EXHIBIT 1(B)
FPL Group, Inc.
[FPL Group Capital Inc]
[FPL Group Capital Trust __]
[FPL Group Trust __]
Preferred Trust Securities
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UNDERWRITING AGREEMENT
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[Date]
To the Representatives named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
1. Introductory. FPL Group, Inc., a Florida corporation ("FPL Group"),
[/1/FPL Group Capital Inc, a Florida corporation and a [wholly-owned] subsidiary
of FPL Group ("FPL Group Capital"),] and FPL Group [/1/Capital] Trust __, a
statutory trust formed under the Delaware Statutory Trust Act (the "Trust" or
"FPL Group [/1/Capital] Trust __," and hereinafter, together with FPL Group
[/1/and FPL Group Capital], the "Offerors"), confirm their agreement with
respect to the issue and sale by the Trust and the purchase by the Underwriters
(as defined below) of the Trust's [__] Preferred Trust Securities, [of the
series designation[s], with the terms and in the liquidation amount[s] specified
in Schedule I hereto] (the "Preferred Trust Securities").
The term "Underwriters" as used herein shall be deemed to mean the entity
or several entities named in Schedule II hereto and any underwriter substituted
as provided in Section 7 hereof and the term "Underwriter" shall be deemed to
mean one of such Underwriters. If the entity or entities listed in Schedule I
hereto (the "Representatives") are the same as the entity or entities listed in
Schedule II hereto, then the terms "Underwriters" and "Representatives," as used
herein, shall each be deemed to refer to such entity or entities. The
Representatives represent that they have been authorized by each Underwriter to
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1 For use with Preferred Trust Securities including FPL Group Capital
Subordinated Debentures.
2 For use with Preferred Trust Securities including FPL Group Subordinated
Debentures.
enter into this agreement on behalf of such Underwriter and to act for it in the
manner herein provided. All obligations of the Underwriters hereunder are
several and not joint. If more than one entity is named in Schedule I hereto,
any action under or in respect of this agreement may be taken by such entities
jointly as the Representatives or by one of the entities acting on behalf of the
Representatives and such action will be binding upon all the Underwriters.
2. Description of Securities. Each of the Preferred Trust Securities
represents a preferred undivided beneficial interest in the assets of the Trust.
The Preferred Trust Securities will be issued pursuant to an Amended and
Restated Trust Agreement, dated as of ___________, among The Bank of New York,
as Property Trustee (the "Property Trustee"), The Bank of New York (Delaware),
as Delaware Trustee (the "Delaware Trustee"), certain employees of FPL Group or
its affiliates, as Administrative Trustees (the "Administrative Trustees"), FPL
Group, as depositor, and the several Holders (as defined therein), in
substantially the form heretofore delivered to you as the Representatives, said
agreement being hereinafter referred to as the "Trust Agreement." The Preferred
Trust Securities will be guaranteed on a subordinated basis by FPL Group as to
the payment of distributions and payments upon liquidation or redemption, as and
to the extent set forth in the Preferred Trust Securities Guarantee Agreement
dated as of __________ (the "Guarantee Agreement"), between FPL Group and The
Bank of New York, as trustee (the "Trust Guarantee").
The proceeds from the sale of the Preferred Trust Securities to the public
will be combined with the proceeds from the sale by the Trust to FPL Group of
its common securities, representing common undivided beneficial interests in the
assets of the Trust (the "Common Securities"), and will be used by the Trust to
purchase the subordinated debt securities of the series designation, with the
terms and in the principal amount specified in Schedule I hereto to be issued by
FPL Group [/1/Capital] (the "FPL Group [/1/Capital] Subordinated Debentures").
The FPL Group [/1/Capital] Subordinated Debentures will be issued pursuant to an
Indenture (For Unsecured Subordinated Debt Securities relating to Trust
Securities) [/2/between] [/1/among] FPL Group [/1/Capital,] [/2/and] The Bank of
New York, as trustee ("Subordinated Indenture Trustee") [/1/, and FPL Group, as
guarantor] (the "Subordinated Indenture"). [/1/The FPL Group Capital
Subordinated Debentures will be fully and unconditionally guaranteed on a
subordinated basis by FPL Group, as set forth in the Subordinated Indenture (the
"Subordinated Guarantee")]. The Subordinated Guarantee, together with the Trust
Guarantee, are referred to herein as the "Guarantees").] The Preferred Trust
Securities and [/1/the Guarantees] [/2/the Trust Guarantee], together with the
FPL Group [/1/Capital] Subordinated Debentures, are referred to herein as the
"Offered Securities."
3. Representations and Warranties of the Trust. The Trust represents and
warrants to the several Underwriters that:
(a) [FPL Group Capital Trust II has, together with FPL Group, FPL
Group Capital [/2/ Inc, a Florida corporation and a [wholly-owned]
subsidiary of FPL Group ("FPL Group Capital")] and FPL Group Capital Trust
I, filed with the Securities and Exchange Commission (the "Commission") a
joint registration statement, as amended, on Form S-3, including a
prospectus ("Registration Statement Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇,
▇▇▇-▇▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇▇-▇▇"), for the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of (a)
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$2,674,900,000 aggregate amount of (i) FPL Group Capital's unsecured debt
securities ("Debt Securities"), (ii) FPL Group's shares of common stock,
$.01 par value, including the preferred share purchase rights, if any,
attached thereto (the "Shares"), (iii) contracts to purchase Shares or
other agreements or instruments requiring FPL Group to issue Shares
(collectively, "Stock Purchase Contracts"), (iv) units, each representing
ownership of a Stock Purchase Contract and any of Debt Securities,
Preferred Trust Securities or debt obligations of third parties, including
U.S. Treasury securities ("Stock Purchase Units"), (v) FPL Group Capital
Subordinated Debentures, and (vi) one or more series of preferred trust
securities of FPL Group Capital Trust I and FPL Group Capital Trust II
(provided however, that the aggregate value of all such securities or
combinations of such securities listed in (i) through (vi) offered for sale
to the public by FPL Group, FPL Group Capital, FPL Group Capital Trust I
and FPL Group Capital Trust II included in the registration statement may
not exceed $1,337,450,000) and (b) FPL Group's guarantees related to the
Debt Securities, FPL Group Capital Subordinated Debentures ("Subordinated
Guarantee") and one or more series of preferred trust securities of FPL
Group Capital Trust I and FPL Group Capital Trust II. Such registration
statement has been declared effective by the Commission and no stop order
suspending such effectiveness has been issued under the Securities Act and
no proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Trust, threatened by the Commission. All but
$[__________] aggregate amount of securities registered with the Commission
under the Securities Act pursuant to Registration Statement Nos.
333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇▇-▇▇ have been
previously issued.] The Trust has [also] filed with the Commission a joint
registration statement with FPL Group, FPL Group Capital, FPL Group Capital
Trust __, [FPL Group [Capital] Trust __] and FPL Group Trust __ on Form
S-3, as amended, including a combined prospectus ("Registration Statement
Nos. 333-______, 333-______-01, 333-_______-02, 333-_______-03,
333-_______-04 and 333-_______-05"), for registration under the Securities
Act of (a) $2,800,000,000 aggregate amount (i) [FPL Group Capital's
unsecured debt securities ("Debt Securities")] [Debt Securities], (ii) [FPL
Group's shares of common stock, $.01 par value, including the preferred
share purchase rights, if any, attached thereto (the "Shares")] [Shares],
(iii) shares of one or more series of FPL Group's serial preferred stock,
$.01 par value ("FPL Group Preferred Stock"), (iv) shares of one or more
series of FPL Group Capital preferred stock, $[.__] par value ("FPL Group
Capital Preferred Stock"), (v) [contracts to purchase Shares or other
agreements or instruments requiring FPL Group to issue Shares
(collectively, "Stock Purchase Contracts")] [Stock Purchase Contracts],
(vi) [units, each representing ownership of a Stock Purchase Contract and
any of Debt Securities, Preferred Trust Securities or debt obligations of
third parties, including U.S. Treasury securities ("Stock Purchase Units")]
[Stock Purchase Units], (vii) one or more series of subordinated debt
securities of FPL Group Capital ("FPL Group Capital Subordinated
Debentures") [FPL Group Capital Subordinated Debentures], (viii) one or
more series of subordinated debt securities of FPL Group ("FPL Group
Subordinated Debentures"), and (ix) one or more series of preferred trust
securities of FPL Group Capital Trust II, FPL Group Capital Trust III, FPL
Group Trust I and FPL Group Trust II (provided, however, that the aggregate
amount of all such securities or combinations of such securities listed in
(i) through (ix) offered for sale to the public by FPL Group, FPL Group
Capital, FPL Group Capital Trust II, FPL Group Capital Trust III, FPL Group
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Trust I and FPL Group Trust II included in the registration statement may
not exceed $1,400,000,000 and (b) FPL Group's guarantees related to the
Debt Securities, FPL Group Capital Subordinated Debentures, FPL Group
Capital Preferred Stock and one or more series of preferred trust
securities of FPL Group Capital Trust II, FPL Group Capital Trust III, FPL
Group Trust I and FPL Group Trust II. [None] [$__________] of the
$1,400,000,000 aggregate amount of securities registered with the
Commission under the Securities Act pursuant to Registration Statement Nos.
333-______, 333-______-01, 333-_______-02, 333-_______-03, 333-_______-04
and 333-_______-05 [has] [have] been previously issued. Such registration
statement has been declared effective by the Commission and no stop order
suspending such effectiveness has been issued under the Securities Act and
no proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Trust, threatened by the Commission. References herein
to the term "Registration Statement" as of any given date shall mean
[Registration Statement Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and
▇▇▇-▇▇▇▇▇▇-▇▇ and] Registration Statement Nos. 333-______, 333-______-01,
333-_______-02, 333-_______-03, 333-_______-04 and 333-_______-05, [each]
as amended or supplemented to such date, including all documents
incorporated by reference therein as of such date pursuant to Item 12 of
Form S-3 ("Incorporated Documents"); provided that if the Trust files a
joint registration statement with FPL Group, FPL Group Capital, FPL Group
Capital Trust __, FPL Group [Capital] Trust __ and FPL Group Trust __ with
the Commission pursuant to Rule 462(b) under the Securities Act (the "Rule
462(b) Registration Statement"), then after such filing, all references to
"Registration Statement" shall be deemed to include the Rule 462(b)
Registration Statement. References herein to the term "Prospectus" as of
any given date shall mean the [combined] prospectus forming a part of
Registration Statement Nos. 333-______, 333-______-01, 333-_______-02,
333-_______-03, 333-_______-04 and 333-_______-05, as supplemented by a
prospectus supplement relating to the Offered Securities proposed to be
filed pursuant to Rule 424 of the general rules and regulations of the
Securities Act ("Rule 424"), and as further amended or supplemented as of
such date (other than amendments or supplements relating to (i) securities
other than the Offered Securities or (ii) when referring to the Prospectus
relating to a particular offering of the Offered Securities, Offered
Securities other than the Offered Securities being offered on such date),
including all Incorporated Documents. References herein to the term
"Effective Date" shall be deemed to refer to the later of the time and date
that Registration Statement Nos. 333-______, 333-______-01, 333-_______-02,
333-_______-03, 333-_______-04 and 333-_______-05 was declared effective
and the time and date of the 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). The prospectus supplement relating to the
Offered Securities proposed to be filed pursuant to Rule 424 shall be
substantially in the form delivered to the Representatives prior to the
execution of this agreement. Prior to the termination of the offering of
the Offered Securities, the Trust will not file any amendment to the
Registration Statement or any amendment or supplement to the Prospectus
without prior notice to the Representatives and to Hunton & ▇▇▇▇▇▇▇▇ LLP,
who are acting as counsel for the several Underwriters ("Counsel for the
Underwriters"), or any such amendment or supplement to which the
Representatives shall reasonably object in writing, or which shall be
unsatisfactory to Counsel for the Underwriters. Each of the Underwriters
acknowledges that subsequent to the Closing Date, the Trust may file a
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post-effective amendment to the Registration Statement in order to file one
or more unqualified opinions of counsel pursuant to Rule 462(d) under the
Securities Act.
(b) The Registration Statement at the Effective Date fully complied,
and the Prospectus, both on the date it is filed with the Commission
pursuant to Rule 424 (such date, the "424 Date") and at the Closing Date,
and the Registration Statement and the Trust Agreement, at the Closing
Date, will fully comply, in all material respects with the applicable
provisions of the Securities Act and the Trust Indenture Act of 1939, as
amended (the "1939 Act"), respectively, and, in each case, the applicable
instructions, rules and regulations of the Commission thereunder; the
Registration Statement, at the Effective Date, did not, and at the Closing
Date the Registration Statement will not, contain an untrue statement of a
material fact, or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; the
Prospectus, both on the 424 Date and at the Closing Date, will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein, in the light
of the circumstances under which they were made, not misleading; provided,
that the foregoing representations and warranties in this subsection (b)
shall not apply to statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Offerors by or on
behalf of any Underwriter through the Representatives expressly for use in
connection with the preparation of the Registration Statement or the
Prospectus, or to any statements in or omissions from the Statements of
Eligibility on Form T-1, or amendments thereto, filed as exhibits to the
Registration Statement or incorporated into the Registration Statement
(collectively, the "Statements of Eligibility") or to any statements or
omissions made in the Registration Statement or Prospectus relating to The
Depository Trust Company ("DTC") Book-Entry-Only System that are based
solely on information contained in published reports of DTC.
(c) The execution and delivery of this agreement and the consummation
of the transactions herein contemplated by the Trust, and the fulfillment
of the terms hereof on the part of Trust to be fulfilled, have been duly
authorized by all necessary trust action of the Trust in accordance with
the provisions of its certificate of trust, trust agreement or other
organizational documents (collectively, the "Trust Charter Documents") and
applicable law, and the Preferred Trust Securities when issued and
delivered as provided herein will constitute valid and binding obligations
of the Trust enforceable against it 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. The performance by the
Trust of its obligations under the Trust Agreement does not require any
consent, approval, authorization, registration or qualification of or by
any governmental agency or body other than those consents, approvals,
authorizations, registrations or qualifications as have already been
obtained.
(d) The execution and delivery of this agreement and the consummation
of the transactions herein contemplated by the Trust, and the fulfillment
of the terms hereof on the part of the Trust to be fulfilled will not
5
result in a breach of any of the terms or provisions of, or constitute a
default under, the Trust Charter Documents, or any indenture, mortgage,
deed of trust or other agreement or instrument to which the Trust is now a
party, or violate any law or any order, rule, decree or regulation
applicable to the Trust of any federal or state court, regulatory board or
body or administrative agency having jurisdiction over the Trust 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 the Trust.
(e) The Trust is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended ("1940 Act").
4. [/1/Representations and Warranties of FPL Group Capital. FPL Group
Capital represents and warrants to the several Underwriters that:
(a) [FPL Group Capital has, together with FPL Group, the Trust and FPL
Group Capital Trust I, filed with the Commission Registration Statement
Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇▇-▇▇ for the
registration under the Securities Act of (a) $2,674,900,000 aggregate
amount of (i) Debt Securities, (ii) FPL Group's Shares, (iii) Stock
Purchase Contracts, (iv) Stock Purchase Units, (v) FPL Group Capital
Subordinated Debentures, and (vi) one or more series of preferred trust
securities of FPL Group Capital Trust I and FPL Group Capital Trust II
(provided however, that the aggregate value of all such securities or
combinations of such securities listed in (i) through (vi) offered for sale
to the public by FPL Group, FPL Group Capital, the Trust and FPL Group
Capital Trust I included in the registration statement may not exceed
$1,337,450,000) and (b) FPL Group's guarantees related to the Debt
Securities, FPL Group Capital Subordinated Debentures and one or more
series of preferred trust securities of FPL Group Capital Trust I and FPL
Group Capital Trust II. Such registration statement has been declared
effective by the Commission and no stop order suspending such effectiveness
has been issued under the Securities Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of FPL
Group Capital, threatened by the Commission. All but $[__________]
aggregate amount of securities registered with the Commission under the
Securities Act pursuant to Registration Statement Nos. 333-102173,
▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇▇-▇▇ have been previously
issued.] FPL Group Capital [also] has filed, together with FPL Group, the
Trust, FPL Group Capital Trust __, FPL Group [Capital] Trust __ and FPL
Group Trust __, with the Commission Registration Statement Nos. 333-______,
333-______-01, 333-_______-02, 333-_______-03, 333-_______-04 and
333-_______-05 for registration under the Securities Act of (a)
$2,800,000,000 aggregate amount of (i) Debt Securities, (ii) Shares, (iii)
FPL Group Preferred Stock, (iv) FPL Group Capital Preferred Stock, (v)
Stock Purchase Contracts, (vi) Stock Purchase Units, (vii) FPL Group
Capital Subordinated Debentures, (viii) FPL Group Subordinated Debentures,
and (ix) one or more series of preferred trust securities of FPL Group
Capital Trust II, FPL Group Capital Trust III and FPL Group Trust I
(provided, however, that the aggregate amount of all such securities or
combinations of such securities listed in (i) through (ix) offered for sale
to the public by FPL Group, FPL Group Capital, the Trust, FPL Group Capital
Trust __, FPL Group [Capital] Trust __ and FPL Group Trust __ included in
the registration statement may not exceed $1,400,000,000) and (b) FPL
6
Group's guarantees related to the Debt Securities, FPL Group Capital
Subordinated Debentures, FPL Group Capital Preferred Stock and one or more
series of preferred trust securities of FPL Group Capital Trust II, FPL
Group Capital Trust III, FPL Group Trust I and FPL Group Trust II. [None]
[$__________] of the $1,400,000,000 aggregate amount of securities
registered with the Commission under the Securities Act pursuant to
Registration Statement Nos. 333-______, 333-______-01, 333-_______-02,
333-_______-03, 333-_______-04 and 333-_______-05 [has] [have] been
previously issued. Such registration statement has been declared effective
by the Commission and no stop order suspending such effectiveness has been
issued under the Securities Act and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of FPL Group Capital,
threatened by the Commission. The prospectus supplement relating to the
Offered Securities proposed to be filed pursuant to Rule 424 shall be
substantially in the form delivered to the Representatives prior to the
execution of this agreement. Prior to the termination of the offering of
the Offered Securities, 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 Counsel for the
Underwriters, or any such amendment or supplement to which the
Representatives shall reasonably object in writing, or which shall be
unsatisfactory to Counsel for the Underwriters. Each of the Underwriters
acknowledges that subsequent to the Closing Date, FPL Group Capital may
file a post-effective amendment to the Registration Statement in order to
file one or more unqualified opinions of counsel pursuant to Rule 462(d)
under the Securities Act.
(b) The Registration Statement at the Effective Date fully complied,
and the Prospectus, both on the 424 Date and at the Closing Date, and the
Registration Statement and the Subordinated Indenture, 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 applicable instructions, rules and regulations of the Commission
thereunder; the Registration Statement, at the Effective Date, did not, and
at the Closing Date the Registration Statement will not, contain an untrue
statement of a material fact, or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; the Prospectus, both on the 424 Date and at the Closing Date,
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained therein,
in the light of the circumstances under which they were made, not
misleading; provided, that the foregoing representations and warranties in
this subsection (b) shall not apply to statements or omissions made in
reliance upon and in conformity with information furnished in writing to
the Offerors by or on behalf of any Underwriter through the Representatives
expressly for use in connection with the preparation of the Registration
Statement or the Prospectus, or to any statements in or omissions from the
Statements of Eligibility or to any statements or omissions made in the
Registration Statement or Prospectus relating to the DTC Book-Entry-Only
System that are based solely on information contained in published reports
of DTC.
(c) The execution and delivery of this agreement and the consummation
of the transactions herein contemplated by FPL Group Capital, 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
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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 FPL Group Capital Subordinated Debentures when issued and
delivered as provided herein will constitute valid and binding obligations
of FPL Group Capital enforceable against it 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. The execution and
delivery of the FPL Group Capital Subordinated Debentures and the
Subordinated Indenture and the performance by FPL Group Capital of its
obligations thereunder do not require any consent, approval, authorization,
registration or qualification of or by any governmental agency or body
other than those consents, approvals, authorizations, registrations or
qualifications as have already been obtained.
(d) The execution and delivery of this agreement and the consummation
of the transactions herein contemplated by FPL Group Capital, the
fulfillment of the terms hereof on the part of FPL Group Capital to be
fulfilled, and the compliance by FPL Group Capital with all the terms and
provisions of the Subordinated Indenture 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 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 one or more of its direct or indirect
subsidiaries has good and marketable title to all of the ownership
interests of FPL Energy, LLC and ESI Energy, LLC free and clear of all
liens and encumbrances, except such as do not materially affect the value
thereof.
(f) FPL Group Capital and each of its direct and indirect significant
subsidiaries (as defined in Regulation S-X (17 CFR Part 210)) has been duly
organized, is validly existing and is in good standing under the laws of
its respective jurisdiction of organization, and is duly qualified to do
business and is in good standing as a foreign corporation or other entity
in each jurisdiction in which its respective ownership of properties or the
conduct of its respective businesses requires such qualification, except
where the failure so to qualify would not have a material adverse effect on
the business, properties or financial condition of FPL Group Capital and
its subsidiaries taken as a whole, and has the power and authority as a
corporation or other entity necessary to own or hold its respective
properties and to conduct the businesses in which it is engaged.
(g) The FPL Group Capital Subordinated Debentures conform in all
material respects to the description thereof in the Prospectus.
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(h) The Subordinated Indenture (i) has been duly authorized by FPL
Group Capital by all necessary corporate action, has been duly executed and
delivered by FPL Group Capital, and is a valid and binding instrument
enforceable against FPL Group Capital 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 and (ii) conforms in
all material respects to the description thereof in the Prospectus.
(i) FPL Group Capital is not an "investment company" within the
meaning of the 1940 Act.]
5. Representations and Warranties of FPL Group. FPL Group represents and
warrants to the several Underwriters that:
(a) [FPL Group has, together with FPL Group Capital, the Trust and FPL
Group Capital Trust I, filed with the Commission Registration Statement
Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇▇-▇▇ for the
registration under the Securities Act of (a) $2,674,900,000 aggregate
amount of (i) Debt Securities, (ii) FPL Group's Shares, (iii) Stock
Purchase Contracts, (iv) Stock Purchase Units, (v) FPL Group Capital
Subordinated Debentures, (vi) one or more series of preferred trust
securities of FPL Group Capital Trust I and FPL Group Capital Trust II
(provided however, that the aggregate value of all such securities or
combinations of such securities listed in (i) through (vi) offered for sale
to the public by FPL Group, FPL Group Capital, the Trust and FPL Group
Capital Trust I included in the registration statement may not exceed
$1,337,450,000) and (b) FPL Group's guarantees related to the Debt
Securities, FPL Group Capital Subordinated Debentures and one or more
series of preferred securities of FPL Group Capital Trust I and FPL Group
Capital Trust II. Such registration statement has been declared effective
by the Commission and no stop order suspending such effectiveness has been
issued under the Securities Act and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of FPL Group,
threatened by the Commission. All but $[__________] aggregate amount of
securities registered with the Commission under the Securities Act pursuant
to Registration Statement Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and
▇▇▇-▇▇▇▇▇▇-▇▇ have been previously issued.] FPL Group [also] has filed,
together with FPL Group Capital, the Trust, FPL Group Capital Trust __, FPL
Group [Capital] Trust __ and FPL Group Trust __, with the Commission
Registration Statement Nos. 333-______, 333-______-01, 333-_______-02,
333-_______-03, 333-_______-04 and 333-_______-05, for registration under
the Securities Act of (a) $2,800,000,000 aggregate amount of (i) Debt
Securities, (ii) Shares, (iii) FPL Group Preferred Stock, (iv) FPL Group
Capital Preferred Stock, (v) Stock Purchase Contracts, (vi) Stock Purchase
Units, (vii) FPL Group Capital Subordinated Debentures, (viii) FPL Group
Subordinated Debentures, and (ix) one or more series of preferred trust
securities of FPL Group Capital Trust II, FPL Group Capital Trust III and
FPL Group Trust I (provided, however, that the aggregate amount of all such
securities or combinations of such securities listed in (i) through (ix)
offered for sale to the public by FPL Group, FPL Group Capital, FPL Group
Capital Trust II, FPL Group Capital Trust III, FPL Group Trust I and FPL
Group Trust II included in the registration statement may not exceed
$1,400,000,000) and (b) FPL Group's guarantees related to the Debt
9
Securities, FPL Group Capital Subordinated Debentures, FPL Group Capital
Preferred Stock and one or more series of preferred securities of FPL Group
Capital Trust II, FPL Group Capital Trust III, FPL Group Trust I and FPL
Group Trust II. [None] [$_________] of the $1,400,000,000 aggregate amount
of securities registered with the Commission under the Securities Act
pursuant to Registration Statement Nos. 333-______, 333-______-01,
333-_______-02, 333-_______-03, 333-_______-04 and 333-_______-05 [has]
[have] been previously issued. Such registration statement has been
declared effective by the Commission and no stop order suspending such
effectiveness has been issued under the Securities Act and no proceedings
for that purpose have been instituted or are pending or, to the knowledge
of FPL Group, threatened by the Commission. The prospectus supplement
relating to the Offered Securities proposed to be filed pursuant to Rule
424 shall be substantially in the form delivered to the Representatives
prior to the execution of this agreement. Prior to the termination of the
offering of the Offered Securities, 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. Each of the Underwriters
acknowledges that subsequent to the Closing Date, FPL Group may file a
post-effective amendment to the Registration Statement in order to file one
or more unqualified opinions of counsel pursuant to Rule 462(d) under the
Securities Act.
(b) The Registration Statement at the Effective Date fully complied,
and the Prospectus, both on the 424 Date and at the Closing Date, and the
Registration Statement, and the Trust Agreement, the Subordinated
Indenture, the Guarantee Agreement and [/2/Trust Guarantee and the
Subordinated Guarantee] [/1/the Guarantees], 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
applicable instructions, rules and regulations of the Commission
thereunder; the Registration Statement, at the Effective Date, did not, and
at the Closing Date the Registration Statement will not, contain an untrue
statement of a material fact, or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; the Prospectus, both on the 424 Date and at the Closing Date,
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained therein,
in the light of the circumstances under which they were made, not
misleading; 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 the Offerors by or on behalf of any
Underwriter through the Representatives expressly for use in connection
with the preparation of the Registration Statement or the Prospectus, or to
any statements in or omissions from the Statements of Eligibility or to any
10
statements or omissions made in the Registration Statement or Prospectus
relating to the DTC Book-Entry-Only System that are based solely on
information contained in published reports of DTC.
(c) The financial statements included as part of or incorporated by
reference in the Registration Statement present fairly the consolidated
financial condition and results of operations of FPL Group and its
subsidiaries taken as a whole, at the respective dates or for the
respective periods to which they apply; such financial statements have been
prepared in each case in accordance with generally accepted accounting
principles consistently applied throughout the periods involved except as
otherwise indicated in the Registration Statement; and Deloitte & Touche
LLP, who have audited the audited financial statements of FPL 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,
whether or not in the ordinary course of business, 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 or contemplated by
the Registration Statement and Prospectus.
(e) The execution and delivery of this agreement and the consummation
of the transactions herein contemplated by FPL Group, 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 Restated Articles of Incorporation
(the "FPL Group Charter"), by-laws and applicable law, and the [/2/Trust
Guarantee] [/1/Guarantees] [/2/and the FPL Group Subordinated Debentures]
when issued and delivered by FPL Group as provided herein will constitute
valid and binding obligation[s] of FPL Group enforceable against FPL Group
in accordance with [/2/its] [/1/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. [/2/The execution and delivery of the FPL
Group Subordinated Debentures, the Guarantee Agreement and the Subordinated
Indenture] [/1/The execution and delivery of the Guarantee Agreement and
the Subordinated Indenture] by FPL Group did not require, and the
performance by FPL Group of its obligations thereunder with respect to the
Preferred Trust Securities and the FPL Group [/1/Capital] Subordinated
Debentures does not require, any consent, approval, authorization,
registration or qualification of or by any governmental agency or body
other than those consents, approvals, authorizations, registrations or
qualifications as have already been obtained.
11
(f) The execution and delivery of this agreement and the consummation
of the transactions herein contemplated by FPL Group, the fulfillment of
the terms hereof on the part of FPL Group to be fulfilled, and the
compliance by FPL Group with (i) all the terms and provisions of the
Guarantee Agreement and (ii) [/2/all] the terms and provisions of the FPL
Group [/1/Capital] Subordinated Indenture and Trust Agreement
[/1/applicable to it], 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 and one or more of its direct or indirect subsidiaries
has good and marketable title to all of the common stock (with respect to
those subsidiaries which are organized as corporations) or other ownership
interests (with respect to those subsidiaries which are organized as
limited liability companies) of FPL Group's direct or 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.
FPL Group's direct and indirect significant subsidiaries (as defined in
Regulation S-X) are Florida Power & Light Company, FPL Group Capital, FPL
Energy, LLC and ESI Energy, LLC.
(h) FPL Group and each of FPL Group's direct and indirect significant
subsidiaries (as defined in Regulation S-X) has been duly organized, is
validly existing and is in good standing under the laws of its respective
jurisdiction of organization, and is duly qualified to do business and is
in good standing as a foreign corporation or other entity in each
jurisdiction in which its respective ownership of properties or the conduct
of its respective businesses requires such qualification, except where the
failure so to qualify would not have a material adverse effect on the
business, properties or financial condition of FPL Group and its
subsidiaries taken as a whole, and has the power and authority as a
corporation or other entity necessary to own or hold its respective
properties and to conduct the businesses in which it is engaged.
(i) [/2/The FPL Group Subordinated Debentures conform in all material
respects to the description thereof in the Prospectus.]
(j) [/2/The Subordinated Indenture (i) has been duly authorized by FPL
Group by all necessary corporate action, and when duly executed and
delivered as provided therein, will constitute a valid and binding
instrument enforceable against FPL Group 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 and (ii) conforms in
all material respects to the description thereof in the Prospectus.]
12
(k) Each of the Trust Agreement [/1/, Subordinated Indenture] and
Guarantee Agreement (i) has been duly authorized by FPL Group by all
necessary corporate action, has been duly executed and delivered by FPL
Group and is a valid and binding instrument enforceable against FPL Group
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 and (ii) conforms in all material respects to the description
thereof in the Prospectus.
(l) FPL Group is not an "investment company" within the meaning of the
1940 Act.
6. Purchase and Sale. On the basis of the representations and warranties
herein contained, and subject to the terms and conditions in this agreement, the
Trust 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 the Trust the respective number of Preferred Trust
Securities set forth opposite their respective names in Schedule II hereto at
the purchase price for those Preferred Trust Securities set forth in Schedule I
hereto.
The Underwriters agree to make a bona fide public offering of the Preferred
Trust Securities and the Trust 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.
The Underwriters have advised the Trust that the Preferred Trust Securities will
be offered to the public at the amount per Preferred Trust Security as set forth
in Schedule I hereto as the Public Offering Price and to certain dealers
selected by the Representatives at a price which represents a concession not in
excess of the amount of $[__] per Preferred Trust Security under the public
offering price as set forth in Schedule I hereto as the Dealers' Concession.
7. Time, Date and Place of Closing, Default of Underwriter. Delivery of
the Preferred Trust Securities and payment therefor by wire transfer in federal
funds, shall be made at the time, date and place set forth in Schedule I hereto,
or at such other time, date or place as may be agreed upon in writing by FPL
Group, the Trust and the Representatives. The Trust hereby directs the
Underwriters to make such payment for the Preferred Trust Securities to FPL
Group Capital on behalf of the Trust. The time and date of such delivery and
payment are herein called the "Closing Date."
The Preferred Trust Securities 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 Preferred Trust Securities shall be made through the facilities
of DTC unless FPL Group, the Trust and the Representatives shall otherwise
agree. For the purpose of expediting the checking of the Preferred Trust
Securities by the Representatives on behalf of the Underwriters, the Trust
agrees to make such Preferred Trust Securities available to the Representatives
for such purpose at the offices of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, not later than 2:00 P.M., New York City time, on the
business day preceding the Closing Date, or at such other time, date or place as
may be agreed upon by FPL Group, the Trust and the Representatives. In view of
the fact that the proceeds of the sale of the Preferred Trust Securities will be
13
used by the Trust to purchase FPL Group [/1/Capital] Subordinated Debentures,
FPL Group [/1/and FPL Group Capital] agree[/2/s] to make the other Offered
Securities available to the Representatives for the purposes and at the place
and time determined in accordance with the immediately preceding sentence.
If any Underwriter shall fail to purchase and pay for the number of the
Preferred Trust Securities which such Underwriter has agreed to purchase and pay
for hereunder (otherwise than by reason of any failure on the part of the
Offerors to comply with any of the provisions contained herein), the
non-defaulting Underwriters shall be obligated to purchase and pay for (in
addition to the respective number of the Preferred Trust Securities set forth
opposite their respective names in Schedule II hereto) the number of the
Preferred Trust Securities which such defaulting Underwriter or Underwriters
failed to purchase and pay for, up to a number thereof equal to, in the case of
each such remaining Underwriter, ten percent (10%) of the aggregate number of
the Preferred Trust Securities set forth opposite the name of such remaining
Underwriter in said Schedule II, and such remaining Underwriters shall have the
right, within 24 hours of receipt of such notice, either to (i) purchase and pay
for (in such proportion as may be agreed upon among them) the remaining number
of the Preferred Trust Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase, or (ii) substitute another
Underwriter or Underwriters, satisfactory to FPL Group and the Trust, to
purchase and pay for the remaining number of the Preferred Trust Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase.
If any of the Preferred Trust Securities still remain unpurchased, then FPL
Group or the Trust 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 Preferred Trust Securities on the terms herein
set forth. In the event that, within the respective prescribed periods, (i) the
non-defaulting Underwriters notify FPL Group and the Trust that they have
arranged for the purchase of such Preferred Trust Securities or (ii) FPL Group
or the Trust notifies the non-defaulting Underwriters that it has arranged for
the purchase of such Preferred Trust Securities, the non-defaulting Underwriters
or FPL Group or the Trust shall have the right to postpone the Closing Date for
a period of not more than three full business days beyond the expiration of the
respective prescribed periods in order to effect whatever changes may thus be
made necessary in the Registration Statement, the Prospectus or in any other
documents or arrangements. In the event that neither the non-defaulting
Underwriters nor FPL Group or the Trust has arranged for the purchase of such
Preferred Trust Securities by another party or parties as above provided, then
this agreement shall terminate without any liability on the part of FPL Group,
the Trust or FPL Group Capital 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 Preferred Trust
Securities which such Underwriter has agreed to purchase as provided in Section
[6] hereof), except as otherwise provided in Section [11] and subsections (c)
and (e) of Section [8] hereof.
8. Covenants of the Offerors. The Offerors agree with the several
Underwriters that:
14
(a) The Offerors will promptly file the Prospectus with the Commission
pursuant to Rule 424 under the Securities Act.
(b) FPL Group 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 to be in the form as
originally filed, including all Incorporated Documents and exhibits, except
those incorporated by reference, which relate to the Offered Securities,
including a signed or conformed copy of each consent and certificate
included therein or filed as an exhibit thereto. As soon as practicable
after the date of this agreement, FPL Group will deliver to the
Underwriters through the Representatives as many copies of the Prospectus
as the Representatives may reasonably request for the purposes contemplated
by the Securities Act.
(c) FPL Group [/1/Capital] will pay or cause to be paid all expenses
in connection with the (i) preparation and filing of the Registration
Statement and Prospectus, (ii) issuance and delivery of the Preferred Trust
Securities as provided in Section [7] hereof and of the other Offered
Securities as contemplated hereby, and (iii) printing and delivery to the
Representatives for the account of the Underwriters, in reasonable
quantities, of copies of the Registration Statement, the Prospectus, the
FPL Group [/1/Capital] Subordinated Indenture, the Trust Agreement and the
Guarantee Agreement. FPL Group [/1/Capital] will pay or cause to be paid
all taxes, if any (but not including any transfer taxes), on the issuance
of the Offered Securities. The Offerors shall not, however, be required to
pay any amount for any expenses of the Representatives or any of the
Underwriters, except that if this agreement shall be terminated in
accordance with the provisions of Sections [9] or [10] hereof, FPL Group
[/1/Capital] will pay or cause to be paid the fees and disbursements of
Counsel for the Underwriters, whose fees and disbursements the Underwriters
agree to pay in any other event and FPL Group [/1/and/or 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. None of the
Offerors 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 any of the Offerors shall occur
which, in the opinion of FPL Group [/1/or FPL Group Capital], should be set
forth in a supplement to or an amendment of the Prospectus in order to make
the Prospectus not misleading in the light of the circumstances when it is
delivered to a purchaser, FPL Group will forthwith at its expense prepare
and furnish to the Representatives a reasonable number of copies of a
supplement or supplements or an amendment or amendments to the Prospectus
which will supplement or amend the Prospectus so that as supplemented or
amended it will not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
contained therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading; provided that should such event
relate solely to activities of any of the Underwriters, then the
Underwriters shall assume the expense of preparing and furnishing copies of
15
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 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) The Offerors will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the Preferred Trust
Securities, the Trust Guarantee, and to the extent required or advisable,
the other Offered Securities, for offer and sale under the blue sky laws of
such jurisdictions as the Representatives may designate and will pay or
cause to be paid filing fees and expenses (including fees of counsel not to
exceed $5,000 and reasonable disbursements of counsel), provided that none
of the Offerors 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 any
Offeror to be unduly burdensome.
(f) FPL Group will timely file such reports pursuant to the Exchange
Act as are necessary in order to make generally available to its security
holders as soon as practicable an earnings statement (which need not be
audited, unless required so to be under Section 11(a) of the Securities
Act) for the purposes of, and to provide the benefits contemplated by, the
last paragraph of Section 11(a) of the Securities Act.
(g) The Offerors will advise the Representatives promptly of the
filing of the Prospectus pursuant to Rule 424 and of any amendment or
supplement to the Prospectus or Registration Statement or, prior to the
termination of the offering of the Offered Securities hereunder, of
official notice of the institution of proceedings for, or the entry of, a
stop order suspending the effectiveness of the Registration Statement and,
if such a stop order should be entered, use every commercially reasonable
effort to obtain the prompt removal thereof.
(h) If FPL Group [/1/Capital] Subordinated Debentures are distributed
to holders of Preferred Trust Securities upon liquidation of the Trust, FPL
Group [/1/Capital] will take such action as is required in order to comply
with (or be exempt from) all applicable securities or blue sky laws of the
various jurisdictions in the United States in connection with such
distribution. The provisions of this Section [8](h) shall survive the
delivery of the Preferred Trust Securities.
9. Conditions of Underwriters' Obligations to Purchase and Pay for
Preferred Trust Securities. The several obligations of the Underwriters to
purchase and pay for the Preferred Trust Securities shall be subject to the
performance by the Offerors of their obligations to be performed hereunder on or
prior to the Closing Date and to the following conditions:
(a) The representations and warranties made by the Offerors herein
shall be true and correct in all material respects as of the Closing Date
as if made on and as of such date and the Representatives shall have
received, prior to payment for the Preferred Trust Securities, a
certificate from each of the Offerors dated the Closing Date and signed by
16
an officer, in the case of FPL Group [/1/and FPL Group Capital], and by an
administrative trustee or authorized representative in the case of the
Trust, to that effect.
(b) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date; no order of the
Commission directed to the adequacy of any Incorporated Document shall be
in effect on the Closing Date; no proceedings for either such purpose shall
be pending before, or threatened by, the Commission on such date; and the
Representatives shall have received, prior to payment for the Preferred
Trust Securities, a certificate from each of FPL Group [/1/, FPL Group
Capital] and the Trust dated the Closing Date and signed by an officer in
the case of FPL Group [/1/and FPL Group Capital] and by an administrative
trustee or authorized representative in the case of the Trust, to the
effect that, to the best of his or her knowledge, no such order is in
effect and no proceedings for either such purpose are pending before, or to
the knowledge of FPL Group [/1/, FPL Group Capital] and the Trust, as the
case may be, threatened by, the Commission.
(c) On the Closing Date, the Representatives shall have received from
Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to FPL Group [/1/and FPL Group Capital],
▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, co-counsel to FPL Group [/1/and FPL Group
Capital], Hunton & ▇▇▇▇▇▇▇▇ LLP, Counsel for the Underwriters, and [Morris,
James, Hitchens & ▇▇▇▇▇▇▇▇ LLP], special Delaware counsel to FPL Group
[/1/, FPL Group Capital] and the Trust, opinions (with a copy for each of
the Underwriters) in substantially the form and substance prescribed in
Schedules III, IV, V and VI hereto (i) with such changes therein as may be
agreed upon by the Offerors and the Representatives, with the approval of
Counsel for the Underwriters, and (ii) if the Prospectus relating to the
Offered Securities shall be supplemented or amended after the Prospectus
shall have been filed with the Commission pursuant to Rule 424, with any
changes therein necessary to reflect such supplementation or amendment.
(d) (i) 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
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 Statement on Auditing
Standards No. 71, Interim Financial Information, and in Statement on
Auditing Standards No. 100, Interim Financial Information, on the unaudited
condensed consolidated financial statements of FPL Group, if any,
incorporated by reference in the Prospectus, a reading of the latest
available interim unaudited condensed 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 of the 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
17
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, if any,
incorporated by reference in the Prospectus (1) do not comply as to form in
all material respects with the applicable accounting requirements of the
Securities Act and the Exchange Act and the published rules and regulations
thereunder and (2) except as disclosed in the Prospectus, are not in
conformity with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited consolidated financial
statements of FPL 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 FPL Group's common shareholders' equity, in
each case as compared with amounts shown in the most recent consolidated
balance sheet incorporated by reference in the Prospectus, except in all
instances for changes, increases or decreases which the Prospectus
discloses have occurred or may occur, or as occasioned by the declaration,
provision for, or payment of dividends, or as occasioned by the sale of
common stock pursuant to any employee or director benefit or compensation
plan or the dividend reinvestment plan or the repurchase of common stock by
FPL Group or which are described in such letter; or (c) for the period from
the date of the most recent [condensed] consolidated balance sheet
incorporated by reference in the Prospectus to the latest available interim
balance sheet read by them and for the period from the date of the latest
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.
(e) 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 [/1/(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 disclosed in or contemplated by the
Registration Statement and Prospectus, and (ii) there shall have been no
material transaction entered into by [/1/(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 in or contemplated by the Registration
Statement and the Prospectus, and transactions in the ordinary course of
business; and at the Closing Date, the Representatives shall have received
18
a certificate to such effect from [/1/each of FPL Group Capital and] FPL
Group signed by an officer of [/1/FPL Group Capital or] FPL Group, as the
case may be.
(f) All legal proceedings to be taken in connection with the issuance
and sale of the Preferred Trust Securities and the Trust Guarantee shall
have been satisfactory in form and substance to Counsel for the
Underwriters.
(g) [The Preferred Trust Securities shall have been approved for
listing on The New York Stock Exchange, Inc. ("NYSE") upon official notice
of issuance.]
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 the Offerors. 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.
10. Condition of the Offerors' Obligations. The obligations of the Trust
and FPL Group to deliver the Preferred Trust Securities and the Trust Guarantee,
respectively, to the Representatives for the respective accounts of the
Underwriters and the obligations of [/1/FPL Group Capital and] FPL Group to
deliver the FPL Group [/1/Capital] Subordinated Debentures [/1/and the
Subordinated Guarantee, respectively,] to the Trust shall be subject to the
following condition:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date; no order of the
Commission directed to the adequacy of any Incorporated Document shall be
in effect on the Closing Date, and no proceedings for either such purpose
shall be pending before, or threatened by, the Commission on such date; and
(b) No "Tax Event" (as defined in the Trust Agreement) shall have
occurred and be continuing on the Closing Date.
In case the condition specified above in this Section [10] shall not have
been fulfilled, this agreement may be terminated by the Offerors 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.
11. Indemnification.
(a) The Offerors, jointly and severally, agree to indemnify and hold
harmless each Underwriter, each officer and director of each Underwriter
and each person who controls any Underwriter within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Securities Act or any other
statute or common law and to reimburse each such Underwriter, officer,
director and controlling person for any legal or other expenses (including,
to the extent hereinafter provided, reasonable counsel fees) when and as
incurred by them in connection with investigating any such losses, claims,
19
damages or liabilities or in connection with defending any actions, insofar
as such losses, claims, damages, liabilities, expenses or actions arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus (if used prior to the
Effective Date of the Registration Statement), including all Incorporated
Documents, or in the Registration Statement or the Prospectus, or the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that the indemnity agreement contained in
this subsection (a) of Section [11] shall not apply to any such losses,
claims, damages, liabilities, expenses or actions arising out of, or based
upon, any such untrue statement or alleged untrue statement, or any such
omission or alleged omission, if such statement or omission was made in
reliance upon and in conformity with information furnished in writing, to
the Offerors by or on behalf of any Underwriter, through the
Representatives, expressly for use in connection with the preparation of
any preliminary prospectus, the Registration Statement or the Prospectus or
any amendment or supplement to either thereof, or arising out of, or based
upon, statements in or omissions from the Statements of Eligibility on Form
T-1 of the respective Trustees under the Subordinated Indentures, the Trust
Agreement, the Guarantee Agreement, the Senior Indenture and the Senior
Guarantee Agreement and of the Purchase Contract Agent under the Purchase
Contract Agreement; and provided, further, that the indemnity agreement
contained in this subsection (a) of Section [11] in respect of any
preliminary prospectus (and for purposes of clause (ii) below, the
Prospectus) shall not inure to the benefit of any Underwriter (or of any
officer or director of or person controlling such Underwriter) on account
of any such losses, claims, damages, liabilities, expenses or actions
arising from the sale of the Preferred Trust Securities 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 Preferred Trust
Securities to such person, a copy of any amendment or supplement to the
Prospectus which shall have been furnished subsequent to such written
confirmation and prior to the delivery of such Preferred Trust Securities
to such person, but exclusive of any Incorporated Documents, unless the
alleged omission or alleged untrue statement with respect to such
preliminary prospectus or the Prospectus was not corrected in the
Prospectus or in such amendment or supplement at the time of such delivery
of such Preferred Trust Securities. The indemnity agreement of the Offerors
contained in this subsection (a) of Section [11] and the representations
and warranties of the Trust[, /1/FPL Group Capital] and FPL Group contained
in Sections [3], [4] and [5] hereof, respectively, shall remain operative
and in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter, officer, director or any such controlling
person, and shall survive the delivery of the Preferred Trust Securities.
The Underwriters agree promptly to notify each of the Offerors, and each
other Underwriter, of the commencement of any litigation or proceedings
against them or any of them or any such officer, director or controlling
person in connection with the issuance and sale of the Preferred Trust
Securities.
20
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless each of the Offerors, their respective officers and
directors, and each person who controls the Trust[, /1/FPL Group Capital]
or FPL Group, as the case may be, within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act or any other
statute or common law, and to reimburse each of them for any legal or other
expenses (including, to the extent hereinafter provided, reasonable counsel
fees) when and as incurred by them in connection with investigating any
such losses, claims, damages or liabilities, or in connection with
defending any actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based upon 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 in writing, to the Offerors by or on behalf of such Underwriter,
through the Representatives, expressly for use in connection with the
preparation of the Registration Statement or the Prospectus or any
amendment or supplement to either thereof. The Underwriters hereby furnish
to the Offerors in writing expressly for use in the [preliminary
prospectus, the] Registration Statement and Prospectus, [insert information
provided by the Underwriters]. Each of the Offerors acknowledge that the
statements set forth in the preceding sentence constitute the only
information furnished in writing by or on behalf of the several
Underwriters expressly for inclusion in any preliminary prospectus, the
Registration Statement or the Prospectus. The indemnity agreement of the
respective Underwriters contained in this subsection (b) of Section [11]
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Offerors or any of their
respective officers or directors or any such other Underwriter or any such
controlling person, and shall survive the delivery of the Preferred Trust
Securities. The Offerors agree promptly to notify the Representatives of
the commencement of any litigation or proceedings against any of the
Offerors (or any controlling person thereof) or any of their respective
officers or directors in connection with the issuance and sale of the
Offered Securities.
(c) The Offerors 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 or contribution may be sought under the
provisions of this Section [11], it will promptly give written notice of
the commencement thereof to the party or parties against whom indemnity or
contribution shall be sought thereunder, but the omission so to notify such
indemnifying party or parties of any such action shall not relieve such
indemnifying party or parties from any liability which it or they may have
to the indemnified party otherwise than on account of such indemnity
agreement. In case such notice of any such action shall be so given, such
indemnifying party or parties shall be entitled to participate at its own
expense in the defense or, if it so elects, to assume (in conjunction with
any other indemnifying parties) the defense of such action, in which event
such defense shall be conducted by counsel chosen by such indemnifying
party or parties and reasonably satisfactory to the indemnified party or
21
parties who shall be defendant or defendants in such action, and such
defendant or defendants shall bear the fees and expenses of any additional
counsel retained by them; but if each of the indemnifying parties shall
elect not to assume the defense of such action, such indemnifying party or
parties will reimburse such indemnified party or parties for the reasonable
fees and expenses of any counsel retained by them; provided, however, if
the defendants in any such action include both the indemnified party and
the indemnifying party and counsel for the indemnifying party shall have
reasonably concluded that there may be a conflict of interest involved in
the representation by such counsel of both the indemnifying party and the
indemnified party, the indemnified party or parties shall have the right to
select separate counsel, satisfactory to the indemnifying party or parties,
to participate in the defense of such action on behalf of such indemnified
party or parties at the expense of the indemnifying party or parties (it
being understood, however, that the indemnifying party or parties shall not
be liable for the expenses of more than one separate counsel representing
the indemnified parties who are parties to such action). The Offerors and
the several Underwriters each agree that without the prior written consent
of the other parties to such action who are parties to this agreement,
which consent shall not be unreasonably withheld, it will not settle,
compromise or consent to the entry of any judgment in any claim or
proceeding in respect of which such party intends to seek indemnity or
contribution under the provisions of this Section [11], unless such
settlement, compromise or consent (i) includes an unconditional release of
such other parties from all liability arising out of such claim or
proceeding and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of such other
parties.
(d) If, or to the extent, the indemnification provided for in
subsections (a) or (b) above shall be unenforceable under applicable law by
an indemnified party, each indemnifying party agrees to contribute to such
indemnified party with respect to any and all losses, claims, damages,
liabilities and expenses for which each such indemnification provided for
in subsections (a) or (b) above shall be unenforceable, in such proportion
as shall be appropriate to reflect (i) the relative fault of the Offerors
on the one hand and the Underwriters on the other in connection with the
statements or omissions which have resulted in such losses, claims,
damages, liabilities and expenses, (ii) the relative benefits received by
the Offerors on the one hand and the Underwriters on the other hand from
the offering of the Preferred Trust Securities pursuant to this agreement,
and (iii) any other relevant equitable considerations; provided, however,
that no indemnified party guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution with respect thereto from any indemnifying party not guilty of
such fraudulent misrepresentation. Relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Offerors or the
Underwriters and each such party's relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Offerors and each of the Underwriters agree that it would not
be just and equitable if contribution pursuant to this subsection (d) were
to be determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute in excess of the amount
equal to the excess of (i) the total price at which the Preferred Trust
22
Securities underwritten by it were offered to the public, over (ii) the
amount of any damages which such Underwriter has otherwise been required to
pay by reason of any such untrue or alleged untrue statement or omission or
alleged omission. The obligations of each Underwriter to contribute
pursuant to this subsection (d) are several and not joint and shall be in
the same proportion as such Underwriter's obligation to underwrite
Preferred Trust Securities is to the total amount of Preferred Trust
Securities set forth in Schedule II hereto.
12. Termination. This agreement may be terminated by the Representatives
by delivering written notice thereof to the Offerors, at any time prior to the
Closing Date, if after the date hereof and at or prior to the Closing Date:
(a) (i) there shall have occurred any general suspension of trading in
securities on the NYSE or there shall have been established by the NYSE or
by the Commission or by any federal or state agency or by the decision of
any court any limitation on prices for such trading or any general
restrictions on the distribution of securities, or trading in any
securities of FPL Group [/1/or FPL Group Capital] shall have been suspended
or limited by any exchange located in the United States or on the
over-the-counter market located in the United States or a general banking
moratorium declared by New York or federal authorities or (ii) there shall
have occurred any material adverse change in the financial markets in the
United States, any outbreak of hostilities, including, but not limited to,
an escalation of hostilities which existed prior to the date of this
agreement, any other national or international calamity or crisis or any
material adverse change in financial, political or economic conditions
affecting the United States, the effect of any such event specified in this
clause (ii) being such as to make it, in the reasonable judgment of the
Representative, impracticable or inadvisable to proceed with the offering
of the Preferred Trust Securities as contemplated in the Prospectus or for
the Underwriters to enforce contracts for the sale of the Preferred Trust
Securities, or
(b) (i) there shall have been any downgrading or any notice of any
intended or potential downgrading in the ratings accorded to the Preferred
Trust Securities or the FPL Group [/1/Capital] Subordinated Debentures or
any securities of FPL Group [/1/Capital] which are of the same class as the
FPL Group [/1/Capital] Subordinated Debentures by either ▇▇▇▇▇'▇ Investors
Service, Inc. ("Moody's") or Standard & Poor's Ratings Services, a division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P"), or (ii) either Moody's or S&P
shall have publicly announced that either has under surveillance or review,
with possible negative implications, its ratings of the Preferred Trust
Securities or the FPL Group [/1/Capital] Subordinated Debentures or any
securities of FPL Group [/1/Capital] which are of the same class as the FPL
Group [/1/Capital] Subordinated Debentures, the effect of any such event
specified in (i) or (ii) above which, in the reasonable judgment of the
Representatives, makes it impracticable or inadvisable to consummate the
sale of the Preferred Trust Securities and the delivery of the Preferred
Trust Securities by the several Underwriters at the initial public offering
price.
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 the Offerors after the date hereof reflects a material adverse
23
change in the business, properties or financial condition of FPL Group and its
subsidiaries taken as a whole [/1/or FPL Group Capital 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 Preferred
Trust Securities, as the case may be, 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, without regard to conflicts of
law principles thereunder. This agreement shall inure to the benefit of, and be
binding upon, the Offerors, the several Underwriters and, with respect to the
provisions of Section [11] hereof, each officer, director or 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 or entity any legal or equitable right, remedy or claim under or in
respect of this agreement or any provision herein contained. The term
"successors" as used in this agreement shall not include any purchaser, as such
purchaser, of any Preferred Trust Securities 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[/1/, FPL Group Capital] or the Trust, shall be mailed or delivered to it
at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer.
24
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 [/1/Capital] Trust __
By:
---------------------------
Name:
Title: Administrative
Trustee
FPL Group, Inc.
By:
---------------------------
Name:
Title:
[/1/FPL Group Capital Inc]
By:
---------------------------
Name:
Title:
Accepted and delivered as of the date first above written:
------------------------------
By:
---------------------------
Name:
Title:
Acting on [its] [their] own behalf and on behalf of the other several
Underwriters referred to in the foregoing agreement.
25
SCHEDULE I
Underwriting Agreement dated _______, 200__
Registration Statement [Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇, and
▇▇▇-▇▇▇▇▇▇-▇▇ and Registration Statement] Nos. 333-_______, 333-_______-01,
333-_______-02, 333-_______-03, 333-_______-04 and 333-_______-05
Representatives and Addresses:
Preferred Trust Securities:
Designation:
Number of Preferred Trust Securities:
Aggregate Liquidation Amount: $
Public Offering Price: $
Underwriting Discount: $
Purchase Price: $
Dealers' Concession: $
Closing Date, Time and Location:
________, 200__ at the offices of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ at ____ a.m.
FPL Group [/1/Capital] Subordinated Debentures:
Designation:
Principal Amount:
Date of Maturity:
Interest Rate:
I-1
SCHEDULE II
Number of
Preferred Trust
Underwriter Securities
-----------
---------------
Total......................................... ===============
II-1
SCHEDULE III
[LETTERHEAD OF STEEL ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP]
[Date]
as Representatives of the Underwriters
named in Schedule II to the
Agreement, as herein described
Ladies and Gentlemen:
We have acted as counsel to FPL Group, Inc. ("FPL Group") [, /1/FPL Group
Capital Inc ("FPL Group Capital")] and FPL Group [Capital] Trust __ ("Trust") in
connection with (a) the authorization and issuance (i) by the Trust of $_____
aggregate liquidation amount of its Preferred Trust Securities (the "Preferred
Trust Securities"), (ii) by FPL Group [/1/Capital] of $_________ aggregate
principal amount of its Junior Subordinated Debentures, Series due __________
(the "Junior Subordinated Debentures"), issued under the Indenture (For
Unsecured Subordinated Debentures relating to Trust Securities), dated as of
[/1/March 1, 2004] [/2/_____________] (the "Subordinated Indenture"),
[/2/between] [/1/among] FPL Group [/1/Capital], as issuer, [/1/FPL Group, as
guarantor,] and The Bank of New York, as Subordinated Indenture Trustee, and
(iii) the guarantee by FPL Group on a subordinated basis of [/1/(x) the Junior
Subordinated Debentures ("Subordinated Debenture Guarantee") pursuant to the
terms of the Subordinated Indenture and (y)] the Preferred Trust Securities (the
"Preferred Trust Securities Guarantee," [/1/and together with the Subordinated
Debenture Guarantee, the "Subordinated Guarantees"]), pursuant to the Preferred
Trust Securities Guarantee Agreement, dated as of __________ (the "Preferred
Trust Securities Guarantee Agreement"), between FPL Group, as guarantor, and The
Bank of New York, as Preferred Trust Securities Guarantee Trustee, and (b) the
sale of the Preferred Trust Securities to you in accordance with the
Underwriting Agreement, dated __________ (the "Agreement"), among you, FPL
Group[, 1FPL Group Capital] and the Trust. Capitalized terms used in this
opinion but not defined shall have the meanings set forth in the Agreement.
We have participated in the preparation of or reviewed (1) [Registration
Statement Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇, and ▇▇▇-▇▇▇▇▇▇-▇▇,
which became effective on April 3, 2003, which registration statement was filed
by FPL Group, FPL Group Capital, the Trust and FPL Group Capital Trust I with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Securities Act")] (2) Registration Statement Nos.
333-_______, 333-_______-01, 333-_______-02, 333-________-03, 333-_______-04 and
333-_______-05, which became effective on ___________which registration
statement was filed by FPL Group, FPL Group Capital, the Trust, FPL Group
Capital Trust __, FPL Group [Capital] Trust __ and FPL Group Trust __ with the
III-1
Commission under the Securities Act (references herein to the term "Registration
Statement" as of any given date shall mean [Registration Statement Nos.
333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇▇-▇▇ and] Registration
Statement Nos. 333-_______, 333-_______-01, 333-_______-02, 333-________-03,
333-_______-04 and 333-_______-05, [each] as amended and supplemented to such
date, including those documents incorporated by reference therein as of such
date pursuant to Item 12 of Form S-3 under the Securities Act (the "Incorporated
Documents")); (3) the [combined] prospectus dated __________ forming a part of
Registration Statement Nos. 333-_______, 333-_______-01, 333-_______-02,
333-________-03, 333-______-04 and 333-_______-05, as supplemented by a
prospectus supplement dated __________ relating to the Preferred Trust
Securities, Junior Subordinated Debentures and [/2/the Preferred Trust
Securities Guarantee] [/1/the Subordinated Guarantees], both such prospectus and
prospectus supplement filed pursuant to Rule 424(b) under the Securities Act
("Rule 424" and references herein to the "Prospectus" as of any given date shall
refer to such prospectus, as supplemented by the prospectus supplement relating
to the Preferred Trust Securities, Junior Subordinated Debentures and [/2/the
Preferred Trust Securities Guarantee] [/1/the Subordinated Guarantees] filed
pursuant to Rule 424, and as further amended and supplemented to such date,
including the Incorporated Documents); (4) the Subordinated Indenture; (5) the
Preferred Trust Securities Guarantee Agreement; (6) the Agreement as to Expenses
and Liabilities, dated as of __________ ("Agreement as to Expenses"), between
FPL Group and the Trust; (7) the Amended and Restated Trust Agreement, dated as
of __________ (the "Trust Agreement"), among The Bank of New York, as Property
Trustee, The Bank of New York (Delaware), as Delaware Trustee, FPL Group, as
depositor, certain employees of FPL Group, as Administrative Trustees, and the
several Holders (as defined therein); (8) the corporate proceedings of FPL Group
with respect to the Registration Statement, the Subordinated Indenture [/2/the
Junior Subordinated Debentures], [/2/the Preferred Trust Securities Guarantee]
[/1/, the Subordinated Guarantees], the Preferred Trust Securities Guarantee
Agreement, the Trust Agreement and the Agreement as to Expenses; [/1/(9) the
corporate proceedings of FPL Group Capital with respect to the Registration
Statement, the Subordinated Indenture and the Junior Subordinated Debentures;]
(10) FPL Group's Restated Articles of Incorporation as amended to the date
hereof (the "FPL Group Charter") and Bylaws as amended to the date hereof (the
"FPL Group Bylaws"); [/1/(11) FPL Group Capital's Articles of Incorporation as
amended to the date hereof (the "FPL Group Capital Charter;" and each of the FPL
Group Charter and the FPL Group Capital Charter, a "Charter") and Bylaws as
amended to the date hereof (the "FPL Group Capital Bylaws")]; and (12) such
other corporate records, certificates and other documents and such questions of
law as we have considered necessary or appropriate for the purposes of this
opinion.
Upon the basis of the foregoing, we advise you that:
I.
FPL Group [/1/and FPL Group Capital each] is a validly organized and
existing corporation and is in good standing under the laws of the State of
Florida, and [/1/each] has valid franchises, licenses and permits adequate for
the conduct of its [/1/respective] businesses.
II.
III-2
FPL Group [/1/and FPL Group Capital each] is a corporation duly authorized
by its Charter to conduct the businesses which it is now conducting as set forth
in the Prospectus.
III.
The Subordinated Indenture has been duly authorized by [/1/FPL Group
Capital and] FPL Group by all necessary corporate action, has been duly and
validly executed and delivered by [/1/FPL Group Capital and] FPL Group, and is a
valid and binding obligation of [/1/FPL Group Capital and] FPL Group enforceable
against [/1/FPL Group Capital and] FPL Group 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 Junior Subordinated Debentures are valid and binding obligations of FPL
Group [/1/Capital] enforceable against FPL Group [/1/Capital] 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.
V.
The Preferred Trust Securities Guarantee Agreement and Agreement as to
Expenses have been duly authorized by FPL Group by all necessary corporate
action, have been duly and validly executed and delivered by FPL Group, and are
valid and binding obligations of FPL Group enforceable against FPL Group 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.
VI.
To our knowledge after due inquiry, [/1/FPL Group Capital or one or more of
its direct or indirect subsidiaries has good and marketable title to all of the
membership interests in FPL Energy, LLC and ESI Energy LLC free and clear of all
liens and encumbrances, except such as do not materially affect the value
thereof, and] FPL Group or one or more of its direct or indirect subsidiaries
has good and marketable title to all of the common stock of Florida Power &
Light Company and FPL Group Capital free and clear of all liens and
encumbrances, except such as do not materially affect the value thereof.
VII.
Except as to the financial statements and other financial or statistical
data contained or incorporated by reference therein, as to which we express no
opinion, and except for those parts of the Registration Statement that
constitute the Statements of Eligibility on Form T-1, as to which we express no
opinion, the Registration Statement, at the Effective Date and the Prospectus,
at the 424 Date, complied as to form in all material respects with the
applicable requirements of the Securities Act and the applicable instructions,
III-3
rules and regulations of the Commission thereunder. The Incorporated Documents
(except as to the financial statements and other financial or statistical data
contained or incorporated by reference therein, as to which we express no
opinion), at the time they were filed with the Commission, complied as to form
in all material respects with the applicable requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the applicable
instructions, rules and regulations of the Commission thereunder. The
Registration Statement became, and is, at the date hereof, effective under the
Securities Act, and to the best of our knowledge, no proceedings for a stop
order with respect thereto are pending or threatened under Section 8 of the
Securities Act.
VIII.
The consummation of the transactions contemplated in the Agreement and the
fulfillment of the terms contained in the Agreement and, with respect to (i) the
Junior Subordinated Debentures, the compliance by FPL Group [/1/Capital and FPL
Group] with all the terms and provisions of the Subordinated Indenture
[/1/applicable to each of them] and (ii) the Preferred Trust Securities, the
compliance by FPL Group with all the terms and provisions of the Preferred Trust
Securities Guarantee Agreement, Preferred Trust Securities Guarantee, Trust
Agreement and Agreement as to Expenses, will not result in a breach of any of
the terms or provisions of, or constitute a default under, as the case may be,
the FPL Group Charter or the FPL Group Bylaws [/1/or the FPL Group Capital
Charter or the FPL Group Capital Bylaws], or any indenture, mortgage, deed of
trust or other agreement or instrument the terms of which are known to us to
which FPL Group [/1/or FPL Group Capital,] or any of [/1/their respective]
[/2/its] subsidiaries [/1/, 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 [/1/or FPL Group Capital, each]
together with [/1/their respective] [/2/its] respective subsidiaries taken as a
whole [/1/, as the case may be].
IX.
To the best of our knowledge, 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, as to which we express no
opinion, and other than those that have been obtained) is legally required for
the authorization of the issuance and sale of the Junior Subordinated Debentures
[/1/as guaranteed pursuant to the Subordinated Debenture Guarantee] or the
Preferred Trust Securities as guaranteed pursuant to the Preferred Trust
Securities Guarantee.
X.
The statements made in the Prospectus under the headings ["Description of
Preferred Trust Securities," "Description of the Preferred Trust Securities
Guarantee," and "Description of the Junior Subordinated Debentures and the
Subordinated Guarantee,"] insofar as they purport to constitute summaries of the
terms of the documents referred to therein, constitute accurate summaries of the
terms of such documents in all material respects.
XI.
The Subordinated Indenture [/1/(including the Subordinated Debenture
Guarantee)], the Preferred Trust Securities Guarantee Agreement and the Trust
Agreement are duly qualified under the Trust Indenture Act of 1939, as amended.
III-4
XII.
The Agreement has been duly and validly authorized, executed and delivered
by [/1/each of] FPL Group [, 1FPL Group Capital] and the Trust.
XIII.
[The Preferred Trust Securities have been listed, upon official notice of
issuance on The New York Stock Exchange, Inc.]
XIV.
Except as stated or referred to in the Prospectus, to our knowledge after
due inquiry, there is no material pending legal proceeding to which FPL Group or
any of its subsidiaries [/1/or FPL Group Capital or any of its subsidiaries is a
party] or of which property of FPL Group or any of its subsidiaries [/1/or FPL
Group Capital or any of its subsidiaries] is the subject which is reasonably
likely to be determined adversely and, if determined adversely, might reasonably
be expected to have a material adverse effect on FPL Group and its subsidiaries
taken as a whole [/1/or FPL Group Capital and its subsidiaries taken as a whole,
as the case may be], and, to the best of our knowledge, no such proceeding is
known to be contemplated by governmental authorities.
In rendering the foregoing opinion, we have assumed that the certificates
representing the Common Trust Securities of the Trust (the "Common Trust
Securities"), the Preferred Trust Securities and the Junior Subordinated
Debentures will conform to specimens examined by us, that the Junior
Subordinated Debentures will be duly authenticated by the Subordinated Indenture
Trustee under the Subordinated Indenture, that the certificates representing the
Common Trust Securities and the Preferred Trust Securities will, if required by
the Subordinated Indenture, be duly countersigned by the transfer agent and duly
registered by the registrar thereof, and that the Preferred Trust Securities and
Junior Subordinated Debentures will be delivered against payment of the purchase
price as provided in the Agreement and that the signatures on all documents
examined by us are genuine, assumptions which we have not independently
verified. [Insert additional assumptions, if applicable.]
Other than with respect to the opinion expressed in Paragraph X hereof, we
have not ourselves checked the accuracy or completeness of, or otherwise
verified, the information furnished with respect to matters in the Registration
Statement or the Prospectus. We have generally reviewed and discussed such
information with certain officers and employees of FPL Group [/1/and FPL Group
Capital], certain of [/2/its] [/1/their] other legal counsel, [/2/its]
[/1/their] independent public accountants and your representatives.
Additionally, as counsel to FPL Group [/1/and FPL Group Capital], we have
responsibility for certain of [/2/its] [/1/their] legal matters. On the basis of
such consideration, review and discussion, but without independent check or
verification except as stated, nothing has come to our attention that would lead
us to believe (except as to the financial statements and other financial or
statistical data contained or incorporated by reference therein, as to which we
express no belief, and except for those parts of the Registration Statement that
constitute the Statements of Eligibility on Form T-1, as to which we express no
belief), that [any part of] the Registration Statement, [at the Effective Date]
[when such part became effective], contained an untrue statement of a material
III-5
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements contained therein not misleading or
(except as aforesaid) that the Prospectus at the 424 Date included, or at the
date hereof includes, an untrue statement of a material fact or the Prospectus
at the 424 Date omitted, or at the date hereof omits, to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
We are members of the Florida Bar and do not hold ourselves out as experts
on the laws of New York or the laws of Delaware, and accordingly, this opinion
is limited to the laws of Florida and the federal laws of the United States
insofar as they bear on matters covered hereby. As to all matters of New York
law, we have relied, with your consent, upon an opinion of even date herewith
addressed to you by ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, New York, New York. As to all
matters of Delaware law, we have relied, with your consent, upon an opinion of
even date herewith addressed to you by [Morris, James, Hitchens & ▇▇▇▇▇▇▇▇ LLP],
Wilmington, Delaware, including the assumptions, qualifications, limitations and
exceptions therein. As to all matters of Florida law, ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP
and Hunton & ▇▇▇▇▇▇▇▇ LLP are hereby authorized to rely upon this opinion as
though it were rendered to each of them.
This opinion is rendered to you in connection with the above-described
transaction. This opinion may not be relied upon by you for any other purpose,
or relied upon or furnished to any other person, firm or corporation without our
prior written permission. This opinion is expressed as of the date hereof, and
we do not assume any obligation to update or supplement it to reflect any fact
or circumstance that hereafter comes to our attention, or any change in law that
hereafter occurs.
Very truly yours,
STEEL ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
III-6
SCHEDULE IV
[LETTERHEAD OF ▇▇▇▇▇▇ ▇▇▇▇ & PRIEST LLP]
[Date]
as Representatives of the Underwriters
named in Schedule II to the
Agreement, as herein described
Ladies and Gentlemen:
We have acted as special counsel to FPL Group, Inc. ("FPL Group") [/1/,
FPL Group Capital Inc ("FPL Group Capital")] and FPL Group [Capital] Trust __
("Trust") in connection with (a) the authorization and issuance (i) by the Trust
of $_____ aggregate liquidation amount of its Preferred Trust Securities (the
"Preferred Trust Securities"), (ii) by FPL Group [/1/Capital] of $_________
aggregate principal amount of its Junior Subordinated Debentures, Series due
__________ (the "Junior Subordinated Debentures"), issued under the Indenture
(For Unsecured Subordinated Debentures relating to Trust Securities), dated as
of [/1/March 1, 2004] [/2/_____________] (the "Subordinated Indenture"),
[/2/between] [/1/among] FPL Group [/1/Capital], as issuer, [/1/FPL Group, as
guarantor,] and The Bank of New York, as Subordinated Indenture Trustee, and
(iii) the guarantee by FPL Group on a subordinated basis of [/1/(x) the Junior
Subordinated Debentures ("Subordinated Debenture Guarantee") pursuant to the
terms of the Subordinated Indenture and (y)] the Preferred Trust Securities (the
"Preferred Trust Securities Guarantee," [/1/and together with the Subordinated
Debenture Guarantee, the "Subordinated Guarantees"]), pursuant to the Preferred
Trust Securities Guarantee Agreement, dated as of __________ (the "Preferred
Trust Securities Guarantee Agreement"), between FPL Group, as guarantor, and The
Bank of New York, as Preferred Trust Securities Guarantee Trustee, and (b) the
sale of the Preferred Trust Securities to you in accordance with the
Underwriting Agreement, dated __________ (the "Agreement"), among you, FPL
Group[, 1FPL Group Capital] and the Trust. Capitalized terms used in this
opinion but not defined shall have the meanings set forth in the Agreement.
We have participated in the preparation of or reviewed (1) [Registration
Statement Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇, and ▇▇▇-▇▇▇▇▇▇-▇▇,
which became effective on April 3, 2003, which registration statement was filed
by FPL Group, FPL Group Capital, the Trust and FPL Group Capital Trust I with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Securities Act")] (2) Registration Statement Nos.
333-_______, 333-_______-01, 333-_______-02, 333-________-03, 333-_______-04 and
333-_______-05, which became effective on ___________which registration
statement was filed by FPL Group, FPL Group Capital, the Trust, FPL Group
Capital Trust __, FPL Group [Capital] Trust __ and FPL Group Trust __ with the
Commission under the Securities Act (references herein to the term "Registration
IV-1
Statement" as of any given date shall mean [Registration Statement Nos.
333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇▇-▇▇ and] Registration
Statement Nos. 333-_______, 333-_______-01, 333-_______-02, 333-________-03,
333-_______-04 and 333-_______-05, [each] as amended and supplemented to such
date, including those documents incorporated by reference therein as of such
date pursuant to Item 12 of Form S-3 under the Securities Act (the "Incorporated
Documents")); (3) the [combined] prospectus dated __________ forming a part of
Registration Statement Nos. 333-_______, 333-_______-01, 333-_______-02,
333-________-03, 333-______-04 and 333-_______-05, as supplemented by a
prospectus supplement dated __________ relating to the Preferred Trust
Securities, Junior Subordinated Debentures and [/2/the Preferred Trust
Securities Guarantee] [/1/the Subordinated Guarantees], both such prospectus and
prospectus supplement filed pursuant to Rule 424(b) under the Securities Act
("Rule 424" and references herein to the "Prospectus" as of any given date shall
refer to such prospectus, as supplemented by the prospectus supplement relating
to the Preferred Trust Securities, Junior Subordinated Debentures and [/2/the
Preferred Trust Securities Guarantee] [/1/the Subordinated Guarantees] filed
pursuant to Rule 424, and as further amended and supplemented to such date,
including the Incorporated Documents); (4) the Subordinated Indenture; (5) the
Preferred Trust Securities Guarantee Agreement; (6) the Agreement as to Expenses
and Liabilities, dated as of __________ ("Agreement as to Expenses"), between
FPL Group and the Trust; (7) the Amended and Restated Trust Agreement, dated as
of __________ (the "Trust Agreement"), among The Bank of New York, as Property
Trustee, The Bank of New York (Delaware), as Delaware Trustee, FPL Group, as
depositor, certain employees of FPL Group, as Administrative Trustees, and the
several Holders (as defined therein); (8) the corporate proceedings of FPL Group
with respect to the Registration Statement, the Subordinated Indenture [/2/the
Junior Subordinated Debentures], [/2/the Preferred Trust Securities Guarantee]
[/1/, the Subordinated Guarantees], the Preferred Trust Securities Guarantee
Agreement, the Trust Agreement and the Agreement as to Expenses; [/1/(9) the
corporate proceedings of FPL Group Capital with respect to the Registration
Statement, the Subordinated Indenture and the Junior Subordinated Debentures;]
(10) FPL Group's Restated Articles of Incorporation as amended to the date
hereof (the "FPL Group Charter") and Bylaws as amended to the date hereof (the
"FPL Group Bylaws"); [/1/(11) FPL Group Capital's Articles of Incorporation as
amended to the date hereof (the "FPL Group Capital Charter;" and each of the FPL
Group Charter and the FPL Group Capital Charter, a "Charter") and Bylaws as
amended to the date hereof (the "FPL Group Capital Bylaws")]; and (12) such
other corporate records, certificates and other documents and such questions of
law as we have considered necessary or appropriate for the purposes of this
opinion.
Upon the basis of the foregoing, we advise you that:
I.
The Subordinated Indenture has been duly authorized by [/1/FPL Group
Capital and] FPL Group by all necessary corporate action, has been duly and
validly executed and delivered by [/1/FPL Group Capital and] FPL Group, and is a
valid and binding obligation of [/1/FPL Group Capital and] FPL Group enforceable
against [/1/FPL Group Capital and] FPL Group 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-2
II.
The Junior Subordinated Debentures are valid and binding obligations of FPL
Group [/1/Capital] enforceable against FPL Group [/1/Capital] 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.
III.
The Preferred Trust Securities Guarantee Agreement and Agreement as to
Expenses have been duly authorized by FPL Group by all necessary corporate
action, have been duly and validly executed and delivered by FPL Group, and are
valid and binding obligations of FPL Group enforceable against FPL Group 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.
IV.
To our knowledge after due inquiry, [/1/FPL Group Capital or one or more of
its direct or indirect subsidiaries has good and marketable title to all of the
membership interests in FPL Energy, LLC and ESI Energy LLC free and clear of all
liens and encumbrances, except such as do not materially affect the value
thereof, and] FPL Group or one or more of its direct or indirect subsidiaries
has good and marketable title to all of the common stock of Florida Power &
Light Company and FPL Group Capital free and clear of all liens and
encumbrances, except such as do not materially affect the value thereof.
V.
Except as to the financial statements and other financial or statistical
data contained or incorporated by reference therein, as to which we express no
opinion, and except for those parts of the Registration Statement that
constitute the Statements of Eligibility on Form T-1, as to which we express no
opinion, the Registration Statement, at the Effective Date and the Prospectus,
at the 424 Date, complied as to form in all material respects with the
applicable requirements of the Securities Act and the applicable instructions,
rules and regulations of the Commission thereunder. The Incorporated Documents
(except as to the financial statements and other financial or statistical data
contained or incorporated by reference therein, as to which we express no
opinion), at the time they were filed with the Commission, complied as to form
in all material respects with the applicable requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the applicable
instructions, rules and regulations of the Commission thereunder. The
Registration Statement became, and is, at the date hereof, effective under the
Securities Act, and to the best of our knowledge, no proceedings for a stop
order with respect thereto are pending or threatened under Section 8 of the
Securities Act.
VI.
The consummation of the transactions contemplated in the Agreement and
the fulfillment of the terms contained in the Agreement and, with respect to (i)
the Junior Subordinated Debentures, the compliance by FPL Group [/1/Capital and
FPL Group] with all the terms and provisions of the Subordinated Indenture
IV-3
[/1/applicable to each of them] and (ii) the Preferred Trust Securities, the
compliance by FPL Group with all the terms and provisions of the Preferred Trust
Securities Guarantee Agreement, Preferred Trust Securities Guarantee, Trust
Agreement and Agreement as to Expenses, will not result in a breach of any of
the terms or provisions of, or constitute a default under, as the case may be,
the FPL Group Charter or the FPL Group Bylaws [/1/or the FPL Group Capital
Charter or the FPL Group Capital Bylaws], or any indenture, mortgage, deed of
trust or other agreement or instrument the terms of which are known to us to
which FPL Group [/1/or FPL Group Capital,] or any of [/1/their respective]
[/2/its] subsidiaries [/1/, 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 [/1/or FPL Group Capital, each]
together with [/1/their respective] [/2/its] respective subsidiaries taken as a
whole [/1/, as the case may be].
VII.
To the best of our knowledge, 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, as to which we express no
opinion, and other than those that have been obtained) is legally required for
the authorization of the issuance and sale of the Junior Subordinated Debentures
[/1/as guaranteed pursuant to the Subordinated Debenture Guarantee] or the
Preferred Trust Securities as guaranteed pursuant to the Preferred Trust
Securities Guarantee.
VIII.
The statements made in the Prospectus under the headings ["Description of
Preferred Trust Securities," "Description of the Preferred Trust Securities
Guarantee," and "Description of the Junior Subordinated Debentures [/1/and the
Subordinated Guarantee,]" insofar as they purport to constitute summaries of the
terms of the documents referred to therein, constitute accurate summaries of the
terms of such documents in all material respects.
IX.
The Subordinated Indenture [/1/(including the Subordinated Debenture
Guarantee)], the Preferred Trust Securities Guarantee Agreement and the Trust
Agreement are duly qualified under the Trust Indenture Act of 1939, as amended.
X.
The Agreement has been duly and validly authorized, executed and delivered
by FPL Group[,1FPL Group Capital] and the Trust.
XI.
[The Preferred Trust Securities have been approved for listing on The New
York Stock Exchange, Inc.]
IV-4
We herewith confirm as our opinion the statements under the caption
"Material United States Federal Income Tax Consequences Relating to the
Preferred Trust Securities" in the Prospectus.
In rendering the foregoing opinion, we have assumed that the certificates
representing the Common Trust Securities of the Trust (the "Common Trust
Securities"), the Preferred Trust Securities and the Junior Subordinated
Debentures will conform to specimens examined by us, that the Junior
Subordinated Debentures will be duly authenticated by the Subordinated Indenture
Trustee under the Subordinated Indenture, that the certificates representing the
Common Trust Securities and the Preferred Trust Securities will, if required by
the Subordinated Indenture, be duly countersigned by the transfer agent and duly
registered by the registrar thereof, and that the Preferred Trust Securities and
Junior Subordinated Debentures will be delivered against payment of the purchase
price as provided in the Agreement and that the signatures on all documents
examined by us are genuine, assumptions which we have not independently
verified. [Insert additional assumptions, if applicable.]
Other than with respect to the opinion expressed in Paragraph VIII hereof,
we have not ourselves checked the accuracy or completeness of, or otherwise
verified, the information furnished with respect to matters in the Registration
Statement or the Prospectus. We have generally reviewed and discussed such
information with certain officers and employees of FPL Group [/1/and FPL Group
Capital], certain of [/2/its] [/1/their] other legal counsel, [/2/its]
[/1/their] independent public accountants and your representatives. On the basis
of such consideration, review and discussion, but without independent check or
verification except as stated, nothing has come to our attention that would lead
us to believe (except as to the financial statements and other financial or
statistical data contained or incorporated by reference therein, as to which we
express no belief, and except for those parts of the Registration Statement that
constitute the Statements of Eligibility on Form T-1, as to which we express no
belief), that [any part of] the Registration Statement, [at the Effective Date]
[when such part became effective], contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements contained therein not misleading or
(except as aforesaid) that the Prospectus at the 424 Date included, or at the
date hereof includes, an untrue statement of a material fact or the Prospectus
at the 424 Date omitted, or at the date hereof omits, to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
We are members of the New York Bar and do not hold ourselves out as experts
on the laws of Florida or the laws of Delaware. We do not pass upon matters
governed by Florida law, including, without limitation, the incorporation of
[/1/FPL Group Capital or] FPL Group, titles to property or franchises. As to all
matters of Florida law, we have relied, with your consent, upon an opinion of
even date herewith addressed to you by Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, Miami, Florida.
As to all matters of Delaware law, we have relied, with your consent, upon an
opinion of even date herewith addressed to you by [Morris, James, Hitchens &
▇▇▇▇▇▇▇▇ LLP], Wilmington, Delaware, including the assumptions, qualifications,
limitations and exceptions therein. As to all matters of New York law, Steel
▇▇▇▇▇▇ & ▇▇▇▇▇ LLP is hereby authorized to rely upon this opinion as though it
were rendered to Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP.
IV-5
This opinion is rendered to you in connection with the above-described
transaction. This opinion may not be relied upon by you for any other purpose,
or relied upon or furnished to any other person, firm or corporation without our
prior written permission. This opinion is expressed as of the date hereof, and
we do not assume any obligation to update or supplement it to reflect any fact
or circumstance that hereafter comes to our attention, or any change in law that
hereafter occurs.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇ & PRIEST LLP
IV-6
SCHEDULE V
[LETTERHEAD OF HUNTON & ▇▇▇▇▇▇▇▇ LLP]
[Date]
as Representatives of the Underwriters
named in Schedule II to the Agreement,
as herein described
Ladies and Gentlemen:
We have acted as counsel for you in connection with your several purchases
from FPL Group [/1/Capital] Trust __ (the "Trust") of $___________ aggregate
liquidation amount of its Preferred Trust Securities (the "Preferred Trust
Securities"), which Preferred Trust Securities are guaranteed on a subordinated
basis (the "Preferred Trust Securities Guarantee") by FPL Group, Inc. ("FPL
Group") pursuant to the Preferred Trust Securities Guarantee Agreement dated as
of __________ (the "Preferred Trust Securities Guarantee Agreement"), between
FPL Group, as guarantor, and The Bank of New York, as Preferred Trust Securities
Guarantee Trustee, and the related transactions. Capitalized terms used in this
opinion but not defined shall have the meaning set forth in the Underwriting
Agreement, dated __________, among FPL Group[/1/, FPL Group Capital Inc ("FPL
Group Capital")] and the Trust (the "Agreement"). Capitalized terms used in this
opinion but not defined shall have the meanings set forth in the Agreement.
We have examined such documents and satisfied ourselves as to such other
matters as we have deemed necessary in order to enable us to express this
opinion.
Based on the foregoing, we are of the opinion that:
1. The Subordinated Indenture has been duly authorized by FPL Group
[/1/Capital] by all necessary corporate action, has been duly and validly
executed and delivered by [/1/FPL Group Capital and] FPL Group, and is a valid
and binding obligation of FPL Group [/1/Capital] enforceable against FPL Group
[/1/Capital] 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.
2. The Junior Subordinated Debentures are valid and binding obligations
of FPL Group [/1/Capital] enforceable against FPL Group [/1/Capital] 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.
3. The Preferred Trust Securities Guarantee Agreement and the Agreement
as to Expenses and Liabilities, dated as of __________, each has been duly
authorized by FPL Group by all necessary corporate action, have been duly and
validly executed and delivered by FPL Group, and is a valid and binding
V-1
obligation of FPL Group enforceable against FPL Group in accordance with its
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.
4. The Agreement has been duly authorized, executed and delivered by FPL
Group[, 1FPL Group Capital] and the Trust.
5. [Registration Statement Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇
and ▇▇▇-▇▇▇▇▇▇-▇▇ and] Registration Statement Nos. 333-______, 333-______-01,
333-_______-02, 333-_______-03, 333-_______-04 and 333-_______-05
([collectively,] 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 we do not pass and except for those parts of the Registration
Statement that constitute the Statements of Eligibility on Form T-1, upon which
we do 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 we
do not pass), at the time they were filed with the Commission, complied as to
form in all material respects with the applicable requirements of the Exchange
Act and the applicable instructions, rules and regulations of the Commission
thereunder; the Registration Statement has become, and is, at the Closing Date,
effective under the Securities Act, and to the best of our knowledge, no
proceedings for a stop order with respect to the Registration Statement are
pending or threatened under Section 8 of the Securities Act.
6. The Subordinated Indenture (including the Subordinated Debenture
Guarantee), the Preferred Trust Securities Guarantee Agreement and the Trust
Agreement are duly qualified under the Trust Indenture Act of 1939, as amended.
7. The statements made in the Prospectus under the headings, "Description
of Preferred Trust Securities," "Description of the Preferred Trust Securities
Guarantee," and "Description of the Junior Subordinated Debentures [/1/and the
Subordinated Guarantee]," insofar as they purport to constitute summaries of the
terms of the documents referred to therein, constitute accurate summaries of the
terms of such documents in all material respects.
8. The Subordinated Indenture (including the Subordinated Debenture
Guarantee), the Preferred Trust Securities Guarantee Agreement and the Trust
Agreement are duly qualified under the Trust Indenture Act of 1939, as amended.
In passing on the form of the Registration Statement and the form of the
Prospectus, we necessarily assume the correctness and completeness of the
statements made or included therein by FPL Group, FPL Group Capital [/2/Inc
("FPL Group Capital")], the Trust, FPL Group Capital Trust __, FPL Group
[Capital] Trust __ and FPL Group Trust __ and take no responsibility therefor,
except insofar as such statements relate to us and as set forth in Paragraph 6
above. Other than with respect to the opinion expressed in Paragraph 6 hereof,
we have not ourselves checked the accuracy or completeness of, or otherwise
V-2
verified, the information furnished with respect to the matters in the
Registration Statement or the Prospectus. We have generally reviewed and
discussed such information with certain officers and employees of FPL Group
[/1/and FPL Group Capital] certain of [its] [their] legal counsel, [its] [their]
independent public accountants and your representatives. On the basis of such
review and discussion, but without independent check or verification except as
stated, nothing has come to our attention that would lead us to believe (except
as to the financial statements and other financial or statistical data contained
or incorporated by reference therein, as to which we express no belief, and
except for those parts of the Registration Statement that constitute the
Statements of Eligibility on Form T-1, as to which we express no belief), that
any part of the Registration Statement, when such part became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
contained therein not misleading or (except as aforesaid) that the Prospectus at
the 424 Date included, or at the date hereof includes, an untrue statement of a
material fact or the Prospectus at the 424 Date omitted, or at the date hereof
omits, to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
This opinion is limited to the laws of the State of New York, the federal
laws of the United States of America and, to the extent set forth herein, the
law of the State of Florida. We have reviewed the opinion of even date herewith
addressed to you of Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for FPL Group [/1/and FPL
Group Capital], required by Section __ of the Agreement, and we believe such
opinion to be satisfactory. As to all ▇▇▇▇▇▇ of Florida law, we have, with your
consent, relied upon such opinion as to the matters covered in such opinion of
Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP. We have also reviewed the opinions of even date
herewith addressed to you by ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, counsel to FPL Group and
[/1/,FPL Group Capital], and [Morris, James, Hitchens & ▇▇▇▇▇▇▇▇ LLP], special
Delaware counsel to FPL Group, [/1/FPL Group Capital] and the Trust, each
required by Section __ of the Agreement, and we believe such opinions to be
satisfactory. We have, with your consent, relied upon the opinion of [Morris,
James, Hitchens & ▇▇▇▇▇▇▇▇ LLP] as to the matters covered in such opinion
relating to the laws of the State of Delaware, including the assumptions,
qualifications, limitations and exceptions therein. We have assumed that the
Junior Subordinated Debentures and Preferred Trust Securities will conform to
specimens examined by us. In such examination, we have assumed the genuineness
of all signatures, the legal capacity of natural persons, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents.
This opinion is given to you solely for your use as the Underwriters in
connection with the Agreement and the transactions contemplated thereunder and
may not be relied upon by any other person or for any other purpose without our
express written consent. This opinion is expressed as of the date hereof, and we
do not assume any obligation to update or supplement it to reflect any fact or
circumstance that hereafter comes to our attention, or any change in law that
hereafter occurs.
Very truly yours,
HUNTON & ▇▇▇▇▇▇▇▇
V-3
SCHEDULE VI
[LETTERHEAD OF MORRIS, JAMES, HITCHENS & ▇▇▇▇▇▇▇▇ LLP]
as Representatives of the Underwriters
named in Schedule II to the Agreement,
as herein described
Re: FPL Group [/1/Capital] Trust __
-------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for FPL Group, Inc., a Florida
corporation ("FPL Group")[, /1/FPL Group Capital Inc, a Florida corporation
("FPL Group Capital"),] and FPL Group [/1/Capital] Trust __, a Delaware
statutory trust (the "Trust"), in connection with the matters set forth herein.
This opinion letter is being furnished to you pursuant to Section 9(c) of the
Underwriting Agreement (as defined below) relating to the Preferred Trust
Securities issued today by the Trust representing preferred undivided beneficial
interests in the assets of the Trust (each a "Preferred Trust Security" and
collectively, the "Preferred Trust Securities").
For purposes of giving the opinions hereinafter set forth, our examination
of documents has been limited to the examination of originals or copies
furnished to us of the following:
(a) The Trust Agreement of the Trust, dated as of ___________, by and among
FPL Group, as depositor (the "Depositor"), and the trustees of the Trust named
therein;
(b) The Certificate of Trust of the Trust, as filed in the office of the
Secretary of State of the State of Delaware (the "Secretary of State") on
___________ (the "Certificate");
(c) The Amended and Restated Trust Agreement of the Trust, dated
___________ (including Exhibits B and C attached thereto) (the "Trust
Agreement"), among the Depositor, the trustees of the Trust named therein (the
"Trustees"), and the several Holders (as defined therein);
(d) [Registration Statement Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇
and ▇▇▇-▇▇▇▇▇▇-▇▇ and] Registration Statement Nos. 333-______, 333-______-01,
333-_______-02, 333-_______-03, 333-_______-04 and 333-______-05
([collectively,] the "Registration Statement") [/1/ each] on Form S-3, including
a prospectus (the "Preliminary Prospectus"), relating, among other things, to
the Preferred Trust Securities, as filed by FPL Group, FPL Group Capital [/2/Inc
("FPL Group Capital")], the Trust, FPL Group Capital Trust __, FPL Group
[Capital] Trust __ and FPL Group Trust __ with the Securities and Exchange
Commission on or about ___________;
(e) The Prospectus Supplement, dated ___________ (together with the
Preliminary Prospectus, the "Prospectus"), relating to the Preferred Trust
Securities;
VI-1
(f) The Underwriting Agreement, dated ___________ (the "Underwriting
Agreement"), among the Trust, FPL Group [/1/, FPL Group Capital,] and
___________ acting on its own behalf and on behalf of the other several
underwriters referred to therein; and
(g) A Certificate of Good Standing for the Trust, dated a recent date,
obtained from the Secretary of State.
The Common Trust Securities (as defined below) and the Preferred Trust
Securities are hereinafter referred to collectively as the "Trust Securities."
Unless otherwise defined herein, all capitalized terms used in this opinion
letter shall have the meanings provided in the Trust Agreement, except that
reference herein to any document shall mean such document as in effect on the
date hereof.
For the purposes of this opinion letter, we have not reviewed any documents
other than the documents listed in paragraphs (a) through (g) above. In
particular, we have not reviewed any document (other than the documents listed
in paragraphs (a) through (g) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed that there exists
no provision in any document that we have not reviewed that is inconsistent with
the opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, (iii) the genuineness of all signatures, and (iv) such documents
submitted to us in final or execution form have not been and will not be altered
or amended in any respect material to our opinions as expressed in this letter
and conform in all material respects to the final, executed originals of such
documents.
For purposes of this opinion letter, we have assumed (i) that the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation, and termination of the Trust, and that the Trust Agreement and the
Certificate are in full force and effect and have not been amended or
terminated, (ii) except to the extent provided in paragraph 1 below, the due
creation, due formation or due organization, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, formation or organization,
(iii) the legal capacity of each natural person who is a party or signatory to
the documents examined by us, (iv) except to the extent provided in paragraph 3
below, that each of the parties to the documents examined by us has the power
and authority to execute and deliver, and to perform its obligations under, such
documents, (v) except to the extent provided in paragraphs 4 and 7 below, that
each of the parties to the documents examined by us has duly authorized,
executed and delivered such documents, (vi) the receipt by each Person to whom a
Preferred Trust Security is to be issued on the date hereof by the Trust (the
"Preferred Trust Security Holders") of a certificate for the Preferred Trust
Security in the form of Exhibit C to the Trust Agreement evidencing ownership of
such Preferred Trust Security in the name of such Person and the payment for the
Preferred Trust Security acquired by it, all in accordance with the Trust
Agreement and as described in the Prospectus, (vii) that the Preferred Trust
VI-2
Securities are issued and sold to the Preferred Trust Security Holders in
accordance with the Trust Agreement and as described in the Prospectus, (viii)
the receipt by the Person to whom a Common Trust Security, representing common
undivided beneficial interests in the assets of the Trust (each, a "Common Trust
Security" and collectively, the "Common Trust Securities"), is to be issued on
the date hereof by the Trust (the "Common Trust Security Holder") of a
certificate for the Common Trust Security in the form of Exhibit B to the Trust
Agreement evidencing ownership of such Common Trust Security in the name of such
Person and the payment for the Common Trust Security acquired by it, all in
accordance with the Trust Agreement and as described in the Prospectus, (ix)
that the Common Trust Securities are issued and sold to the Common Trust
Security Holder in accordance with the Trust Agreement and as described in the
Prospectus, (x) that the Trust derives no income from or connected with sources
within the State of Delaware and has no assets, activities (other than having a
Delaware trustee as required by the Delaware Statutory Trust Act, 12 Del. C. ss.
3801, et seq. (the "Act") and filing documents with the Secretary of State) or
employees in the State of Delaware, and (xi) that the Trust is treated as a
grantor trust for federal income tax purposes. We have not participated in the
preparation of any offering materials relating to the Trust or the Trust
Securities and we assume no responsibility for the contents of any such
materials.
Based upon the foregoing, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly formed and is validly existing in good
standing as a statutory trust under the Act.
2. The Trust Agreement constitutes a valid and binding obligation of the
Depositor and Trustees party thereto, enforceable against such Depositor and
Trustees in accordance with its terms.
3. Under the Trust Agreement and the Act, the Trust has the requisite
trust power and authority (i) to own its properties and conduct its business,
all as described in the Prospectus under the caption [/2/ "FPL Group Trust I]
[/1/"FPL Group Capital Trust II and FPL Group Capital Trust III"], (ii) to
execute and deliver, and perform its obligations under, the Underwriting
Agreement, and (iii) to issue, and perform its obligations under, the Trust
Securities.
4. The Preferred Trust Securities have been duly authorized for issuance
by the Trust and, when issued, executed and countersigned in accordance with the
Trust Agreement and delivered against payment therefor in accordance with the
Trust Agreement, will be validly issued and, subject to the qualifications set
forth in paragraph 5 below, fully paid and nonassessable undivided beneficial
interests in the assets of the Trust.
5. Each Preferred Trust Security Holder, in such capacity, will be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware. We note, however, that the Preferred Trust Security
Holders may be required to make payment or provide indemnity or security as set
forth in the Trust Agreement.
6. Under the Trust Agreement and the Act, the issuance of the Preferred
Trust Securities is not subject to preemptive rights.
VI-3
7. Under the Trust Agreement and the Act, the execution and delivery by
the Trust of the Underwriting Agreement, and the performance by the Trust of its
obligations thereunder, have been duly authorized by the requisite trust action
on the part of the Trust.
8. The issuance and sale by the Trust of the Trust Securities, the
execution, delivery and performance by the Trust of the Underwriting Agreement,
the consummation by the Trust of the transactions contemplated by the
Underwriting Agreement, and the compliance by the Trust with its obligations
thereunder are not prohibited by (i) the Trust Agreement or the Certificate, or
(ii) any law or administrative regulation of the State of Delaware applicable to
the Trust.
9. No authorization, approval, consent or order of any Delaware court or
Delaware governmental authority or Delaware agency is required to be obtained by
the Trust solely in connection with the issuance and sale by the Trust of the
Preferred Trust Securities.
10. The Preferred Trust Security Holders (other than those Preferred Trust
Security Holders who reside or are domiciled in the State of Delaware) will have
no liability for income taxes imposed by the State of Delaware solely as a
result of their participation in the Trust, and the Trust will not be liable for
any income tax imposed by the State of Delaware.
The opinions in this letter are limited to the laws of the State of
Delaware (other than the securities laws of the State of Delaware) and we have
not considered and express no opinion on the effect of or concerning matters
involving the laws of any other jurisdiction, or rules, regulations, orders and
decisions relating to such laws, including, without limitation, (i) the federal
laws of the United States of America, including, without limitation, the
Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as
amended, the Trust Indenture Act of 1939, as amended, the Investment Company Act
of 1940, as amended, and the Employee Retirement Income Security Act of 1974, as
amended, and (ii) state securities or blue sky laws.
The opinion expressed in paragraph 2 above is subject, as to enforcement,
to the effect upon the Trust Agreement of (A) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation, fraudulent conveyance or
transfer and other similar laws relating to or affecting the rights and remedies
of creditors generally, (B) principles of equity, including applicable law
relating to fiduciary duties (regardless of whether considered and applied in a
proceeding in equity or at law), and (C) the effect of applicable public policy
on the enforceability of provisions relating to indemnification or contribution.
We consent to your relying as to matters of Delaware law upon this opinion
letter in connection with the Underwriting Agreement. We also consent to Steel
▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, and Hunton & ▇▇▇▇▇▇▇▇ LLP relying
as to matters of Delaware law upon this opinion letter in connection with
opinions to be rendered by such counsel on the date hereof pursuant to the
Underwriting Agreement. Further, we consent to The Bank of New York (in its
capacity as trustee under the Subordinated Indenture, as trustee under the Trust
Securities Guarantee, and as Property Trustee under the Trust Agreement) and The
Bank of New York (Delaware) (in its capacity as Delaware Trustee under the Trust
Agreement) relying as to matters of Delaware law upon this opinion letter in
connection with the matters set forth in this opinion letter. Except as stated
above, without our prior written consent, this opinion letter may not be
furnished or quoted to, or relied upon by, any other Person or relied upon for
any other purpose.
Very truly yours,
VI-4