Exhibit 1(b)
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FPL Group, Inc.
FPL Group Capital Inc
FPL Group Capital Trust __
Trust Preferred 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"), FPL
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Group Capital Inc, a Florida corporation and a wholly-owned subsidiary of FPL
Group ("FPL Group Capital"), and FPL Group Capital Trust __, a statutory trust
formed under the Delaware Statutory Trust Act (the "Trust," and hereinafter,
together with FPL Group 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 [__] Trust Preferred
Securities, [of the series designation[s], with the terms and in the liquidation
amount[s] specified in Schedule I hereto] (the "Trust Preferred 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
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 Trust Preferred Securities
-------------------------
represents a preferred undivided beneficial interest in the assets of the Trust.
The Trust Preferred 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 Trust
Preferred 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 Trust Preferred 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 Capital (the "Subordinated Debentures"). The Subordinated Debentures
will be issued pursuant to an Indenture (For Unsecured Subordinated Debt
Securities) among FPL Group Capital, The Bank of New York, as trustee
("Subordinated Indenture Trustee"), and FPL Group, as guarantor (the
"Subordinated Indenture"). The 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 Trust Preferred Securities and Guarantees, together with the
Subordinated Debentures, are referred to herein as the "Offered Securities."
3. Representations and Warranties of the Trust. The Trust represents and
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warrants to the several Underwriters that:
(a) The Trust has, together with FPL Group, FPL Group Capital and FPL
Group Capital Trust __, 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
$2,674,900,000 aggregate amount of (i) FPL Group Capital's unsecured debt
securities ("Debt Securities"), (ii) FPL Group's guarantee relating to the
Debt Securities, (iii) FPL Group's shares of common stock, $.01 par value,
including the preferred share purchase rights, if any, attached thereto
(the "Shares"), (iv) contracts to purchase Shares or other agreements or
instruments requiring FPL Group to issue Shares (collectively, "Stock
Purchase Contracts"), (v) units, each representing ownership of a Stock
Purchase Contract and either Debt Securities, Trust Preferred Securities or
debt obligations of third parties, including U.S. Treasury securities
2
("Units"), (vi) Subordinated Debentures, (vii) Trust Preferred Securities
and (viii) Guarantees (provided however, that the aggregate amount of all
such securities or combinations of such securities offered for sale to the
public by FPL Group, FPL Group Capital, the Trust and FPL Group Capital
Trust __ included in the registration statement may not exceed
$1,337,450,000). [None] [$_______________] of the $2,674,900,000 aggregate
amount of securities registered with the Commission under the Securities
Act pursuant to Registration Statement Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇,
▇▇▇-▇▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇▇-▇▇ [have] [has] 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 ▇▇▇-▇▇▇▇▇▇-▇▇ 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 and FPL Group Capital 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. 333-102173,
▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇▇-▇▇, 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. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇
and ▇▇▇-▇▇▇▇▇▇-▇▇ 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 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 & ▇▇▇▇▇▇▇▇, 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 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
3
Date the Registration Statement will not, contain any 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
any 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, of the respective Trustees
under the Subordinated Indenture, the Trust Agreement, the Guarantees, the
Guarantee Agreement, the Indenture (For Unsecured Debt Securities), dated
as of June 1, 1999 ("Senior Indenture"), between FPL Group Capital and The
Bank of New York, as trustee, and the Guarantee Agreement, dated as of June
1, 1999 ("Senior Guarantee Agreement"), between FPL Group and The Bank of
New York, as trustee, and of the Purchase Contract Agent under the Purchase
Contract Agreement(s) which constitute Stock Purchase Contracts (the
"Purchase Contract Agreement") or to any statements or omissions made in
the Registration Statement or the Prospectus relating to The Depository
Trust Company ("DTC") Book-Entry-Only System that are based solely on
information contained in published reports of DTC.
(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 Trust Preferred Securities when issued and
delivered as provided herein will constitute valid and binding obligations
of the Trust 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. 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
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
4. 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 __, filed with the Commission Registration Statement
Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇▇-▇▇ for the
registration under the Securities Act of $1,337,450,000 aggregate amount of
(i) FPL Group Capital's Debt Securities, (ii) FPL Group's guarantee
relating to the Debt Securities, (iii) FPL Group's Shares, (iv) Stock
Purchase Contracts, (v) Units, (vi) Subordinated Debentures, (vii) Trust
Preferred Securities and (viii) Guarantees. [None] [$__________] of the
$1,337,450,000 aggregate amount of securities registered with the
Commission under the Securities Act pursuant to Registration Statement Nos.
333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇▇-▇▇ [have] [has]
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. 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.
(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 any 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 any 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, of the
respective Trustees under the Subordinated Indenture, the Trust Agreement,
the Guarantees, the Guarantee Agreement, the Senior Indenture and the
Senior Guarantee Agreement and of the Purchase Contract Agent under the
Purchase Contract Agreement 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.
5
(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
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 Subordinated 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. Neither the execution and delivery of the
Subordinated Debentures nor the performance by FPL Group Capital of its
obligations thereunder requires 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 each of 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 or other ownership interests 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) FPL Group Capital and each of its 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 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 Subordinated Debentures conform in all material respects to
the description thereof in the Prospectus.
6
(h) The Subordinated Indenture (i) has been duly authorized by all
necessary corporate action on the part of FPL Group Capital and, when duly
executed and delivered as provided therein, will constitute 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 __, filed with the Commission Registration Statement
Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇▇-▇▇ for the
registration under the Securities Act of $1,337,450,000 aggregate amount of
(i) FPL Group Capital's Debt Securities, (ii) FPL Group's guarantee
relating to the Debt Securities, (iii) FPL Group's Shares, (iv) Stock
Purchase Contracts, (v) Units, (vi) Subordinated Debentures, (vii) Trust
Preferred Securities and (viii) Guarantees. [None] [$___________] of the
$1,337,450,000 aggregate amount of securities registered with the
Commission under the Securities Act pursuant to Registration Statement Nos.
333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇▇-▇▇ [have] [has]
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. 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.
(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 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 any untrue
statement of a material fact, or omit to state a material fact required to
7
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 any 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 on Form
T-1, or amendments thereto, of the respective Trustees under the
Subordinated Indenture, the Trust Agreement, the Guarantees, the Guarantee
Agreement, the Senior Indenture and the Senior Guarantee Agreement and of
the Purchase Contract Agent under the Purchase Contract Agreement 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 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 Guarantees
when issued and delivered as provided herein will constitute valid and
binding obligations of FPL Group enforceable in accordance with their
respective terms, except as limited or affected by bankruptcy, insolvency,
8
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 Agreement or the Subordinated
Indenture by FPL Group required, nor the performance by FPL Group of its
obligations thereunder with respect to the Trust Preferred Securities and
the Subordinated Debentures requires, 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.
(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) the terms and provisions of the Subordinated
Indenture and Trust Agreement 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 each of its direct significant subsidiaries (as
defined in Regulation S-X) have good and marketable title to all of the
capital stock or other ownership interests 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.
(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) Each of the Trust Agreement, Subordinated Indenture and Guarantee
Agreement (i) has been duly authorized by all necessary corporate action on
the part of FPL Group 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
9
principles of equity and (ii) conforms in all material respects to the
description thereof in the Prospectus.
(j) 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 Trust Preferred
Securities set forth opposite their respective names in Schedule II hereto at
the purchase price for those Trust Preferred Securities set forth in Schedule I
hereto.
The Underwriters agree to make a bona fide public offering of the Trust
Preferred 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 Trust Preferred Securities will
be offered to the public at the amount per Trust Preferred Security as set forth
in Schedule I hereto and to certain dealers selected by the Representatives at a
price which represents a concession not in excess of the amount per Trust
Preferred Security under the public offering price as set forth in Schedule I
hereto.
7. Time, Date and Place of Closing, Default of Underwriter. Delivery of the
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Trust Preferred 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 time and date of such delivery and
payment are herein called the "Closing Date."
The Trust Preferred 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 Trust Preferred 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 Trust Preferred
Securities by the Representatives on behalf of the Underwriters, the Trust
agrees to make such Trust Preferred 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 Trust Preferred Securities will be
used by the Trust to purchase Subordinated Debentures, FPL Group and FPL Group
Capital agree 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
Trust Preferred 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
10
non-defaulting Underwriters shall be obligated to purchase and pay for (in
addition to the respective number of the Trust Preferred Securities set forth
opposite their respective names in Schedule II hereto) the number of the Trust
Preferred 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 Trust
Preferred 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 Trust Preferred 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 Trust Preferred Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase. If any of the Trust
Preferred 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 Trust Preferred 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 Trust Preferred Securities or (ii) FPL Group or the Trust
notifies the non-defaulting Underwriters that it has arranged for the purchase
of such Trust Preferred 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
Trust Preferred 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 Trust Preferred
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:
(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
11
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 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 Trust Preferred 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 Subordinated Indenture, the
Trust Agreement and the Guarantee Agreement. FPL Group 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 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 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 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 any 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
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 Trust Preferred
Securities, the Trust Guarantee, and to the extent required or advisable,
12
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 and expenses of
counsel) in the aggregate not exceeding $5,000, 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.
9. Conditions of Underwriters' Obligations to Purchase and Pay for Trust
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Preferred Securities. The several obligations of the Underwriters to purchase
--------------------
and pay for the Trust Preferred 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 Representatives shall have received, prior to payment for the
Trust Preferred Securities, a certificate from each of the Offerors dated
the Closing Date and signed by an officer, in the case of FPL Group and FPL
Group Capital, and by an administrative trustee or authorized
representative in the case of the Trust, to the effect that the respective
representations and warranties made by such Offeror herein are true and
correct as of the Closing Date in all material respects.
(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 Trust
Preferred Securities, a certificate from each of FPL Group, FPL Group
Capital and the Trust dated the Closing Date and signed by an officer in
the case of FPL Group 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, FPL Group Capital and the Trust, as the case
may be, threatened by, the Commission.
13
(c) On the Closing Date, the Representatives shall have received from
Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to FPL Group and FPL Group Capital,
▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, co-counsel to FPL Group and FPL Group Capital,
Hunton & ▇▇▇▇▇▇▇▇, Counsel for the Underwriters, and ▇▇▇▇ ▇▇▇▇▇ LLP,
special Delaware counsel to FPL Group, 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, on the unaudited condensed
consolidated financial statements of FPL Group incorporated by reference in
the Prospectus, reading 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 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, 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
14
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; (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 (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 (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
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.
(f) All legal proceedings to be taken in connection with the issuance
and sale of the Trust Preferred Securities and the Trust Guarantee shall
have been satisfactory in form and substance to Counsel for the
Underwriters.
(g) [The Trust Preferred 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 Trust Preferred Securities and the Trust Guarantee,
respectively, to the Representatives for the respective accounts of the
Underwriters and the obligations of FPL Group Capital and FPL Group to deliver
15
the Subordinated Debentures 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,
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, 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
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 Indenture, 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 person controlling such
Underwriter) on account of any such losses, claims, damages, liabilities,
expenses or actions arising from the sale of the Trust Preferred Securities
to any person if such Underwriter shall have failed to send or give to such
16
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 Trust Preferred
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 Trust Preferred 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 Trust Preferred Securities. The indemnity agreement of the Offerors
contained in this subsection (a) of Section 11 and the representations and
warranties of the Trust, 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 Trust Preferred 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 Trust Preferred Securities.
(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, 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 Registration Statement
17
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 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 Trust Preferred
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
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
18
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 Trust Preferred 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 Trust Preferred
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 Trust
Preferred Securities is to the total amount of Trust Preferred 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 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
19
have occurred any new material 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 or
any material adverse change in financial, political or economic conditions
affecting the United States, the effect of any such event specified in (i)
or (ii) 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 Trust Preferred 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 Trust
Preferred Securities or the Subordinated Debentures or any securities of
FPL Group Capital which are of the same class as the Subordinated
Debentures by either ▇▇▇▇▇'▇ Investor Service, Inc. ("Moody's") or Standard
& Poor's Ratings Services, a division of ▇▇▇▇▇▇-▇▇▇▇ 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 Trust Preferred Securities or the
Subordinated Debentures or any securities of FPL Group Capital which are of
the same class as the 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 Trust Preferred Securities and the delivery of the Trust
Preferred 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
change in the business, properties or financial condition of FPL Group and its
subsidiaries taken as a whole 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 Trust Preferred
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. This agreement shall inure to
the benefit of 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 Trust
Preferred 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, FPL Group Capital or the Trust, shall be mailed or delivered to it at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer.
20
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 Trust __
By:
---------------------------------
Name:
Title: Administrative Trustee
FPL Group, Inc.
By:
---------------------------------
Name:
Title:
FPL Group Capital Inc
By:
---------------------------------
Name:
Title:
Accepted and delivered as of
the date first above written:
------------------------------
By:---------------------------
Name:
Title:
Acting on their own behalf and on behalf of the other several Underwriters
referred to in the foregoing agreement.
21
SCHEDULE I
Underwriting Agreement dated _______, 200__
Registration Statement Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇, and
▇▇▇-▇▇▇▇▇▇-▇▇
Representatives and Addresses:
Trust Preferred Securities:
Designation:
Number of Trust Preferred Securities:
Aggregate Liquidation Amount: $
Public Offering Price: $
Underwriting Discount: $
Purchase Price: $
Closing Date, Time and Location:________, 200__ at the
offices of ▇▇▇▇▇▇ ▇▇▇▇
& Priest LLP, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
at 10:00 A.M.
Subordinated Debentures:
Designation:
Principal Amount:
Date of Maturity:
Interest Rate:
I-1
SCHEDULE II
Number of
Trust Preferred
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"), 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 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 __________
(the "Subordinated Indenture"), among FPL Group Capital, as issuer, 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 (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," 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, FPL 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 __________, which registration statement was filed by
FPL Group, FPL Group Capital, the Trust and FPL Group Capital Trust __ with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act") (references herein to the term
"Registration Statement" as of any given date shall mean Registration Statement
Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇, and ▇▇▇-▇▇▇▇▇▇-▇▇, as amended and
III-1
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")); (2) the prospectus dated __________ forming a
part of Registration Statement Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇,
▇▇▇-▇▇▇▇▇▇-▇▇, as supplemented by a prospectus supplement dated __________
relating to the Preferred Trust Securities, Junior Subordinated Debentures and
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 Subordinated Guarantees filed
pursuant to Rule 424, and as further amended and supplemented to such date,
including the Incorporated Documents); (3) the Subordinated Indenture; (4) the
Preferred Trust Securities Guarantee Agreement; (5) the Agreement as to Expenses
and Liabilities, dated as of __________ ("Agreement as to Expenses"), between
FPL Group and the Trust; (6) 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); (7) the corporate proceedings of FPL Group
with respect to the Registration Statement, the Subordinated Indenture, the
Subordinated Guarantees, the Preferred Trust Securities Guarantee Agreement, the
Trust Agreement and the Agreement as to Expenses; (8) the corporate proceedings
of FPL Group Capital with respect to the Registration Statement, the Subordinate
Indenture and the Junior Subordinated Debentures; (9) 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");
(10) FPL Group Capital's Articles of Incorporation as amended to the date hereof
(the "FPL Group Capital Charter") and Bylaws as amended to the date hereof (the
"FPL Group Capital Bylaws"); and (11) 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 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
each has valid franchises, licenses and permits adequate for the conduct of its
respective businesses.
II.
FPL Group 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 FPL Group Capital
and FPL Group by all necessary corporate action, has been duly and validly
executed and delivered by FPL Group Capital and FPL Group, and is a valid and
binding obligation of FPL Group Capital and FPL Group enforceable in accordance
with its terms, except as limited or affected by bankruptcy, insolvency,
III-2
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 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.
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 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 the best of our knowledge, FPL Group Capital and its direct significant
subsidiaries (as defined in Regulation S-X promulgated under the Securities Act
("Regulation S-X")) have good and marketable title to all of the capital stock
or other ownership interests 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 and its
direct significant subsidiaries (as defined in Regulation S-X) have good and
marketable title to all of the capital stock or other ownership interests 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.
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,
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 was declared, 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.
III-3
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 Capital and FPL
Group with all the terms and provisions of the Subordinated Indenture 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 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 or
FPL Group Capital, 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
or FPL Group Capital, each together with its respective subsidiaries taken as a
whole, 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
as guaranteed by the Subordinated Debenture Guarantee or the Preferred Trust
Securities as guaranteed by 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 (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.
XII.
The Agreement has been duly and validly authorized, executed and delivered
by each of FPL Group and FPL Group Capital.
III-4
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, there is no material
pending legal proceeding to which FPL Group or any of its subsidiaries or FPL
Group Capital or any of its subsidiaries is a party or of which property of FPL
Group or any of its subsidiaries 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 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 and FPL Group
Capital, certain of their other legal counsel, their independent public
accountants and your representatives. Additionally, as counsel to FPL Group and
FPL Group Capital, we have responsibility for certain of 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 the Registration Statement, 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 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, any 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.
III-5
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 ▇▇▇▇ ▇▇▇▇▇ LLP, Wilmington, Delaware,
including the assumptions, qualifications, limitations and exceptions therein.
As to all matters of Florida law, ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP [and Hunton &
▇▇▇▇▇▇▇▇] [are] [is] hereby authorized to rely upon this opinion as though it
were rendered to [each of them] [it].
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"), 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 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 __________
(the "Subordinated Indenture"), among FPL Group Capital, as issuer, 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 (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," 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, FPL 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 __________, which registration statement was filed by
FPL Group, FPL Group Capital, the Trust and FPL Group Capital Trust __ with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act") (references herein to the term
"Registration Statement" as of any given date shall mean Registration Statement
Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇, and ▇▇▇-▇▇▇▇▇▇-▇▇, as amended and
IV-1
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")); (2) the prospectus dated __________ forming a
part of Registration Statement Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇,
▇▇▇-▇▇▇▇▇▇-▇▇, as supplemented by a prospectus supplement dated __________
relating to the Preferred Trust Securities, Junior Subordinated Debentures and
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 Subordinated Guarantees filed
pursuant to Rule 424, and as further amended and supplemented to such date,
including the Incorporated Documents); (3) the Subordinated Indenture; (4) the
Preferred Trust Securities Guarantee Agreement; (5) the Agreement as to Expenses
and Liabilities, dated as of __________ ("Agreement as to Expenses"), between
FPL Group and the Trust; (6) 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); (7) the corporate proceedings of FPL Group
with respect to the Registration Statement, the Subordinated Indenture, the
Subordinated Guarantees, the Preferred Trust Securities Guarantee Agreement, the
Trust Agreement and the Agreement as to Expenses; (8) the corporate proceedings
of FPL Group Capital with respect to the Registration Statement, the Subordinate
Indenture and the Junior Subordinated Debentures; (9) 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");
(10) FPL Group Capital's Articles of Incorporation as amended to the date hereof
(the "FPL Group Capital Charter") and Bylaws as amended to the date hereof (the
"FPL Group Capital Bylaws"); and (11) 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 FPL Group Capital
and FPL Group by all necessary corporate action, has been duly and validly
executed and delivered by FPL Group Capital and FPL Group, and is a valid and
binding obligation of FPL Group Capital and 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.
II.
The Junior Subordinated Debentures are 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.
IV-2
III.
The Preferred Trust Securities Guarantee Agreement and Agreement as to
Expenses each 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 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 the best of our knowledge, FPL Group Capital and its direct significant
subsidiaries (as defined in Regulation S-X promulgated under the Securities Act
("Regulation S-X")) have good and marketable title to all of the capital stock
or other ownership interests 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 and its
direct significant subsidiaries (as defined in Regulation S-X) have good and
marketable title to all of the capital stock or other ownership interests 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.
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 was declared, 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 Capital and FPL
Group with all the terms and provisions of the Subordinated Indenture 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
IV-3
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 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 or
FPL Group Capital, 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
or FPL Group Capital, each together with its respective subsidiaries taken as a
whole, 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
as guaranteed by the Subordinated Debenture Guarantee or the Preferred Trust
Securities as guaranteed by 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
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 (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 Preferred Trust Securities have been listed, upon official notice of
issuance, on The New York Stock Exchange, Inc.]
XI.
The Agreement has been duly and validly authorized, executed and delivered
by each of FPL Group and FPL Group Capital.
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
IV-4
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 and FPL Group
Capital, certain of other their other legal counsel, 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 the
Registration Statement, 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 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, any 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
relating to the incorporation of 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 ▇▇▇▇ ▇▇▇▇▇ 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.
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-5
SCHEDULE V
[LETTERHEAD OF HUNTON & ▇▇▇▇▇▇▇▇]
[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 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, 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 Capital
and FPL Group by all necessary corporate action, has been duly and validly
executed and delivered by FPL Group Capital and FPL Group, and is a valid and
binding obligation of FPL Group Capital and 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.
2. The Junior Subordinated Debentures are 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.
3. The Preferred Trust Securities Guarantee Agreement and Agreement as to
Expenses each 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 in accordance with their
V-1
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 and validly authorized, executed and
delivered by each of FPL Group, FPL Group Capital and the Trust.
5. Registration Statement Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and
▇▇▇-▇▇▇▇▇▇-▇▇ (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 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.
7. 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, the Trust
and FPL Group Capital 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 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 and FPL Group
Capital, certain of their legal counsel, 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
V-2
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 the Registration Statement, 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 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,
any 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 and FPL
Group Capital, required by Section __ of the Agreement, and we believe such
opinion to be satisfactory. [We have, with your consent, relied upon such
opinion as to the matters covered in such opinion relating to the laws of the
State of Florida]. We have also reviewed the opinions of even date herewith
addressed to you by ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, counsel to FPL Group and FPL Group
Capital, and ▇▇▇▇ ▇▇▇▇▇ LLP, special Delaware counsel to FPL Group, 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 ▇▇▇▇ ▇▇▇▇▇ 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 ▇▇▇▇ ▇▇▇▇▇ 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 Delaware counsel for FPL Group, Inc., a Florida
corporation ("FPL Group"), FPL Group Capital Inc, a Florida corporation ("FPL
Group Capital"), and FPL Group Capital Trust __, a Delaware statutory trust (the
"Trust"), in connection with the matters set forth herein. At your request, this
opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our examination of
documents has been limited to the examination of originals or copies of the
following:
(a) The Certificate of Trust of the Trust, dated February 27, 2003
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on February 27, 2003;
(b) The Trust Agreement of the Trust, dated as of February 27, 2003,
(the "Initial Trust Agreement") by and among FPL Group, as depositor, and the
trustees of the Trust named therein;
(c) The Registration Statement Nos. 333-102173, ▇▇▇-▇▇▇▇▇▇-▇▇,
▇▇▇-▇▇▇▇▇▇-▇▇ and ▇▇▇-▇▇▇▇▇▇-▇▇ on Form S-3, as amended (the "Registration
Statement"), including a prospectus (the "Preliminary Prospectus"), relating,
among other things, to the trust preferred securities of the Trust representing
preferred undivided beneficial interests in the assets of the Trust (each, a
"Preferred Trust Security" and collectively, the "Preferred Trust Securities"),
as filed by FPL Group, FPL Group Capital, FPL Group Capital Trust _ and the
Trust, with the Securities and Exchange Commission on or about March 18, 2003;
(d) The Prospectus Supplement dated ___________, 200_ (together with
the Preliminary Prospectus, the "Prospectus"), relating to the Preferred Trust
Securities;
(e) The Amended and Restated Trust Agreement of the Trust, dated as of
__________ (including Exhibits A, B, C and D thereto) (the "Trust Agreement"),
VI-1
among FPL Group, the trustees of the Trust named therein (the "Trustees") and
the holders, from time to time, of undivided beneficial interests in the assets
of the Trust;
(f) The Underwriting Agreement, dated __________ (the "Agreement"),
among you, FPL Group, FPL Group Capital and the Trust; and
(g) A Certificate of Good Standing for the Trust, dated __________,
obtained from the Secretary of State.
Capitalized terms used in this opinion but not otherwise defined herein shall
have the meanings set forth in the Agreement.
For purposes of this opinion, 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.
For purposes of this opinion, we have assumed: (i) that the Trust Agreement, as
amending and restating the Initial 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 that the Trust Agreement has not been amended; (ii) except to the extent
provided in Paragraph 1 below, the due creation, due formation or due
organization, as the case may be, and the 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
natural persons who are parties to the documents examined by us; (iv) except to
the extent set forth in Paragraph 2 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 Paragraph 4 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 by
the Trust (collectively, the "Preferred Trust Security Holders") of a Preferred
Trust Securities certificate for the Preferred Trust Security and the payment
for the Preferred Trust Security acquired by it, in accordance with the Trust
Agreement, and as described in the Prospectus; (vii) that the Preferred Trust
Securities are issued and sold to the Preferred Trust Security Holders in
accordance with the Agreement and the Trust Agreement, and as described in the
Prospectus; (viii) the receipt, by the Person (the "Common Trust Security
Holder") to whom a Common Trust Security of the Trust representing common
undivided beneficial interests in the assets of the Trust (each, a "Common Trust
Security" and collectively, the "Common Trust Securities") (the Preferred Trust
Securities and the Common Trust Securities being hereinafter collectively
referred to as "Trust Securities") is to be issued by the Trust, of a Common
Trust Securities certificate for the Common Trust Security and the payment for
the Common Trust Security acquired by it, in accordance with the Trust Agreement
and as described in the Prospectus; (ix) that the Common Trust Securities are
VI-2
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 and filing documents with the Secretary of State)
or employees in the State of Delaware; (xi) that the Trust will be not be
taxable as a corporation but will instead be classified as a grantor trust under
subpart E, Part I of Subchapter J of Chapter 1 of the Internal Revenue Code of
1986, as amended; (xii) that any documents which were provided to us in draft
will not, as finally executed, vary in any material respect from the drafts of
such documents last received by us prior to the issuance of this opinion; (xiii)
the authenticity of all documents submitted to us as originals, whether
certified or uncertified; and (xiv) the genuineness of all signatures.
Based upon the foregoing, and upon our examination of such questions of Delaware
law as we have considered necessary or appropriate, and subject to the
assumptions, qualifications, limitations and exceptions set forth herein, we are
of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a statutory trust under the Delaware Statutory Trust Act, and all
filings required under the laws of the State of Delaware with respect to the
creation and valid existence of the Trust as a statutory trust have been made.
2. Under the Delaware Statutory Trust Act and the Trust Agreement,
the Trust has the trust power and authority to (i) own property and conduct its
business, all as described in the Prospectus, (ii) execute and deliver, and
perform its obligations under, the Agreement, and (iii) issue, and perform its
obligations under, the Trust Securities.
3. The Trust Agreement is a legal, valid and binding agreement of FPL
Group and the Trustees, and is enforceable against FPL Group and the Trustees in
accordance with its terms.
4. The execution and delivery of the Agreement by the Trust, and the
performance by the Trust of its obligations thereunder, have been duly
authorized by all requisite trust action on the part of the Trust.
5. No authorization, approval, consent or order of any Delaware
court, governmental authority or agency is required to be obtained by the Trust
solely in connection with the issuance and sale of the Preferred Trust
Securities.
6. The Preferred Trust Securities have been duly authorized by the
Trust Agreement and, when issued and sold in accordance with the Trust
Agreement, the Preferred Trust Securities will be, subject to the qualifications
set forth herein, fully paid and non-assessable undivided beneficial interests
in the assets of the Trust.
7. Except to the extent that Preferred Trust Security Holders may be
obligated to make payments as set forth in the Trust Agreement, the Preferred
Trust Security Holders, as beneficial owners of the Trust, 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.
VI-3
8. Under the Delaware Statutory Trust Act and the Trust Agreement,
the issuance of the Preferred Trust Securities is not subject to preemptive
rights.
9. The issuance and sale by the Trust of the Trust Securities, the
execution, delivery and performance by the Trust of the Agreement, the
consummation by the Trust of the transactions contemplated thereby and the
compliance by the Trust with its obligations thereunder do not violate (i) any
of the provisions of the Certificate or the Trust Agreement, or (ii) any
applicable Delaware law.
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 opinion expressed in Paragraph 3 above is subject, as to enforceability, to
the effect upon the Trust Agreement of bankruptcy, insolvency, reorganization,
receivership, moratorium, fraudulent transfer or other laws affecting creditors'
rights and remedies generally and general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or law),
including (without limitation) concepts of materiality, reasonableness, good
faith and fair dealing.
We have not participated in the preparation of the Prospectus and assume no
responsibility for its contents.
This opinion is limited to the laws of the State of Delaware (excluding the
securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal laws
and rules and regulations relating thereto.
We note that the Preferred Trust Security Holders may be obligated, pursuant to
the Trust Agreement, to (i) provide security and/or indemnity in connection with
and pay taxes or governmental charges arising from transfers or exchanges of
Preferred Trust Securities certificates and the issuance of replacement
Preferred Trust Securities certificates, and (ii) provide security and/or
indemnity in connection with requests of or directions to the Property Trustee
to exercise its rights and powers under the Trust Agreement.
We consent to your reliance as to matters of Delaware law upon this opinion in
connection with the Agreement. We also consent to the reliance by Steel ▇▇▇▇▇▇ &
▇▇▇▇▇ LLP, ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP and Hunton & ▇▇▇▇▇▇▇▇ as to all matters of
Delaware law upon this opinion in connection with opinions to be rendered by
them on the date hereof pursuant to the Agreement. Further, we consent to the
reliance by The Bank of New York (in its capacity as Subordinated Indenture
Trustee under the Subordinated Indenture, as trustee under the Guarantee
Agreement 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)
as to all matters of Delaware law upon this opinion in connection with the
matters set forth herein. Except as stated above, this opinion may not be used,
quoted from, circulated to, published or relied upon by any other person or used
in any other context without the prior written consent of this firm. This
opinion is given as of the date hereof, and we assume no obligation to update or
VI-4
supplement this opinion to reflect any facts or circumstances which might
hereafter come to our attention or any changes in the law which may hereafter
occur.
Very truly yours,
▇▇▇▇ ▇▇▇▇▇ LLP
