Exhibit 1
FPL GROUP CAPITAL INC
DEBENTURES
ABSOLUTELY AND UNCONDITIONALLY GUARANTEED BY
FPL GROUP, INC.
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UNDERWRITING AGREEMENT
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________, 1999
To the Representatives named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
1. Introductory. FPL Group Capital Inc, a Florida corporation ("FPL Group
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Capital") and a wholly owned subsidiary of FPL Group, Inc., a Florida
corporation ("FPL Group" or the "Guarantor"), proposes to issue and sell its
debt securities of the series designation[s], with the terms and in the
principal amount[s] specified in Schedule I hereto (the "Debentures"). The
Debentures will be absolutely and unconditionally guaranteed by FPL Group
pursuant to and in accordance with the terms of the Guarantee (as hereinafter
defined). Each of FPL Group Capital and the Guarantor hereby confirms its
agreement with the several Underwriters (as defined below) as set forth herein.
The term "Underwriters" as used herein shall be deemed to mean the firm or
corporation or the several firms or corporations named in Schedule II hereto and
any underwriter substituted as provided in Section 7 hereof and the term
"Underwriter" shall be deemed to mean one of such Underwriters. If the firm or
firms listed in Schedule I hereto (the "Representatives") are the same as the
firm or firms listed in Schedule II hereto, then the terms "Underwriters" and
"Representatives", as used herein, shall each be deemed to refer to such firm or
firms. The Representatives represent that they have been authorized by each
Underwriter to enter into this agreement on behalf of such Underwriter and to
act for it in the manner herein provided. All obligations of the Underwriters
hereunder are several and not joint. If more than one firm is named in Schedule
I hereto, any action under or in respect of this agreement may be taken by such
firms jointly as the Representatives or by one of the firms acting on behalf of
the Representatives and such action will be binding upon all the Underwriters.
2. Description of Debentures and Guarantee. The Debentures [of each
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series] will be a series of debentures issued by FPL Group Capital under an
Indenture, dated as of June 1, 1999, to The Bank of New York, as Trustee, in
substantially the form heretofore delivered to the Representatives (together
with any amendments or supplements thereto, the "Indenture"). The Debentures
will be absolutely and unconditionally guaranteed by FPL Group pursuant to, and
in accordance with, the terms of a Guarantee Agreement, dated June 1, 1999,
between FPL Group, as Guarantor, and The Bank of New York, as Guarantee Trustee,
in substantially the form heretofore delivered to the Representatives (the
"Guarantee").
3. Representations and Warranties of FPL Group Capital. FPL Group Capital
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represents and warrants to the several Underwriters that:
(a) FPL Group Capital and FPL Group have filed with the Securities
and Exchange Commission (the "Commission") a registration statement on
Form S-3, including a prospectus ("Registration Statement Nos. 333-64685
and 333-64685-01"), for the registration of $300,000,000 aggregate
principal amount of FPL Group Capital debt securities and $625,000,000
aggregate amount of FPL Group Guarantee under the Securities Act of 1933,
as amended (the "Securities Act"), which registration statement has been
declared effective by the Commission. All but $225,000,000 aggregate
principal amount of FPL Group Capital debt securities and $225,000,000
aggregate amount of FPL Group Guarantee registered with the Commission
under the Securities Act pursuant to Registration Statement Nos. 333-64685
and 333-64685-01 have been previously issued. In addition, FPL Group
Capital and FPL Group filed with the Commission a registration statement
on Form S-3, including a prospectus ("Registration Statement Nos.
333-______ and 333-______-01"), for the registration of an additional
$275,000,000 aggregate principal amount of FPL Group Capital debt
securities and $275,000,000 aggregate amount of FPL Group Guarantee
(together with the debt securities registered with the Commission under
the Securities Act pursuant to Registration Statement Nos. 333-64685 and
333-64685-01 which remain unissued, the "Debt Securities") under the
Securities Act, which registration statement has been declared effective
by the Commission. References herein to the term "Registration Statement"
as of any given date shall mean Registration Statement Nos. 333-______ and
333-______-01 and Registration Statement Nos. 333-64685 and 333-64685-01,
as amended or supplemented to such date, including, as of such date, all
documents incorporated by reference therein pursuant to Item 12 of Form
S-3 ("Incorporated Documents"). References herein to the term "Prospectus"
as of any given date shall mean the combined prospectus forming a part of
Registration Statement Nos. 333-______ and 333-______-01, as supplemented
by a prospectus supplement relating to the Debentures proposed to be filed
pursuant to Rule 424 of the general rules and regulations of the
Securities Act ("Rule 424"), and as further amended or supplemented as of
such date (other than amendments or supplements relating to (i) Debt
Securities other than the Debentures or, (ii) when referring to the
Prospectus relating to a particular offering of the Debentures, Debentures
other than the Debentures being offered on such date), including all
Incorporated Documents. References herein to the term "Effective Date"
shall be deemed to refer to the later of the time and date that
Registration Statement Nos. 333-______ and 333-______-01 was declared
effective and the time and date of the filing thereafter of FPL Group's
most recent Annual Report on Form 10-K, if such filing is made prior to
the Closing Date (as hereinafter defined). Prior to the termination of the
offering of the Debentures and Guarantee, FPL Group Capital will not file
any amendment to the Registration Statement or any amendment or supplement
to the Prospectus without prior notice to the Representatives, and to
Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, who are acting as Counsel for the
several Underwriters ("Counsel for the Underwriters"), or any such
amendment or supplement to which the Representatives shall reasonably
object in writing, or which shall be unsatisfactory to Counsel for the
Underwriters.
(b) The Registration Statement at the Effective Date, fully
complied, and the Prospectus, both on the date it is filed with the
Commission pursuant to Rule 424 (such date, the "424 Date") and at the
Closing Date, and the Registration Statement and the Indenture at the
Closing Date, will fully comply, in all material respects with the
applicable provisions of the Securities Act and the Trust Indenture Act of
1939, as amended (the "1939 Act"), respectively, and, in each case, the
applicable instructions, rules and regulations of the Commission
thereunder; the Registration Statement, at the Effective Date, did not,
and at the Closing Date, the Registration Statement will not, contain an
untrue statement of a material fact, or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; the Prospectus, on the 424 Date and at the Closing Date,
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained therein,
in the light of the circumstances under which they were made, not
misleading; provided, that the foregoing representations and warranties in
this subsection (b) shall not apply to statements or omissions made in
reliance upon and in conformity with information furnished in writing to
FPL Group Capital or FPL Group by or on behalf of any Underwriter through
the Representatives for use in connection with the preparation of the
Registration Statement or the Prospectus, or to any statements in or
omissions from the Statements of Eligibility on Form T-1, or amendments
thereto, of the respective Trustees under the Indenture and the Guarantee
or to any statements or omissions made in the Prospectus relating to the
DTC Book-Entry-Only System that are based solely on information contained
in published reports of DTC.
(c) The consummation of the transactions herein contemplated and the
fulfillment of the terms hereof on the part of FPL Group Capital to be
fulfilled have been duly authorized by all necessary corporate action of
FPL Group Capital in accordance with the provisions of its Articles of
Incorporation (the "FPL Group Capital Charter"), by-laws and applicable
law, and the Debentures when issued and delivered as provided herein will
constitute valid and binding obligations of FPL Group Capital enforceable
in accordance with their terms, except as limited or affected by
bankruptcy, insolvency, reorganization, receivership, moratorium or other
laws affecting creditors' rights and remedies generally and general
principles of equity.
(d) The consummation of the transactions herein contemplated and the
fulfillment of the terms hereof and the compliance by FPL Group Capital
with all the terms and provisions of the Indenture will not result in a
breach of any of the terms or provisions of, or constitute a default
under, the FPL Group Capital Charter or by-laws, or any indenture,
mortgage, deed of trust or other agreement or instrument to which FPL
Group Capital is now a party, or violate any law or any order, rule,
decree or regulation applicable to FPL Group Capital of any Federal or
state court, regulatory board or body or administrative agency having
jurisdiction over FPL Group Capital or any of its property, except where
such breach, default or violation would not have a material adverse effect
on the business, properties or financial condition of FPL Group Capital
and its subsidiaries taken as a whole.
(e) FPL Group Capital and its direct significant subsidiaries (as
defined in Regulation S-X (17 CFR Part 210)) have good and marketable
title to all of the capital stock of their respective direct significant
subsidiaries (as defined in Regulation S-X) free and clear of all liens
and encumbrances, except such as do not materially affect the value
thereof.
(f) Each of FPL Group Capital's direct and indirect significant
subsidiaries (as defined in Regulation S-X) has been duly incorporated, is
validly existing and is in good standing under the laws of its respective
jurisdiction of incorporation, and is duly qualified to do business and is
in good standing as a foreign corporation in each jurisdiction in which
its respective ownership of properties or the conduct of its respective
businesses requires such qualification, except where the failure so to
qualify would not have a material adverse effect on the business,
properties or financial condition of FPL Group Capital and its
subsidiaries taken as a whole, and has the corporate power and authority
necessary to own or hold its respective properties and to conduct the
businesses in which it is engaged.
4. Representations and Warranties of FPL Group. FPL Group represents and
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warrants to the several Underwriters that:
(a) FPL Group has filed with the Commission the Registration
Statement for the registration of the Guarantee with respect to the Debt
Securities under the Securities Act, which registration statement has been
declared effective by the Commission. Prior to the termination of the
offering of the Debentures and Guarantee, FPL Group will not file any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus without prior notice to the Representatives, and to Counsel
for the Underwriters, or any such amendment or supplement to which the
Representatives shall reasonably object in writing, or which shall be
unsatisfactory to Counsel for the Underwriters.
(b) The Registration Statement at the Effective Date fully complied,
and the Prospectus, both on the 424 Date and at the Closing Date, and the
Registration Statement and the Guarantee at the Closing Date, will fully
comply, in all material respects with the applicable provisions of the
Securities Act and the 1939 Act, respectively and, in each case, the
applicable instructions, rules and regulations of the Commission
thereunder; at the Effective Date, the Registration Statement did not, and
at the Closing Date, the Registration Statement will not, contain an
untrue statement of a material fact, or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; the Prospectus, on the 424 Date and at the Closing Date,
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained therein,
in the light of the circumstances under which they were made, not
misleading; and the Incorporated Documents, when filed with the
Commission, fully complied or will fully comply in all material respects
with the applicable provisions of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the applicable instructions, rules and
regulations of the Commission thereunder; provided, that the foregoing
representations and warranties in this subsection (b) shall not apply to
statements or omissions made in reliance upon and in conformity with
information furnished in writing to FPL Group Capital or FPL Group by or
on behalf of any Underwriter through the Representatives for use in
connection with the preparation of the Registration Statement or the
Prospectus, or to any statements in or omissions from the Statements of
Eligibility on Form T-1, or amendments thereto, of the respective Trustees
under the Indenture and the Guarantee, or to any statements or omissions
made in the Prospectus relating to the DTC Book-Entry-Only System that are
based solely on published reports of DTC.
(c) The financial statements included as part of or incorporated by
reference in the Registration Statement present fairly the consolidated
financial condition and results of operations of FPL Group and its
subsidiaries taken as a whole, at the respective dates and for the
respective periods to which they apply; such financial statements have
been prepared in each case in accordance with generally accepted
accounting principles consistently applied throughout the periods involved
except as otherwise indicated in the Registration Statement; and Deloitte
& Touche LLP, who have audited the audited financial statements of FPL
Group, are independent public accountants as required by the Securities
Act and the Exchange Act and the rules and regulations of the Commission
thereunder.
(d) Except as reflected in or contemplated by the Registration
Statement and the Prospectus, since the respective most recent dates as of
which information is given in the Registration Statement and Prospectus,
there has not been any material adverse change in the business, properties
or financial condition of FPL Group and its subsidiaries taken as a whole,
nor has any transaction been entered into by FPL Group or any of its
subsidiaries that is material to FPL Group and its subsidiaries taken as a
whole, other than changes and transactions contemplated by the
Registration Statement and Prospectus, and transactions in the ordinary
course of business. FPL Group and its subsidiaries have no contingent
obligation material to FPL Group and its subsidiaries taken as a whole,
which is not disclosed in the Registration Statement and Prospectus.
(e) The consummation of the transactions herein contemplated and the
fulfillment of the terms hereof on the part of FPL Group to be fulfilled
have been duly authorized by all necessary corporate action of FPL Group
in accordance with the provisions of its Articles of Incorporation (the
"FPL Group Charter"), by-laws and applicable law, and the Guarantee when
issued and delivered as provided herein will constitute a valid and
binding obligation of FPL Group enforceable in accordance with its terms,
except as limited or affected by bankruptcy, insolvency, reorganization,
receivership, moratorium or other laws affecting creditors' rights and
remedies generally and general principles of equity.
(f) The consummation of the transactions herein contemplated and the
fulfillment of the terms hereof and the compliance by FPL Group with all
the terms and provisions of the Guarantee will not result in a breach of
any of the terms or provisions of, or constitute a default under, the FPL
Group Charter or by-laws, or any indenture, mortgage, deed of trust or
other agreement or instrument to which FPL Group or any of its
subsidiaries is now a party, or violate any law or any order, rule, decree
or regulation applicable to FPL Group or any of its subsidiaries of any
Federal or state court, regulatory board or body or administrative agency
having jurisdiction over FPL Group or its subsidiaries or any of their
respective property, except where such breach, default or violation would
not have a material adverse effect on the business, properties or
financial condition of FPL Group and its subsidiaries taken as a whole.
(g) FPL Group has good and marketable title to all of the common
stock of its direct and indirect significant subsidiaries (as defined in
Regulation S-X) free and clear of all liens and encumbrances, except such
as do not materially affect the value thereof.
(h) The Guarantee has been duly authorized, executed and delivered
by FPL Group and constitutes a valid and binding agreement of FPL Group
enforceable in accordance with its terms, except as limited or affected by
bankruptcy, insolvency, reorganization, receivership, moratorium or other
laws affecting creditors' rights and remedies generally and general
principles of equity. Neither the execution and delivery of the Guarantee
nor the performance by FPL Group of any of its obligations thereunder
requires any consent, approval, authorization, registration or
qualification of or by any governmental agency or body.
(i) Each of FPL Group's direct and indirect significant subsidiaries
(as defined in Regulation S-X) has been duly incorporated, is validly
existing and is in good standing under the laws of its respective
jurisdiction of incorporation, and is duly qualified to do business and is
in good standing as a foreign corporation in each jurisdiction in which
its respective ownership of properties or the conduct of its respective
businesses requires such qualification, except where the failure so to
qualify would not have a material adverse effect on the business,
properties or financial condition of FPL Group and its subsidiaries taken
as a whole, and has the corporate power and authority necessary to own or
hold its respective properties and to conduct the businesses in which it
is engaged.
5. Purchase and Sale. On the basis of the representations and warranties
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herein contained, and subject to the terms and conditions in this agreement set
forth, FPL Group Capital agrees to sell to the respective Underwriters named in
Schedule II hereto, severally and not jointly, and the respective Underwriters
agree, severally and not jointly, to purchase from FPL Group Capital, the
respective principal amounts of Debentures set forth opposite their respective
names in Schedule II hereto at the purchase price[s] for those Debentures set
forth in Schedule I hereto.
6. Public Offering. The Underwriters propose to make a bona fide public
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offering of the Debentures and Guarantee as set forth in the Prospectus, such
public offering to be made as soon after the execution of this agreement as
practicable, subject, however, to the terms and conditions of this agreement.
7. Time and Place of Closing, Default of Underwriter. Delivery of the
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Debentures [of each series] and payment therefor by certified or official bank
check or checks, payable to the order of FPL Group Capital in New York Clearing
House or similar next day funds, or by wire transfer in Federal funds, shall be
made at the time, date and place set forth in Schedule I, or at such other time,
date or place as shall be agreed upon in writing by FPL Group Capital and the
Representatives. The hour and date of such delivery and payment are herein
called the "Closing Date".
The Debentures shall be delivered to the Representatives for the respective
accounts of the Underwriters against payment by the several Underwriters through
the Representatives of the purchase price therefor. Delivery of the Debentures
shall be made through the facilities of The Depository Trust Company unless the
Representatives and FPL Group Capital shall otherwise agree. For the purpose of
expediting the checking of the Debentures by the Representatives on behalf of
the Underwriters, FPL Group Capital agrees to make such Debentures available to
the Representatives for such purpose at the office of ▇▇▇▇▇▇ ▇▇▇▇ & 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 and place as may be agreed upon by FPL Group Capital and the
Representatives.
If any Underwriter shall fail to purchase and pay for the principal amount
of the Debentures which such Underwriter has agreed to purchase and pay for
hereunder (otherwise than by reason of any failure on the part of FPL Group
Capital or FPL Group to comply with any of the provisions contained herein), the
non-defaulting Underwriters shall be obligated to take up and pay for (in
addition to the respective principal amount of the Debentures [of each series]
set forth opposite their respective names in Schedule II hereto) the principal
amount of the Debentures [of each series] which such defaulting Underwriter or
Underwriters failed to take up and pay for, up to a principal amount thereof
equal to, in the case of each such remaining Underwriter, ten percent (10%) of
the aggregate principal amount of the Debentures [of each series] set forth
opposite the name of such remaining Underwriter in said Schedule II, and such
remaining Underwriters shall have the right, within 24 hours of receipt of such
notice, either to take up and pay for (in such proportion as may be agreed upon
among them), or to substitute another Underwriter or Underwriters, satisfactory
to FPL Group Capital, to take up and pay for, the remaining principal amount of
the Debentures [of each series] which the defaulting Underwriter or Underwriters
agreed but failed to purchase. If any unpurchased Debentures still remain, then
FPL Group Capital shall be entitled to a further period of 24 hours within which
to procure another party or other parties, members of the National Association
of Securities Dealers, Inc. (or, if not members of such Association, who are not
eligible for membership in said Association and who agree (i) to make no sales
within the United States, its territories or its possessions or to persons who
are citizens thereof or residents therein and (ii) in making sales to comply
with said Association's Conduct Rules) and satisfactory to the Representatives
to purchase such Debentures on the terms herein set forth. In the event that,
within the respective prescribed periods, the non-defaulting Underwriters notify
FPL Group Capital that they have arranged for the purchase of such Debentures,
or FPL Group Capital notifies the non-defaulting Underwriters that it has
arranged for the purchase of such Debentures, the non-defaulting Underwriters or
FPL Group Capital shall have the right to postpone the Closing Date for a period
of not more than three full business days beyond the expiration of the
respective prescribed periods in order to effect whatever changes may thus be
made necessary in the Registration Statement or the Prospectus or in any other
documents or arrangements. In the event that neither the non-defaulting
Underwriters nor FPL Group Capital has arranged for the purchase of such
Debentures by another party or parties as above provided, then this agreement
shall terminate without any liability on the part of FPL Group Capital, FPL
Group or any Underwriter (other than an Underwriter which shall have failed or
refused, otherwise than for some reason sufficient to justify, in accordance
with the terms hereof, the cancellation or termination of its obligations
hereunder, to purchase and pay for the Debentures which such Underwriter has
agreed to purchase as provided in Section 5 hereof), except as otherwise
provided in subsections (c) and (e) of Section 8 hereof.
8. Covenants of FPL Group Capital and FPL Group. FPL Group Capital and FPL
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Group agree with the several Underwriters that:
(a) FPL Group Capital and FPL Group will promptly file the
Prospectus with the Commission pursuant to Rule 424 under the Securities
Act.
(b) FPL Group Capital will deliver to the Representatives and to
Counsel for the Underwriters one signed copy of the Registration Statement
or, if a signed copy is not available, one conformed copy of the
Registration Statement certified by an officer of FPL Group Capital to be
in the form as originally filed, including all Incorporated Documents and
exhibits, except those incorporated by reference, which relate to the
Debentures, including a signed or conformed copy of each consent and
certificate included therein or filed as an exhibit thereto. FPL Group
Capital will deliver to the Underwriters through the Representatives as
soon as practicable after the date of this agreement as many copies of the
Prospectus as the Representatives may reasonably request for the purposes
contemplated by the Securities Act. FPL Group Capital and FPL Group will
promptly advise the Representatives of the issuance of any stop order
under the Securities Act with respect to the Registration Statement or the
institution of any proceedings therefor of which it shall have received
notice prior to the termination of the offering of the Debentures
hereunder. FPL Group Capital and FPL Group will each use its best efforts
to prevent the issuance of any such stop order and to secure the prompt
removal thereof, if issued.
(c) FPL Group Capital will pay all expenses in connection with (i)
the preparation and filing of the Registration Statement and Prospectus,
(ii) the issuance and delivery of the Debentures and Guarantee as provided
in Section 7 hereof, and (iii) the printing and delivery to the
Representatives for the account of the Underwriters, in reasonable
quantities, of copies of the Registration Statement and the Prospectus and
the Indenture. FPL Group Capital will pay all taxes, if any (but not
including any transfer taxes), on the issuance of the Debentures and
Guarantee. FPL Group Capital shall not, however, be required to pay any
amount for any expenses of the Representatives or any of the Underwriters,
except as provided in Sections 9 and 10 hereof and except that if this
agreement shall be terminated in accordance with the provisions of
Sections 9, 10 or 12 hereof, FPL Group Capital will pay the fees and
disbursements of Counsel for the Underwriters, whose fees and
disbursements the Underwriters agree to pay in any other event. Neither
FPL Group Capital nor FPL Group shall in any event be liable to any of the
several Underwriters for damages on account of loss of anticipated
profits.
(d) During a period of nine months after the date of this agreement,
if any event relating to or affecting FPL Group Capital or FPL Group shall
occur which, in the opinion of FPL Group Capital or FPL Group, should be
set forth in a supplement to or an amendment of the Prospectus in order to
make the Prospectus not misleading in light of the circumstances when it
is delivered to a purchaser, FPL Group Capital and FPL Group will
forthwith at their expense prepare and furnish to the Representatives a
reasonable number of copies of a supplement or supplements or an amendment
or amendments to the Prospectus which will supplement or amend the
Prospectus so that as supplemented or amended it will not include any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading; provided that should such event relate solely to activities of
any of the Underwriters, then the Underwriters shall assume the expense of
preparing and furnishing copies of any such amendment or supplement. In
case any Underwriter is required to deliver a Prospectus after the
expiration of nine months after the date of this agreement, FPL Group
Capital upon the request of the Representatives will furnish to the
Representatives, at the expense of such Underwriter, a reasonable quantity
of a supplemented or amended Prospectus or supplements or amendments to
the Prospectus complying with Section 10 of the Securities Act.
(e) FPL Group Capital and FPL Group will furnish such proper
information as may be lawfully required and otherwise cooperate in
qualifying the Debentures and Guarantee for offer and sale under the blue
sky laws of such jurisdictions as the Representatives may designate and
will pay filing fees in the aggregate not exceeding $5,000, provided that
neither FPL Group Capital nor FPL Group shall be required to qualify as a
foreign corporation or dealer in securities, or to file any consents to
service of process under the laws of any jurisdiction, or to meet other
requirements deemed by FPL Group Capital or FPL Group to be unduly
burdensome.
(f) FPL Group will make generally available to its security holders
(including holders of the Debentures), as soon as practicable, an earnings
statement (which need not be audited, unless required so to be under
Section 11(a) of the Securities Act) of FPL Group in reasonable detail
covering the 12 months beginning not later than the first day of the
quarter next succeeding the month in which occurred the effective date of
the Registration Statement as defined in Rule 158 under the Securities
Act.
9. Conditions of Underwriters' Obligations. The several obligations of the
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Underwriters to purchase and pay for the Debentures shall be subject to the
accuracy of, and compliance with, the representations and warranties of FPL
Group Capital and FPL Group contained herein on the Closing Date, to the
performance by FPL Group Capital and FPL Group of their obligations to be
performed hereunder on or prior to the Closing Date and to the following
conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date; no order of the
Commission directed to the adequacy of any Incorporated Document shall
have been issued; no proceedings for either such purpose shall be pending
before, or threatened by, the Commission on such date; and the
Representatives shall have received, prior to payment for the Debentures,
a certificate dated the Closing Date and signed by an officer of FPL Group
Capital and FPL Group to the effect that, to the best of their knowledge,
no such order is in effect and no proceedings for either such purpose are
pending before, or to the knowledge of FPL Group Capital and FPL Group
threatened by, the Commission.
(b) At the Closing Date, the Representatives shall have received
from Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to FPL Group Capital and FPL Group,
a favorable opinion (with a copy thereof for each of the Underwriters),
which opinion will not pass upon compliance with provisions of the blue
sky laws of any jurisdiction, in form and substance satisfactory to
counsel for the Underwriters, to the effect that:
(i) FPL Group Capital and FPL Group are validly organized and
existing corporations in good standing under the laws of the State
of Florida, and have valid franchises, licenses and permits adequate
for the conduct of their respective businesses;
(ii) FPL Group Capital and FPL Group are corporations duly
authorized by their respective Articles of Incorporation to conduct
the businesses which they are now conducting as set forth in the
Prospectus;
(iii) the Indenture has been duly and validly authorized by
all necessary corporate action, has been duly and validly executed
and delivered, and is a valid and binding instrument enforceable in
accordance with its terms, except as limited or affected by
bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws affecting creditors' rights and remedies generally and
general principles of equity;
(iv) the Debentures [of each series] are valid and binding
obligations of FPL Group Capital enforceable in accordance with
their respective terms, except as limited or affected by bankruptcy,
insolvency, reorganization, receivership, moratorium or other laws
affecting creditors' rights and remedies generally and general
principles of equity;
(v) the Guarantee has been duly and validly authorized by all
necessary corporate action, has been duly and validly executed and
delivered and is a valid and binding obligation of FPL Group
enforceable in accordance with its terms, except as limited or
affected by bankruptcy, insolvency, reorganization, receivership,
moratorium or other laws affecting creditors rights and remedies
generally and general principles of equity;
(vi) to the best of the knowledge of said Counsel, FPL Group
Capital and its direct significant subsidiaries (as defined in
Regulation S-X) have good and marketable title to all of the capital
stock of their respective direct significant subsidiaries (as
defined in Regulation S-X) free and clear of all liens and
encumbrances, except such as do not materially affect the value
thereof, and FPL Group has good and marketable title to all of the
common stock of its direct and indirect significant subsidiaries (as
defined in Regulation S-X) free and clear of all liens and
encumbrances, except such as do not materially affect the value
thereof;
(vii) the Registration Statement, at the Effective Date, and
the Prospectus, at the 424 Date (except as to the financial
statements and other financial or statistical data contained or
incorporated by reference therein, upon which such opinion need not
pass and except for those parts of the Registration Statement that
constitute the Statements of Eligibility on Form T-1, upon which
such opinion need not pass), complied as to form in all material
respects with the applicable requirements of the Securities Act and
the applicable instructions, rules and regulations of the Commission
thereunder and the Incorporated Documents (except as to the
financial statements and other financial or statistical data
contained or incorporated by reference therein, upon which such
opinion need not pass), at the time they were filed with the
Commission, complied as to form in all material respects with the
applicable requirements of the Exchange Act and the applicable
instructions, rules and regulations of the Commission thereunder;
the Registration Statement has become, and is, at the Closing Date,
effective under the Securities Act, and to the best of the knowledge
of said Counsel, no proceedings for a stop order with respect to the
Registration Statement are pending or threatened under Section 8 of
the Securities Act;
(viii) the consummation of the transactions herein
contemplated and the fulfillment of the terms hereof and the
compliance by FPL Group Capital with all the terms and provisions of
the Indenture, and by FPL Group with all the terms and provisions of
the Guarantee, will not result in a breach of any of the terms or
provisions of, or constitute a default under, the FPL Group Capital
Charter or by-laws or the FPL Group Charter or by-laws, or any
indenture, mortgage, deed of trust or other agreement or instrument
the terms of which are known to such Counsel to which FPL Group
Capital or FPL Group or any of their respective subsidiaries, as the
case may be, is now a party, except where such breach or default
would not have a material adverse effect on the business, properties
or financial condition of FPL Group Capital or FPL Group, each
together with its respective subsidiaries taken as a whole, as the
case may be;
(ix) nothing has come to the attention of said Counsel that
would lead them to believe that the Registration Statement (except
as to the financial statements and other financial or statistical
data contained or incorporated by reference therein, upon which such
opinion need not pass and except for those parts of the Registration
Statement that constitute the Statements of Eligibility on Form T-1,
upon which such opinion need not pass), at the Effective Date,
contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus,
at the 424 Date and at the Closing Date (except as aforesaid),
included or includes, any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading, provided that such Counsel may
state that their belief is based upon their participation in the
preparation of the Registration Statement and the Prospectus and any
supplements and amendments thereto and review and discussion of the
contents thereof, but is without independent check or verification
except as specified;
(x) to the best of the knowledge of said Counsel, no approval,
authorization, consent or order of any public board or body (other
than in connection or in compliance with the provisions of the blue
sky laws of any jurisdiction) is legally required for the
authorization of the issuance and sale of the Debentures [of any
series] and Guarantee;
(xi) the statements made in the Prospectus under the headings
"Description of Offered Debt Securities", "Certain Terms of the
Debentures" and "Description of the Guarantee", insofar as they
purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects;
(xii) the Indenture and the Guarantee are duly qualified under
the 1939 Act;
(xiii) this agreement has been duly and validly authorized,
executed and delivered by FPL Group Capital and FPL Group; and
(xiv) except as stated or referred to in the Prospectus, there
are no material pending legal proceedings to which FPL Group Capital
or any of its subsidiaries or FPL Group or any of its subsidiaries
is a party or of which property of FPL Group Capital or any of its
subsidiaries or FPL Group or any of its subsidiaries is the subject
which if determined adversely would have a material effect on FPL
Group Capital and its subsidiaries taken as a whole or FPL Group and
its subsidiaries taken as a whole, as the case may be, and, to the
best of the knowledge of said Counsel, no such proceeding is known
to be contemplated by governmental authorities.
In said opinion such Counsel may rely as to all matters of New York
law on an opinion of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP.
(c) At the Closing Date, the Representatives shall have received
from ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, counsel to FPL Group Capital and FPL Group,
a favorable opinion (with a copy thereof for each of the Underwriters),
which opinion will not pass upon compliance with provisions of the blue
sky laws of any jurisdiction, in form and substance satisfactory to
Counsel for the Underwriters, to the same effect with respect to matters
enumerated in paragraphs (iii) to (xiii) of subsection (b) of this Section
9. In said opinion, such counsel may rely as to all matters of Florida law
on an opinion of Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, and will not pass upon the
incorporation of FPL Group or FPL Group Capital or franchises.
(d) At the Closing Date, the Representatives shall have received
from Counsel for the Underwriters a favorable opinion (with a copy thereof
for each of the Underwriters) to the same effect with respect to the
matters enumerated in (iii)-(v), (vii) and (ix)-(xiii) of subsection (b)
of this Section 9. In said opinion, such Counsel may rely as to all
matters of Florida law on the opinion of Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, and
will not pass upon the incorporation of FPL Group or FPL Group Capital or
franchises.
(e) At the Closing Date, the Representatives shall have received
from Deloitte & Touche LLP a letter (with copies thereof for each of the
Underwriters) to the effect that (i) they are independent public
accountants with respect to FPL Group within the meaning of the Securities
Act and the Exchange Act and the applicable published rules and
regulations thereunder; (ii) in their opinion, the consolidated financial
statements of FPL Group audited by them and incorporated by reference in
the Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the Exchange
Act and the published rules and regulations thereunder; (iii) on the basis
of performing a review of interim financial information as described in
SAS No. 71, Interim Financial Information, on the unaudited condensed
consolidated financial statements of FPL Group incorporated by reference
in the Prospectus, reading the latest available interim unaudited
consolidated financial statements of FPL Group since the close of FPL
Group's most recent audited fiscal year, reading the minutes and consents
of the Board of Directors and the Finance Committee of the Board of
Directors and Shareholders of FPL Group since the end of the most recent
audited fiscal year, and inquiries of officials of FPL Group who have
responsibility for financial and accounting matters (it being understood
that the foregoing procedures do not constitute an audit made in
accordance with generally accepted auditing standards and they would not
necessarily reveal matters of significance with respect to the comments
made in such letter, and accordingly that Deloitte & Touche LLP makes no
representation as to the sufficiency of such procedures for the several
Underwriters' purposes), nothing has come to their attention which caused
them to believe that (a) the unaudited condensed consolidated financial
statements of FPL Group incorporated by reference in the Prospectus (1) do
not comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the Exchange Act and the
published rules and regulations thereunder and (2) except as disclosed in
the Prospectus, are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the
audited consolidated financial statements of FPL Group incorporated by
reference in the Prospectus; (b) at the date of the latest available
interim balance sheet read by them and at a specified date not more than
five days prior to the Closing Date there was any change in the capital
stock or long-term debt of FPL Group and its subsidiaries, or decrease in
their consolidated net assets, in each case as compared with amounts shown
in the most recent condensed consolidated balance sheet incorporated by
reference in the Prospectus, except in all instances for changes or
decreases which the Prospectus discloses have occurred or may occur, or as
occasioned by the declaration, provision for, or payment of dividends, or
as occasioned by the sale of common stock pursuant to any employee benefit
plan or the dividend reinvestment plan or the repurchase of common stock
by FPL Group or which are described in such letter; (c) for the period
from the date of the most recent condensed consolidated balance sheet
incorporated by reference in the Prospectus to the latest available
interim balance sheet read by them and for the period from the date of the
latest available interim balance sheet read by them to a specified date
not more than five days prior to the Closing Date, there were any
decreases, as compared with the corresponding period in the preceding
year, in total consolidated operating revenues or in net income, except in
all instances for decreases which the Prospectus discloses have occurred
or may occur, or which are described in such letter; and (iv) they have
carried out certain procedures and made certain findings, as specified in
such letter, with respect to certain amounts included in the Prospectus
and Exhibit 12 to the Registration Statement and such other items as the
Representatives may reasonably request.
(f) Since the respective most recent dates as of which information
is given in the Registration Statement and Prospectus, and up to the
Closing Date, (i) there shall have been no material adverse change in the
business, properties or financial condition of (a) FPL Group Capital and
its subsidiaries taken as a whole or (b) FPL Group and its subsidiaries
taken as a whole, except in each case as reflected in or contemplated by
the Registration Statement and Prospectus, and (ii) there shall have been
no material transaction entered into by (a) FPL Group Capital or any of
its subsidiaries that is material to FPL Group Capital and its
subsidiaries taken as a whole or (b) FPL Group or any of its subsidiaries
that is material to FPL Group and its subsidiaries taken as a whole, in
each case other than transactions disclosed by the Registration Statement
and the Prospectus, and transactions in the ordinary course of business;
and at the Closing Date, the Representatives shall have received a
certificate to such effect from each of FPL Group Capital and FPL Group
signed by an officer of FPL Group Capital or FPL Group, as the case may
be.
(g) All legal proceedings to be taken in connection with the
issuance and sale of the Debentures and the Guarantee shall have been
satisfactory in form and substance to Counsel for the Underwriters.
In case any of the conditions specified above in this Section 9 shall not
have been fulfilled, this agreement may be terminated by the Representatives,
upon mailing or delivering written notice thereof to FPL Group Capital. Any such
termination shall be without liability of any party to any other party except as
otherwise provided in subsections (c) and (e) of Section 8 hereof and except
that in the event of such termination by the Representatives, FPL Group Capital
shall reimburse the Underwriters for out-of-pocket expenses reasonably incurred
by them in connection with the transactions contemplated by this agreement, not
in excess, however, of an aggregate of $5,000.
10. Condition of FPL Group Capital's and FPL Group's Obligations. The
-------------------------------------------------------------
obligation of FPL Group Capital to deliver the Debentures and the obligation of
FPL Group to deliver the Guarantee shall be subject to the following condition:
(a) No stop order suspending the effectiveness of the Registration
Statement, and no order directed to the adequacy of any Incorporated
Document, shall be in effect at the Closing Date, and no proceedings for
either such purpose shall be pending before, or threatened by, the
Commission on such date.
In case the condition specified in this Section 10 shall not have been
fulfilled, this agreement may be terminated by FPL Group Capital and FPL Group
upon mailing or delivering written notice thereof to the Representatives. Any
such termination shall be without liability of any party to any other party,
except as otherwise provided in subsections (c) and (e) of Section 8 hereof and
except that in the event of such termination FPL Group Capital shall reimburse
the Underwriters for out-of-pocket expenses reasonably incurred by them in
connection with the transactions contemplated by this agreement, not in excess,
however, of an aggregate of $5,000.
11. Indemnification.
----------------
(a) FPL Group Capital and FPL Group, jointly and severally, agree to
indemnify and hold harmless each Underwriter and each person who controls
any Underwriter within the meaning of Section 15 of the Securities Act
against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the
Securities Act or any other statute or common law and to reimburse each
such Underwriter and controlling person for any legal or other expenses
(including, to the extent hereinafter provided, reasonable counsel fees)
incurred by them in connection with investigating any such losses, claims,
damages or liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities, expenses or actions
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus (if
used prior to the Effective Date of the Registration Statement), including
all Incorporated Documents, or in the Registration Statement or the
Prospectus, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the indemnity
agreement contained in this paragraph shall not apply to any such losses,
claims, damages, liabilities, expenses or actions arising out of, or based
upon, any such untrue statement or alleged untrue statement, or any such
omission or alleged omission, if such statement or omission was made in
reliance upon and in conformity with information furnished herein, to FPL
Group Capital or to FPL Group in writing by or on behalf of any
Underwriter, through the Representatives, for use in connection with the
preparation of the Registration Statement or the Prospectus or any
amendment or supplement to either thereof, or arising out of, or based
upon, statements in or omissions from the Statements of Eligibility on
Form T-1 of the respective Trustees under the Indenture and the Guarantee;
and provided, further, that the indemnity agreement contained in this
paragraph in respect of any preliminary prospectus shall not inure to the
benefit of any Underwriter (or of any person controlling such Underwriter)
on account of any such losses, claims, damages, liabilities, expenses or
actions arising from the sale of the Debentures [of any series] to any
person if such Underwriter shall have failed to send or give to such
person (i) with or prior to the written confirmation of such sale, a copy
of the Prospectus or the Prospectus as amended or supplemented, if any
amendments or supplements thereto shall have been furnished at or prior to
the time of written confirmation of the sale involved, but exclusive of
any Incorporated Documents unless the alleged omission or alleged untrue
statement with respect to such preliminary prospectus is not corrected in
the Prospectus or the Prospectus as amended or supplemented at the time of
confirmation, or (ii) with or prior to the delivery of such Debentures to
such person, a copy of any amendment or supplement to the Prospectus which
shall have been furnished subsequent to such written confirmation and
prior to the delivery of such Debentures to such person, but exclusive of
any Incorporated Documents unless the alleged omission or alleged untrue
statement with respect to such preliminary prospectus was not corrected in
such amendment or supplement at the time of such delivery of such
Debentures. The indemnity agreement of FPL Group Capital and FPL Group
contained in this paragraph and the representations and warranties of FPL
Group Capital and FPL Group contained in Section 3 and Section 4 hereof,
respectively, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
any such controlling person, and shall survive the delivery of the
Debentures [of each series]. The Underwriters agree promptly to notify
each of FPL Group Capital and FPL Group, and each other Underwriter, of
the commencement of any litigation or proceedings against them or any of
them or any such controlling person in connection with the issuance and
sale of the Debentures [of any series].
(b) Each Underwriter agrees to indemnify and hold harmless each of
FPL Group Capital and FPL Group, their respective officers and directors,
each other Underwriter, and each person who controls any thereof within
the meaning of Section 15 of the Securities Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act or other statute
or common law, and to reimburse each of them for any legal or other
expenses (including, to the extent hereinafter provided, reasonable
counsel fees) incurred by them in connection with investigating any such
losses, claims, damages or liabilities, or in connection with defending
any actions, insofar as such losses, claims, damages, liabilities,
expenses or actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading if such statement or omission was
made in reliance upon and in conformity with information furnished herein,
to FPL Group Capital or FPL Group in writing by or on behalf of such
Underwriter, through the Representatives or otherwise, for use in
connection with the preparation of the Registration Statement or the
Prospectus or any amendment or supplement to any thereof. The indemnity
agreement of the respective Underwriters contained in this paragraph shall
remain operative and in full force and effect, regardless of any
investigation made by or on behalf of FPL Group Capital, FPL Group or any
of its officers or directors or any such other Underwriter or any such
controlling person, and shall survive the delivery of the Debentures [of
each series]. FPL Group Capital and FPL Group agree promptly to notify the
Representatives of the commencement of any litigation or proceedings
against FPL Group Capital, FPL Group (or any controlling person of either
thereof) or any of its officers or directors in connection with the
issuance and sale of the Debentures [of any series].
(c) FPL Group Capital, FPL Group and the several Underwriters each
agree that, upon the receipt of notice of the commencement of any action
against it, its officers and directors, or any person controlling it as
aforesaid, in respect of which indemnity may be sought on account of any
indemnity agreement contained herein, it will promptly give written notice
of the commencement thereof to the party or parties against whom indemnity
shall be sought thereunder, but the omission so to notify such
indemnifying party or parties of any such action shall not relieve such
indemnifying party or parties from any liability which it or they may have
to the indemnified party otherwise than on account of such indemnity
agreement. In case such notice of any such action shall be so given, such
indemnifying party shall be entitled to participate at its own expense in
the defense or, if it so elects, to assume (in conjunction with any other
indemnifying parties) the defense of such action, in which event such
defense shall be conducted by counsel chosen by such indemnifying party or
parties and satisfactory to the indemnified party or parties who shall be
defendant or defendants in such action, and such defendant or defendants
shall bear the fees and expenses of any additional counsel retained by
them; but if the indemnifying party shall elect not to assume the defense
of such action, such indemnifying party will reimburse such indemnified
party or parties for the reasonable fees and expenses of any counsel
retained by them; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and counsel
for the indemnifying party shall have reasonably concluded that there may
be a conflict of interest involved in the representation by such counsel
of both the indemnifying party and the indemnified party, the indemnified
party or parties shall have the right to select separate counsel,
satisfactory to the indemnifying party, to participate in the defense of
such action on behalf of such indemnified party or parties at the expense
of the indemnifying party (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel representing the indemnified parties who are parties to
such action).
12. Termination. This agreement may be terminated by the Representatives by
------------
delivering written notice thereof to FPL Group Capital, at any time prior to the
Closing Date if (a) after the date hereof and at or prior to the Closing Date
there shall have occurred any general suspension of trading in securities on the
New York Stock Exchange, Inc. or there shall have been established by the New
York Stock Exchange, Inc. or by the Commission or by any federal or state agency
or by the decision of any court any limitation on prices for such trading or any
restrictions on the distribution of securities, or a general banking moratorium
declared by New York or federal authorities, or (b) there shall have occurred
any new outbreak of hostilities, including, but not limited to, an escalation of
hostilities which existed prior to the date of this agreement or other national
or international calamity or crisis, the effect of any such event specified in
(a) or (b) above on the financial markets of the United States shall be such as
to make it impracticable for the Underwriters to enforce contracts for the sale
of the Debentures [of any series]. This agreement may also be terminated at any
time prior to the Closing Date if in the judgment of the Representatives the
subject matter of any amendment or supplement to the Registration Statement or
the Prospectus prepared and furnished by FPL Group Capital or FPL Group reflects
a material adverse change in the business, properties or financial condition of
FPL Group Capital and its subsidiaries taken as a whole or FPL Group and its
subsidiaries taken as a whole which renders it either inadvisable to proceed
with such offering, if any, or inadvisable to proceed with the delivery of the
Debentures [of any series] to be purchased hereunder. Any termination of this
agreement pursuant to this Section 12 shall be without liability of any party to
any other party except as otherwise provided in subsections (c) and (e) of
Section 8 hereof.
13. Miscellaneous. The validity and interpretation of this agreement shall
--------------
be governed by the laws of the State of New York. This agreement shall inure to
the benefit of FPL Group Capital, FPL Group, the several Underwriters and, with
respect to the provisions of Section 11 hereof, each controlling person referred
to in said Section 11, and their respective successors. Nothing in this
agreement is intended or shall be construed to give to any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this agreement or any provision herein contained. The term "successors" as used
in this agreement shall not include any purchaser, as such purchaser, of any
Debentures from any of the several Underwriters.
14. Notices. All communications hereunder shall be in writing or by
--------
telegram and, if to the Underwriters, shall be mailed or delivered to the
Representatives at the address set forth in Schedule I hereto, or if to FPL
Group Capital or FPL Group, shall be mailed or delivered to it at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer.
If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter and your acceptance shall constitute a binding agreement between us.
Very truly yours,
FPL Group Capital Inc
By:
--------------------------
Name:
Title:
FPL Group, Inc.
By:
--------------------------
Name:
Title:
Accepted and delivered as of
the date first above written:
By:
--------------------------
Name:
Title:
Acting on their own behalf and as Representatives of the other several
Underwriters referred to in the foregoing agreement.
SCHEDULE I
Underwriting Agreement dated __________, 1999 Registration Statement Nos.
333-64685 and 333-64685-01 and 333-______ and 333-______-01
Representatives and Addresses:
Securities:
Designation:
Principal Amount:
Indenture dated as of:
Date of Maturity:
Interest Rate:
Purchase Price:
Public Offering Price:
Closing Date and Location:
SCHEDULE II
Principal Amount of
___% Debentures
Underwriter Series due ________
----------- -------------------
TOTAL