incurred by them in connection with investigating any such losses, claims,
damages or liabilities or in connection with defending any actions, insofar
as such losses, claims, damages, liabilities, expenses or actions arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus (if used prior to the
Effective Date of the Registration Statement), including all Incorporated
Documents, or in the Registration Statement or the Prospectus, or the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that the indemnity agreement contained in
this paragraph shall not apply to any such losses, claims, damages,
liabilities, expenses or actions arising out of, or based upon, any such
untrue statement or alleged untrue statement, or any such omission or
alleged omission, if such statement or omission was made in reliance upon
and in conformity with information furnished herein, to FPL Group Capital
or to FPL Group in writing by or on behalf of any Underwriter, through the
Representatives, for use in connection with the preparation of the
Registration Statement or the Prospectus or any amendment or supplement to
either thereof, or arising out of, or based upon, statements in or
omissions from the Statements of Eligibility on Form T-1 of the respective
Trustees under the Indenture and the Guarantee; and provided, further, that
the indemnity agreement contained in this paragraph in respect of any
preliminary prospectus shall not inure to the benefit of any Underwriter
(or of any person controlling such Underwriter) on account of any such
losses, claims, damages, liabilities, expenses or actions arising from the
sale of the Debentures [of any series] to any person if such Underwriter
shall have failed to send or give to such person (i) with or prior to the
written confirmation of such sale, a copy of the Prospectus or the
Prospectus as amended or supplemented, if any amendments or supplements
thereto shall have been furnished at or prior to the time of written
confirmation of the sale involved, but exclusive of any Incorporated
Documents unless the alleged omission or alleged untrue statement with
respect to such preliminary prospectus is not corrected in the Prospectus
or the Prospectus as amended or supplemented at the time of confirmation,
or (ii) with or prior to the delivery of such Debentures to such person, a
copy of any amendment or supplement to the Prospectus which shall have been
furnished subsequent to such written confirmation and prior to the delivery
of such Debentures to such person, but exclusive of any Incorporated
Documents unless the alleged omission or alleged untrue statement with
respect to such preliminary prospectus was not corrected in such amendment
or supplement at the time of such delivery of such Debentures. The
indemnity agreement of FPL Group Capital and FPL Group contained in this
16
paragraph and the representations and warranties of FPL Group Capital and
FPL Group contained in Section 3 and Section 4 hereof, respectively, shall
remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or any such
controlling person, and shall survive the delivery of the Debentures [of
each series]. The Underwriters agree promptly to notify each of FPL Group
Capital and FPL Group, and each other Underwriter, of the commencement of
any litigation or proceedings against them or any of them or any such
controlling person in connection with the issuance and sale of the
Debentures [of any series].
(b) Each Underwriter agrees to indemnify and hold harmless each of FPL
Group Capital and FPL Group, their respective officers and directors, each
other Underwriter, and each person who controls any thereof within the
meaning of Section 15 of the Securities Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of
them may become subject under the Securities Act or other statute or common
law, and to reimburse each of them for any legal or other expenses
(including, to the extent hereinafter provided, reasonable counsel fees)
incurred by them in connection with investigating any such losses, claims,
damages or liabilities, or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities, expenses or actions
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading if such statement or omission was made in reliance
upon and in conformity with information furnished herein, to FPL Group
Capital or FPL Group in writing by or on behalf of such Underwriter,
through the Representatives or otherwise, for use in connection with the
preparation of the Registration Statement or the Prospectus or any
amendment or supplement to any thereof. The indemnity agreement of the
respective Underwriters contained in this paragraph shall remain operative
and in full force and effect, regardless of any investigation made by or on
behalf of FPL Group Capital, FPL Group or any of its officers or directors
or any such other Underwriter or any such controlling person, and shall
survive the delivery of the Debentures [of each series]. FPL Group Capital
and FPL Group agree promptly to notify the Representatives of the
commencement of any litigation or proceedings against FPL Group Capital,
FPL Group (or any controlling person of either thereof) or any of its
officers or directors in connection with the issuance and sale of the
Debentures [of any series].
(c) FPL Group Capital, FPL Group and the several Underwriters each
agree that, upon the receipt of notice of the commencement of any action
against it, its officers and directors, or any person controlling it as
aforesaid, in respect of which indemnity may be sought on account of any
indemnity agreement contained herein, it will promptly give written notice
of the commencement thereof to the party or parties against whom indemnity
shall be sought thereunder, but the omission so to notify such indemnifying
party or parties of any such action shall not relieve such indemnifying
party or parties from any liability which it or they may have to the
indemnified party otherwise than on account of such indemnity agreement. In
17
case such notice of any such action shall be so given, such indemnifying
party shall be entitled to participate at its own expense in the defense
or, if it so elects, to assume (in conjunction with any other indemnifying
parties) the defense of such action, in which event such defense shall be
conducted by counsel chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall be defendant or
defendants in such action, and such defendant or defendants shall bear the
fees and expenses of any additional counsel retained by them; but if the
indemnifying party shall elect not to assume the defense of such action,
such indemnifying party will reimburse such indemnified party or parties
for the reasonable fees and expenses of any counsel retained by them;
provided, however, if the defendants in any such action include both the
indemnified party and the indemnifying party and counsel for the
indemnifying party shall have reasonably concluded that there may be a
conflict of interest involved in the representation by such counsel of both
the indemnifying party and the indemnified party, the indemnified party or
parties shall have the right to select separate counsel, satisfactory to
the indemnifying party, to participate in the defense of such action on
behalf of such indemnified party or parties at the expense of the
indemnifying party (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate
counsel representing the indemnified parties who are parties to such
action).
12. Termination. This agreement may be terminated by the Representatives
-----------
by delivering written notice thereof to FPL Group Capital, at any time prior to
the Closing Date if (a) after the date hereof and at or prior to the Closing
Date there shall have occurred any general suspension of trading in securities
on the New York Stock Exchange, Inc. or there shall have been established by the
New York Stock Exchange, Inc. or by the Commission or by any federal or state
agency or by the decision of any court any limitation on prices for such trading
or any restrictions on the distribution of securities, or a general banking
moratorium declared by New York or federal authorities, or (b) there shall have
occurred any new outbreak of hostilities, including, but not limited to, an
escalation of hostilities which existed prior to the date of this agreement or
other national or international calamity or crisis, the effect of any such event
specified in (a) or (b) above on the financial markets of the United States
shall be such as to make it impracticable for the Underwriters to enforce
contracts for the sale of the Debentures [of any series]. This agreement may
also be terminated at any time prior to the Closing Date if in the judgment of
the Representatives the subject matter of any amendment or supplement to the
Registration Statement or the Prospectus prepared and furnished by FPL Group
Capital or FPL Group reflects a material adverse change in the business,
properties or financial condition of FPL Group Capital and its subsidiaries
taken as a whole or FPL Group 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 Debentures [of any series] to be
purchased hereunder. Any termination of this agreement pursuant to this Section
12 shall be without liability of any party to any other party except as
otherwise provided in subsections (c) and (e) of Section 8 hereof.
13. Miscellaneous. The validity and interpretation of this agreement shall
-------------
be governed by the laws of the State of New York. This agreement shall inure to
the benefit of FPL Group Capital, FPL Group, the several Underwriters and, with
18
respect to the provisions of Section 11 hereof, each controlling person referred
to in said Section 11, and their respective successors. Nothing in this
agreement is intended or shall be construed to give to any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this agreement or any provision herein contained. The term "successors" as used
in this agreement shall not include any purchaser, as such purchaser, of any
Debentures from any of the several Underwriters.
14. Notices. All communications hereunder shall be in writing or by
-------
telegram and, if to the Underwriters, shall be mailed or delivered to the
Representatives at the address set forth in Schedule I hereto, or if to FPL
Group Capital or FPL Group, shall be mailed or delivered to it at 000 Xxxxxxxx
Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000, Attention: Treasurer.
19
If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter and your acceptance shall constitute a binding agreement between us.
Very truly yours,
FPL Group Capital Inc
By:
---------------------------
Name:
Title:
FPL Group, Inc.
By:
---------------------------
Name:
Title:
Accepted and delivered as
of the date first above written:
By:
---------------------------
Name:
Title:
Acting on their own behalf and as Representatives of the other several
Underwriters referred to in the foregoing agreement.
20
SCHEDULE I
Underwriting Agreement dated ________ __, 1999
Registration Statement Nos. 333-_____ and 333-_____-01
Representatives and Addresses:
Securities:
Designation:
Principal Amount:
Indenture dated as of:
Date of Maturity:
Interest Rate:
Purchase Price:
Public Offering Price:
Closing Date and Location:
SCHEDULE II
Principal Amount of
___% Debentures
Underwriter Series due ________
TOTAL
