AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 28, 1999
REGISTRATION STATEMENT NOS. 333-______ AND 333-______-01
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FPL GROUP, INC. FLORIDA 59-2449419
FPL GROUP CAPITAL INC FLORIDA 59-2576416
(Exact name of each (State or other (I.R.S. Employer
registrant as specified jurisdiction of incorporation Identification No.)
in its charter) or organization)
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700 Universe Boulevard
Juno Beach, Florida 33408
(561) 694-4000
(Address, including zip code, and telephone number, including area code, of
registrants' principal executive offices)
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Dennis P. Coyle Jeffrey I. Mullens, P.A. Robert J. Reger, Jr., Esq.
General Counsel Steel Hector & Davis LLP Thelen Reid & Priest LLP
and Secretary 1900 Phillips Point West 40 West 57th Street
FPL Group, Inc. 777 South Flagler Drive New York, New York 10019
700 Universe Boulevard West Palm Beach, (212) 603-2000
Juno Beach, Florida 33408 Florida 33401
(561) 694-4644 (561) 650-7257
(Names and addresses, including zip codes, and telephone numbers,
including area codes, of agents for service)
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It is respectfully requested that the Commission send copies of all
notices, orders and communications to:
Richard L. Harden, Esq.
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004
(212) 858-1000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this registration statement as determined by
market conditions and other factors.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF PROPOSED MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED OFFERING PRICE (1) REGISTRATION FEE
- -------------------------------------------------------------------------------
FPL Group Capital Inc Debt Securities $500,000,000 $139,000
FPL Group, Inc. Guarantee (2) (3)
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(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(o) under the Securities Act of 1933, as amended (the
"Securities Act").
(2) The value attributable to the FPL Group, Inc. Guarantee, if any, is
reflected in the market price of the FPL Group Capital Inc Debt Securities.
(3) Pursuant to Rule 457(n) under the Securities Act, no separate fee for the
FPL Group, Inc. Guarantee attributable to the FPL Group Capital Inc Debt
Securities registered pursuant hereto shall be payable.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
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The information in this prospectus is not complete and may be changed. FPL Group
Capital may not sell these securities until the registration statement filed
with the Securities and Exchange Commission is effective. This prospectus is not
an offer to sell these securities and it is not soliciting an offer to buy these
securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED SEPTEMBER 28, 1999
PROSPECTUS
$500,000,000
FPL GROUP CAPITAL INC
DEBT SECURITIES
THE DEBT SECURITIES WILL BE ABSOLUTELY, IRREVOCABLY AND
UNCONDITIONALLY GUARANTEED BY
FPL GROUP, INC.
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FPL Group Capital Inc may issue from time to time up to $500,000,000 of its
unsecured debt securities. FPL Group Capital Inc's corporate parent, FPL Group,
Inc., has agreed to absolutely, irrevocably and unconditionally guarantee the
payment of principal, interest and premium on these debt securities.
FPL Group Capital will provide specific terms of these debt securities,
including their offering prices, in supplements to this prospectus. The
supplements may also add, update or change information contained in this
prospectus. You should read this prospectus and any supplement carefully before
you invest.
FPL Group Capital may offer these debt securities directly or through
underwriters, agents or dealers. The supplements to this prospectus will
describe the terms of any particular plan of distribution, including any
underwriting arrangements. The "Plan of Distribution" section on page 16 of this
prospectus also provides more information on this topic.
Both FPL Group Capital's and FPL Group's principal executive offices are
located at 700 Universe Boulevard, Juno Beach, Florida 33408, telephone number
(561) 694-4000, and their mailing address is P.O. Box 14000, Juno Beach, Florida
33408-0420.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
_____________, 1999
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WHERE YOU CAN FIND MORE INFORMATION
FPL Group files annual, quarterly and other reports and other information
with the SEC. You can read and copy any information filed by FPL Group with the
SEC at the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington,
D.C. 20549. You can obtain additional information about the Public Reference
Room by calling the SEC at 1-800-SEC-0330.
In addition, the SEC maintains an Internet site (http://www.sec.gov) that
contains reports, proxy and information statements, and other information
regarding issuers that file electronically with the SEC, including FPL Group.
FPL Group also maintains an Internet site (http://www.fplgroup.com).
FPL Group Capital does not file reports or other information with the SEC.
FPL Group includes summarized financial information relating to FPL Group
Capital in some of its reports filed with the SEC. FPL Group does not intend to
include any separate financial information with respect to FPL Group Capital in
its consolidated financial statements because FPL Group and FPL Group Capital
have determined that this information is not material to the holders of these
debt securities.
INCORPORATION BY REFERENCE
The SEC allows FPL Group Capital and FPL Group to "incorporate by
reference" the information that FPL Group files with the SEC, which means that
FPL Group Capital and FPL Group may, in this prospectus, disclose important
information to you by referring you to those documents. The information
incorporated by reference is an important part of this prospectus. Information
that FPL Group files in the future with the SEC will automatically update and
supersede this information. FPL Group Capital and FPL Group are incorporating by
reference the documents listed below and any future filings FPL Group makes with
the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934, until FPL Group Capital sells all of these debt securities.
(1) FPL Group's Annual Report on Form 10-K for the year ended December 31,
1998.
(2) FPL Group's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1999 and June 30, 1999.
(3) FPL Group's Current Reports on Form 8-K, filed with the SEC on March
17, 1999, April 16, 1999 and July 20, 1999.
You may request a copy of these documents, at no cost to you, by writing or
calling Robert J. Reger, Jr., Esq., Thelen Reid & Priest LLP, 40 West 57th
Street, New York, New York, 10019, (212) 603-2000.
SAFE HARBOR STATEMENT UNDER
THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995
In connection with the safe harbor provisions of the Private Securities
Litigation Reform Act of 1995, FPL Group and FPL Group Capital are hereby filing
cautionary statements identifying important factors that could cause FPL Group's
and FPL Group Capital's actual results to differ materially from those projected
in forward-looking statements (as that term is defined in the Private Securities
Litigation Reform Act of 1995) made by or on behalf of FPL Group or FPL Group
Capital which are made in this prospectus or any supplement to this prospectus,
in presentations, in response to questions or otherwise. Any statements that
express, or involve discussions as to, expectations, beliefs, plans, objectives,
assumptions or future events or performance (often, but not always, through the
use of words or phrases such as "will likely result", "are expected to", "will
continue", "is anticipated", "estimated", "projection" or "outlook") are not
statements of historical facts and may be forward-looking. Forward-looking
statements involve estimates, assumptions and uncertainties that could cause
actual results to differ materially from those expressed in the forward-looking
statements. Accordingly, any of those statements are qualified in their entirety
by reference to, and are accompanied by, the following important factors that
could cause FPL Group's or FPL Group Capital's actual results to differ
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materially from those contained in forward-looking statements made by or on
behalf of FPL Group or FPL Group Capital.
Any forward-looking statement speaks only as of the date on which that
statement is made, and neither FPL Group nor FPL Group Capital undertakes any
obligation to update any forward-looking statement to reflect events or
circumstances after the date on which that statement is made or to reflect the
occurrence of unanticipated events. New factors emerge from time to time, and it
is not possible for management to predict all of those factors, nor can it
assess the impact of each of those factors on the business or the extent to
which any factor, or combination of factors, may cause actual results to differ
materially from those contained in any forward-looking statement.
Some important factors that could cause actual results or outcomes to
differ materially from those discussed in the forward-looking statements include
changing governmental policies and regulatory actions, including those of the
Federal Energy Regulatory Commission, the Florida Public Service Commission and
the Nuclear Regulatory Commission, with respect to:
(1) allowed rates of return, including return on common equity,
(2) industry and rate structure,
(3) operation of nuclear power facilities,
(4) acquisition and disposal of assets and facilities,
(5) operation and construction of plant facilities,
(6) recovery of fuel and purchased power costs,
(7) decommissioning costs, and
(8) present or prospective wholesale and retail competition, including
retail wheeling and transmission costs.
The business and profitability of FPL Group and FPL Group Capital are also
influenced by economic and geographic factors including:
(1) political and economic risks,
(2) changes in and compliance with environmental and safety laws and
policies,
(3) weather conditions, including natural disasters such as hurricanes,
(4) population growth rates and demographic patterns,
(5) competition for retail and wholesale customers,
(6) pricing and transportation of commodities,
(7) market demand for energy from generating plants or facilities,
(8) changes in tax rates or policies or in rates of inflation,
(9) unanticipated delays or changes in costs for capital projects,
(10) unanticipated changes in operating expenses and capital expenditures,
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(11) capital market conditions,
(12) competition for new energy development opportunities,
(13) legal and administrative proceedings, whether civil, such as
environmental, or criminal, and settlements, and
(14) any unanticipated impact of the year 2000 computer problem, including
delays or changes in cost of year 2000 compliance, or the failure of
major suppliers, customers and others with whom FPL Group or FPL Group
Capital does business to resolve their own year 2000 issues on a
timely basis.
All of these factors are difficult to predict, contain uncertainties which
may materially affect actual results, and are beyond the control of FPL Group
and FPL Group Capital.
FPL GROUP CAPITAL
FPL Group Capital was incorporated in 1985 as a Florida corporation and is
a wholly-owned subsidiary of FPL Group. FPL Group Capital holds the capital
stock of, and provides funding for, FPL Group's operating subsidiaries other
than Florida Power & Light Company. FPL Group Capital's business activities
primarily consist of independent power projects.
FPL GROUP
FPL Group is a holding company incorporated in 1984 as a Florida
corporation. FPL Group's principal subsidiary, Florida Power & Light Company, is
engaged in the generation, transmission, distribution and sale of electric
energy. Other operations are conducted through FPL Group Capital.
USE OF PROCEEDS
Unless otherwise stated in a prospectus supplement, FPL Group Capital will
add the net proceeds from the sale of these debt securities to its general
funds. FPL Group Capital uses its general funds for corporate purposes,
including to repay short-term borrowings and to redeem or repurchase outstanding
long-term debt obligations. FPL Group Capital will temporarily invest any
proceeds that it does not need to use immediately in short-term instruments.
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CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
The following table shows FPL Group's consolidated ratio of earnings to
fixed charges for each of its last five fiscal years:
Years ended December 31,
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1998 1997 1996 1995 1994
---- ---- ---- ---- ----
3.88 4.09 4.20 3.97 3.54
FPL Group's consolidated ratio of earnings to fixed charges for the six
months ended June 30, 1999 was 4.77.
DESCRIPTION OF OFFERED DEBT SECURITIES
GENERAL. FPL Group Capital will issue these debt securities, in one or more
series, under an Indenture, dated as of June 1, 1999, between FPL Group Capital
and The Bank of New York, as Trustee. This Indenture, as it may be amended and
supplemented from time to time, is referred to in this prospectus as the
"Indenture." The Bank of New York, as Trustee under the Indenture, is referred
to in this prospectus as the "Indenture Trustee." These debt securities are
referred to in this prospectus as the "Offered Debt Securities."
The Indenture provides for the issuance of debentures, notes or other debt
by FPL Group Capital in an unlimited amount from time to time. The Offered Debt
Securities and all other debentures, notes or other debt of FPL Group Capital
issued under the Indenture are collectively referred to in this prospectus as
the "Debt Securities."
This section briefly summarizes some of the terms of the Offered Debt
Securities and some of the provisions of the Indenture and uses some terms that
are not defined in this prospectus but that are defined in the Indenture. This
summary does not contain a complete description of the Offered Debt Securities.
You should read this summary together with the Indenture and the officer's
certificates or other documents establishing the Offered Debt Securities for a
complete understanding of the provisions that may be important to you and for
the definitions of some terms used in this summary. The Indenture, the form of
officer's certificate that may be used to establish a series of Offered Debt
Securities and a form of Offered Debt Securities are on file with the SEC and
are incorporated by reference in this prospectus. In addition, the Indenture is
subject to the provisions of the Trust Indenture Act of 1939. You should read
the Trust Indenture Act for a complete understanding of provisions that may be
important to you.
Each series of Offered Debt Securities will have different terms. FPL Group
Capital will include all of the following information about a specific series of
Offered Debt Securities in the prospectus supplement(s) relating to those
Offered Debt Securities:
(1) the title of those Offered Debt Securities;
(2) any limit upon the aggregate principal amount of those Offered Debt
Securities;
(3) the date(s) on which FPL Group Capital will pay the principal of those
Offered Debt Securities;
(4) the rate(s) of interest on those Offered Debt Securities, or how the
rate(s) of interest will be determined, the date(s) from which
interest will accrue, the dates on which FPL Group Capital will pay
interest and the record date for any interest payable on any interest
payment date;
(5) the person to whom FPL Group Capital will pay interest on those
Offered Debt Securities on any interest payment date, if other than
the person in whose names those Offered Debt Securities are registered
at the close of business on the record date for that interest payment;
(6) the place(s) at which or methods by which FPL Group Capital will make
payments on those Offered Debt Securities and the place(s) at which or
methods by which the registered owners of those Offered Debt
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Securities may transfer or exchange those Offered Debt Securities and
serve notices and demands to or upon FPL Group Capital;
(7) the Security Registrar and any Paying Agent or Agents for those
Offered Debt Securities;
(8) any date(s) on which the price(s) at which and the terms and
conditions upon which FPL Group Capital may, at its option, redeem
those Offered Debt Securities, in whole or in part, and any
restrictions on those redemptions;
(9) any sinking fund or other provisions or options held by the registered
owners of those Offered Debt Securities that would obligate FPL Group
Capital to repurchase or redeem those Offered Debt Securities;
(10) the denominations in which FPL Group Capital may issue those Offered
Debt Securities, if other than denominations of $1,000 and any
integral multiple of $1,000;
(11) the currency or currencies in which FPL Group Capital may pay the
principal of or premium or interest on those Offered Debt Securities
(if other than in U.S. dollars);
(12) if FPL Group Capital or a registered owner may elect to make, or
receive, principal of or premium or interest on that Offered Debt
Security in a currency other than that in which that Offered Debt
Security is stated to be payable, the terms and conditions upon which
that election may be made;
(13) if FPL Group Capital will, or may, pay the principal of or premium or
interest on those Offered Debt Securities in securities or other
property, the type and amount of those securities or other property
and the terms and conditions upon which FPL Group Capital or a
registered owner may elect to receive those payments;
(14) if the amount payable in respect of principal of or premium or
interest on those Offered Debt Securities may be determined by
reference to an index or other fact or event ascertainable outside of
the Indenture, the manner in which those amounts will be determined;
(15) the portion of the principal amount of those Offered Debt Securities
that FPL Group Capital will pay upon declaration of acceleration of
the maturity of those Offered Debt Securities, if other than the
entire principal amount of those Offered Debt Securities;
(16) any events of default with respect to those Offered Debt Securities
and any covenants of FPL Group Capital for the benefit of the
registered owners of those Offered Debt Securities, other than those
specified in the Indenture;
(17) the terms, if any, pursuant to which those Offered Debt Securities may
be converted into or exchanged for shares of capital stock or other
securities of FPL Group Capital or any other entity;
(18) a definition of "Eligible Obligations" under the Indenture with
respect to those Offered Debt Securities denominated in a currency
other than U.S. dollars, and any other provisions for the
reinstatement of FPL Group Capital's indebtedness in respect of those
Offered Debt Securities after their satisfaction and discharge;
(19) if FPL Group Capital will issue those Offered Debt Securities in
global form, necessary information relating to the issuance of those
Offered Debt Securities in global form;
(20) if FPL Group Capital will issue those Offered Debt Securities as
bearer securities, necessary information relating to the issuance of
those Offered Debt Securities as bearer securities;
(21) any limits on the rights of the registered owners of those Offered
Debt Securities to transfer or exchange those Offered Debt Securities
or to register their transfer, and any related service charges;
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(22) any exceptions to the provisions governing payments due on legal
holidays or any variations in the definition of Business Day with
respect to those Offered Debt Securities;
(23) other than the Guarantee described under "Description of the
Guarantee" below, any collateral security, assurance, or guarantee for
those Offered Debt Securities; and
(24) any other terms of those Offered Debt Securities that are not
inconsistent with the provisions of the Indenture (Indenture, Section
301).
FPL Group Capital may sell Offered Debt Securities at a discount below
their principal amount. Some of the important United States Federal income tax
considerations applicable to Offered Debt Securities sold at a discount below
their principal amount may be described in the related prospectus supplement. In
addition, some of the important United States Federal income tax or other
considerations applicable to any Offered Debt Securities that are denominated in
a currency other than U.S. dollars may be described in the related prospectus
supplement.
Except as otherwise stated in the related prospectus supplement, the
covenants in the Indenture would not give registered owners of Offered Debt
Securities protection in the event of a highly-leveraged transaction involving
FPL Group Capital.
SECURITY AND RANKING. The Offered Debt Securities will be unsecured
obligations of FPL Group Capital. The Indenture does not limit FPL Group
Capital's ability to provide security with respect to other Debt Securities. All
Debt Securities issued under the Indenture will rank equally and ratably with
all other Debt Securities issued under the Indenture, except to the extent that
FPL Group Capital elects to provide security with respect to any Debt Security
without providing that security to all outstanding Debt Securities as allowed
under the Indenture. The Indenture does not limit FPL Group Capital's ability to
issue other unsecured debt.
FPL Group Capital is a holding company that derives substantially all of
its income from its subsidiaries. The Debt Securities therefore will be
effectively subordinated to debt and preferred stock issued by those
subsidiaries. The Indenture does not limit the amount of debt and preferred
stock issuable by FPL Group Capital's subsidiaries.
PAYMENT AND PAYING AGENTS. Except as stated in the related prospectus
supplement, on each interest payment date FPL Group Capital will pay interest on
each Offered Debt Security to the person in whose name that Offered Debt
Security is registered as of the close of business on the record date relating
to that interest payment date. However, on the date that the Offered Debt
Securities mature, FPL Group Capital will pay the interest to the person to whom
it pays the principal. Also, if FPL Group Capital has defaulted in the payment
of interest on any Offered Debt Security, it may pay that defaulted interest to
the registered owner of that Offered Debt Security:
(1) as of the close of business on a date that the Indenture Trustee
selects, which may not be more than 15 days or less than 10 days
before the date that FPL Group Capital proposes to pay the defaulted
interest, or
(2) in any other lawful manner that does not violate the requirements of
any securities exchange on which that Offered Debt Security is listed
and that the Indenture Trustee believes is acceptable (Indenture,
Section 307).
Unless otherwise stated in the related prospectus supplement, at the
maturity of a series of Offered Debt Securities, FPL Group Capital will pay
their principal and any premium and interest when they are presented at the main
corporate trust office of The Bank of New York, as Paying Agent, in The City of
New York. FPL Group Capital may change the place of payment on the Offered Debt
Securities, appoint one or more additional Paying Agents, including itself, and
remove any Paying Agent (Indenture, Section 602).
TRANSFER AND EXCHANGE. Unless otherwise stated in the related prospectus
supplement, Offered Debt Securities may be transferred or exchanged at the main
corporate trust office of The Bank of New York, as Security Registrar, in The
City of New York. FPL Group Capital may change the place for transfer and
exchange of the Offered Debt Securities and may designate one or more additional
places for that transfer and exchange.
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Except as otherwise stated in the related prospectus supplement, there will
not be any service charge for any transfer or exchange of the Offered Debt
Securities. However, FPL Group Capital may require payment of any tax or other
governmental charge in connection with any transfer or exchange of the Offered
Debt Securities.
FPL Group Capital will not be required to transfer or exchange any Offered
Debt Security selected for redemption. Also, FPL Group Capital will not be
required to transfer or exchange any Offered Debt Security during a period of 15
days before selection of Offered Debt Securities to be redeemed (Indenture,
Section 305).
DEFEASANCE. FPL Group Capital may, at any time, elect to have all of its
obligations discharged with respect to all or a portion of any Debt Securities.
To do so, FPL Group Capital must irrevocably deposit with the Indenture Trustee
or any Paying Agent, in trust:
(1) money in an amount that will be sufficient to pay all or that portion
of the principal, premium and interest due and to become due on those
Debt Securities, on or prior to their maturity, or
(2) in the case of a deposit made prior to the maturity of that series of
Debt Securities,
(a) direct obligations of, or obligations unconditionally guaranteed
by, the United States and entitled to the benefit of its full
faith and credit that do not contain provisions permitting their
redemption or other prepayment at the option of their issuer, and
(b) certificates, depositary receipts or other instruments that
evidence a direct ownership interest in those obligations or in
any specific interest or principal payments due in respect of
those obligations that do not contain provisions permitting their
redemption or other prepayment at the option of their issuer,
the principal of and the interest on which, when due, without any regard to
reinvestment of that principal or interest, will provide money that,
together with any money deposited with or held by the Indenture Trustee,
will be sufficient to pay all or that portion of the principal, premium and
interest due and to become due on those Debt Securities, on or prior to
their maturity, or
(3) a combination of (1) and (2) that will be sufficient to pay all or
that portion of the principal, premium and interest due and to become
due on those Debt Securities, on or prior to their maturity
(Indenture, Section 701).
LIMITATION ON LIENS. So long as any Debt Securities remain outstanding, FPL
Group Capital will not secure any indebtedness with a lien on any shares of the
capital stock of any of its majority-owned subsidiaries, which shares of capital
stock FPL Group Capital now or hereafter directly owns, unless FPL Group Capital
equally secures all Debt Securities. However, this restriction does not apply to
or prevent:
(1) any lien on capital stock created at the time FPL Group Capital
acquires that capital stock, or within 270 days after that time, to
secure all or a portion of the purchase price for that capital stock;
(2) any lien on capital stock existing at the time FPL Group Capital
acquires that capital stock (whether or not FPL Group Capital assumes
the obligations secured by the lien and whether or not the lien was
created in contemplation of the acquisition);
(3) any extensions, renewals or replacements of the liens described in (1)
and (2) above, or of any indebtedness secured by those liens;
provided, that,
(a) the principal amount of indebtedness secured by those liens
immediately after the extension, renewal or replacement may not
exceed the principal amount of indebtedness secured by those
liens immediately before the extension, renewal or replacement,
and
(b) the extension, renewal or replacement lien is limited to no more
than the same proportion of all shares of capital stock as were
covered by the lien that was extended, renewed or replaced; or
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(4) any lien arising in connection with court proceedings; provided, that,
either
(a) the execution or enforcement of that lien is effectively stayed
within 30 days after entry of the corresponding judgment (or the
corresponding judgment has been discharged within that 30 day
period) and the claims secured by that lien are being contested
in good faith by appropriate proceedings;
(b) the payment of that lien is covered in full by insurance and the
insurance company has not denied or contested coverage; or
(c) so long as that lien is adequately bonded, any appropriate legal
proceedings that have been duly initiated for the review of the
corresponding judgement, decree or order have not been fully
terminated or the periods within which those proceedings may be
initiated have not expired.
Liens on any shares of the capital stock of any of FPL Group Capital's
majority-owned subsidiaries, which shares of capital stock FPL Group Capital now
or hereafter directly owns, other than liens described in (1) through (4) above,
are referred to in this prospectus as "Restricted Liens." The foregoing
limitation does not apply to the extent that FPL Group Capital creates any
Restricted Liens to secure indebtedness that, together with all other
indebtedness of FPL Group Capital secured by Restricted Liens, does not at the
time exceed 5% of FPL Group Capital's Consolidated Capitalization (Indenture,
Section 608).
The foregoing limitation does not limit in any manner the ability of:
(1) FPL Group Capital to place liens on any of its assets other than
the capital stock of directly held, majority-owned subsidiaries;
(2) FPL Group Capital or FPL Group to cause the transfer of its
assets or those of its subsidiaries, including the capital stock
covered by the foregoing restrictions;
(3) FPL Group to place liens on any of its assets; or
(4) any of the direct or indirect subsidiaries of FPL Group Capital
or FPL Group (other than FPL Group Capital) to place liens on any
of their assets.
CONSOLIDATION, MERGER, AND SALE OF ASSETS. Under the Indenture, FPL Group
Capital may not consolidate with or merge into any other entity or convey,
transfer or lease its properties and assets substantially as an entirety to any
entity, unless:
(1) the entity formed by that consolidation, or the entity into which
FPL Group Capital is merged, or the entity that acquires or
leases FPL Group Capital's property and assets, is a entity
organized and existing under the laws of the United States, any
State or the District of Columbia and that entity expressly
assumes FPL Group Capital's obligations on all Debt Securities
and under the Indenture;
(2) immediately after giving effect to the transaction, no event of
default under the Indenture and no event that, after notice or
lapse of time or both, would become an event of default under the
Indenture exists; and
(3) FPL Group Capital delivers an officer's certificate and an
opinion of counsel to the Indenture Trustee, as provided in the
Indenture (Indenture, Section 1101).
The Indenture does not restrict FPL Group Capital in a merger in which FPL
Group Capital is the surviving entity.
EVENTS OF DEFAULT. Each of the following is an event of default under the
Indenture with respect to the Debt Securities of any series:
(1) failure to pay interest on the Debt Securities of that series
within 30 days after it is due;
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(2) failure to pay principal or premium, if any, on the Debt
Securities of that series when it is due;
(3) failure to comply with any other covenant in the Indenture, other
than a covenant that does not relate to that series of Debt
Securities, that continues for 90 days after FPL Group Capital
receives written notice from the Indenture Trustee or FPL Group
Capital and the Indenture Trustee receive written notice from the
registered owners of at least 33% in principal amount of the Debt
Securities of that series;
(4) certain events of bankruptcy, insolvency or reorganization of FPL
Group Capital;
(5) any other event of default specified with respect to the Debt
Securities of that series (Indenture, Section 801).
An event of default with respect to the Debt Securities of a particular
series will not necessarily constitute an event of default with respect to Debt
Securities of any other series issued under the Indenture.
REMEDIES. If an event of default applicable to the Debt Securities of one
or more series, but not applicable to all outstanding Debt Securities, exists,
then either the Indenture Trustee or the registered owners of at least 33% in
aggregate principal amount of the Debt Securities of each of those series may
declare the principal of and interest on all the Debt Securities of that series
to be due and payable immediately. However, under the Indenture, some Debt
Securities may provide for a specified amount less than their entire principal
amount to be due and payable upon that declaration. These Debt Securities are
defined as "Discount Securities" in the Indenture.
If the event of default is applicable to all outstanding Debt Securities,
then only the Indenture Trustee or the registered owners of at least 33% in
aggregate principal amount of all outstanding Debt Securities of all series,
voting as one class, and not the registered owners of any one series, may make a
declaration of acceleration. However, the event of default giving rise to the
declaration relating to any series of Debt Securities will be automatically
waived, and that declaration and its consequences will be automatically
rescinded and annulled, if, at any time after that declaration and before a
judgment or decree for payment of the money due has been obtained:
(1) FPL Group Capital deposits with the Indenture Trustee a sum
sufficient to pay:
(a) all overdue interest on all Debt Securities of that series;
(b) the principal of and any premium on any Debt Securities of
that series that have become due for reasons other than that
declaration, and interest that is then due;
(c) interest on overdue interest for that series; and
(d) all amounts due to the Indenture Trustee under the
Indenture; and
(2) any other event of default with respect to the Debt Securities of
that series has been cured or waived as provided in the Indenture
(Indenture, Section 802).
Other than its obligations and duties in case of an event of default under
the Indenture, the Indenture Trustee is not obligated to exercise any of its
rights or powers under the Indenture at the request or direction of any of the
registered owners, unless those registered owners offer reasonable indemnity to
the Indenture Trustee (Indenture, Section 903). If they provide this reasonable
indemnity, the registered owners of a majority in principal amount of any series
of Debt Securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee, or
exercising any trust or power conferred on the Indenture Trustee, with respect
to the Debt Securities of that series. However, if an event of default under the
Indenture relates to more than one series of Debt Securities, only the
registered owners of a majority in aggregate principal amount of all affected
series of Debt Securities, considered as one class, will have the right to make
that direction. Also, the direction must not violate any law or the Indenture,
and may not expose the Indenture Trustee to personal liability in circumstances
where its indemnity would not, in the Indenture Trustee's sole discretion, be
adequate (Indenture, Section 812).
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No registered owner of Debt Securities of any series will have any right to
institute any proceeding under the Indenture, or any remedy under the Indenture,
unless:
(1) that registered owner has previously given to the Indenture
Trustee written notice of a continuing event of default with
respect to the Debt Securities of that series;
(2) the registered owners of a majority in aggregate principal amount
of the outstanding Debt Securities of all series in respect of
which an event of default under the Indenture exists, considered
as one class, have made written request to the Indenture Trustee,
and have offered reasonable indemnity to the Indenture Trustee to
institute that proceeding in its own name as trustee; and
(3) the Indenture Trustee has failed to institute any proceeding, and
has not received from the registered owners of a majority in
aggregate principal amount of the outstanding Debt Securities of
that series a direction inconsistent with that request, within 60
days after that notice, request and offer (Indenture, Section
807).
However, these limitations do not apply to a suit instituted by a registered
owner of a Debt Security for the enforcement of payment of the principal of or
any premium or interest on that Debt Security on or after the applicable due
date specified in that Debt Security (Indenture, Section 808).
FPL Group Capital is required to deliver to the Indenture Trustee an annual
statement as to its compliance with all conditions and covenants under the
Indenture (Indenture, Section 606).
MODIFICATION AND WAIVER. Without the consent of any registered owner of
Debt Securities, FPL Group Capital and the Indenture Trustee may amend or
supplement the Indenture for any of the following purposes:
(1) to provide for the assumption by any permitted successor to FPL
Group Capital of FPL Group Capital's obligations under the
Indenture and the Debt Securities in the case of a merger or
consolidation or a sale of its assets;
(2) to add covenants of FPL Group Capital or to surrender any right
or power conferred upon FPL Group Capital by the Indenture;
(3) to add any additional events of default;
(4) to change, eliminate or add any provision of the Indenture,
provided that if that change, elimination or addition will
materially adversely affect the interests of the registered
owners of Debt Securities of any series or Tranche, that change,
elimination or addition will become effective with respect to
that series or Tranche only
(a) when the consent of the registered owners of Debt Securities
of that series or Tranche has been obtained, or
(b) when no Debt Securities of that series or Tranche remain
outstanding under the Indenture;
(5) to provide security for all but not part of the Debt Securities;
(6) to establish the form or terms of Debt Securities of any other
series or Tranche;
(7) to provide for the authentication and delivery of bearer
securities and the related coupons and for other matters relating
to those bearer securities;
(8) to accept the appointment of a successor Indenture Trustee with
respect to the Debt Securities of one or more series and to
change any of the provisions of the Indenture as necessary to
provide for the administration of the trusts under the Indenture
by more than one trustee;
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(9) to add procedures to permit the use of a non-certificated system
of registration for the Debt Securities of all or any series or
Tranche;
(10) to change any place where
(a) the principal of and premium and interest on all or any
series or Tranche of Debt Securities are payable,
(b) all or any series or Tranche of Debt Securities may be
transferred or exchanged, and
(c) notices and demands to or upon FPL Group Capital in respect
of Debt Securities and the Indenture may be served; or
(11) to cure any ambiguity or inconsistency or to add or change any
other provisions with respect to matters and questions arising
under the Indenture, provided those changes or additions may not
materially adversely affect the interests of the registered
owners of Debt Securities of any series or Tranche (Indenture,
Section 1201).
The registered owners of a majority in aggregate principal amount of the
Debt Securities of all series then outstanding may waive compliance by FPL Group
Capital with certain restrictive provisions of the Indenture (Indenture, Section
607). The registered owners of a majority in principal amount of the outstanding
Debt Securities of any series may waive any past default under the Indenture
with respect to that series, except a default in the payment of principal,
premium, or interest and a default with respect to certain restrictive covenants
or provisions of the Indenture that cannot be modified or amended without the
consent of the registered owner of each outstanding Debt Security of that series
affected (Indenture, Section 813).
In addition to any amendments described above, if the Trust Indenture Act
is amended after the date of the Indenture in a way that requires changes to the
Indenture or in a way that permits changes to, or the elimination of, provisions
that were previously required by the Trust Indenture Act, the Indenture will be
deemed to be amended to conform to that amendment of the Trust Indenture Act or
to make those changes, additions or eliminations. FPL Group Capital and the
Indenture Trustee may, without the consent of any registered owners, enter into
supplemental indentures to make that amendment (Indenture, Section 1201).
Except for any amendments described above, the consent of the registered
owners of a majority in aggregate principal amount of the Debt Securities of all
series then outstanding, considered as one class, is required for all other
modifications to the Indenture. However, if less than all of the series of Debt
Securities outstanding are directly affected by a proposed supplemental
indenture, then the consent only of the registered owners of a majority in
aggregate principal amount of outstanding Debt Securities of all directly
affected series, considered as one class, is required. But, if FPL Group Capital
issues any series of Debt Securities in more than one Tranche and if the
proposed supplemental indenture directly affects the rights of the registered
owners of Debt Securities of less than all of those Tranches, then the consent
only of the registered owners of a majority in aggregate principal amount of the
outstanding Debt Securities of all directly affected Tranches, considered as one
class, will be required. However, none of those amendments or modifications may:
(1) change the dates on which the principal of or interest on a Debt
Security is due without the consent of the registered owner of
that Debt Security;
(2) reduce any Debt Security's principal amount or rate of interest
(or the amount of any installment of that interest) or change the
method of calculating that rate without the consent of the
registered owner of that Debt Security;
(3) reduce any premium payable upon the redemption of a Debt Security
without the consent of the registered owner of that Debt
Security;
(4) change the currency (or other property) in which a Debt Security
is payable without the consent of the registered owner of that
Debt Security;
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(5) impair the right to sue to enforce payments on any Debt Security
on or after the date that it states that the payment is due (or,
in the case of redemption, on or after the redemption date)
without the consent of the registered owner of that Debt
Security;
(6) reduce the percentage in principal amount of the outstanding Debt
Security of any series or Tranche whose owners must consent to an
amendment, supplement or waiver without the consent of the
registered owner of each outstanding Debt Security of that series
or Tranche;
(7) reduce the requirements for quorum or voting without the consent
of the registered owner of each outstanding Debt Security of that
series or Tranche; or
(8) modify certain of the provisions of the Indenture relating to
supplemental indentures, waivers of certain covenants and waivers
of past defaults with respect to the Debt Securities of any
series or Tranche, without the consent of the registered owner of
each outstanding Debt Security affected by the modification.
A supplemental indenture that changes or eliminates any provision of the
Indenture that has expressly been included only for the benefit of one or more
particular series or Tranches of Debt Securities, or that modifies the rights of
the registered owners of Debt Securities of that series or Tranche with respect
to that provision, will not affect the rights under the Indenture of the
registered owners of the Debt Securities of any other series or Tranche
(Indenture, Section 1201).
The Indenture provides that, in order to determine whether the registered
owners of the required principal amount of the outstanding Debt Securities have
given any request, demand, authorization, direction, notice, consent or waiver
under the Indenture, or whether a quorum is present at the meeting of the
registered owners of Debt Securities, Debt Securities owned by FPL Group Capital
or any other obligor upon the Debt Securities or any affiliate of FPL Group
Capital or of that other obligor (unless FPL Group Capital, that affiliate or
that obligor owns all Debt Securities outstanding under the Indenture,
determined without regard to this provision) will be disregarded and deemed not
to be outstanding.
If FPL Group Capital solicits any action under the Indenture from
registered owners of Debt Securities, FPL Group Capital may, at its option, by
signing a written request to the Indenture Trustee, fix in advance a record date
for determining the registered owners of Debt Securities entitled to take that
action. However, FPL Group Capital will not be obligated to do this. If FPL
Group Capital does do this, that action may be taken before or after that record
date, but only the registered owners of record at the close of business on that
record date will be deemed to be registered owners of Debt Securities for the
purposes of determining whether registered owners of the required proportion of
the outstanding Debt Securities have authorized that action. For these purposes
the outstanding Debt Securities will be computed as of the record date. Any
action of a registered owner of any Debt Security under the Indenture will bind
every future registered owner of that Debt Security, or any Debt Security
replacing that Debt Security, with respect to anything that the Indenture
Trustee or FPL Group Capital do, fail to do, or allow to be done in reliance on
that action, whether or not that action is noted upon that Debt Security
(Indenture, Section 104).
RESIGNATION OF INDENTURE TRUSTEE. The Indenture Trustee may resign at any
time with respect to any series of Debt Securities by giving written notice of
its resignation to FPL Group Capital. Also, the registered owners of a majority
in principal amount of the outstanding Debt Securities of one or more series of
Debt Securities may remove the Indenture Trustee any time with respect to the
Debt Securities of that series, by delivering an instrument evidencing this
action to the Indenture Trustee and FPL Group Capital. The resignation or
removal of the Indenture Trustee and the appointment of a successor trustee will
not become effective until a successor trustee accepts its appointment.
Except with respect to an Indenture Trustee appointed by the registered
owners of Debt Securities, the Indenture Trustee will be deemed to have resigned
and the successor will be deemed to have been appointed as trustee in accordance
with the Indenture if:
(1) no event of default under the Indenture or event that, after
notice or lapse of time, or both, would become an event of
default under the Indenture exists; and
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(2) FPL Group Capital has delivered to the Indenture Trustee a
resolution of its Board of Directors appointing a successor
trustee and that successor has accepted that appointment in
accordance with the terms of the Indenture (Indenture, Section
910).
NOTICES. Notices to registered owners of Debt Securities will be sent by
mail to the addresses of those registered owners as they appear in the security
register for those Debt Securities.
TITLE. FPL Group Capital, the Indenture Trustee, and any agent of FPL Group
Capital or the Indenture Trustee, may treat the person in whose name a Debt
Security is registered as the absolute owner of that Debt Security, whether or
not that Debt Security is overdue, for the purpose of making payments and for
all other purposes, regardless of any notice to the contrary.
GOVERNING LAW. The Indenture and the Debt Securities will be governed by,
and interpreted in accordance with, the laws of the State of New York, without
regard to New York's conflict of law principles, except to the extent that the
law of any other jurisdiction is mandatorily applicable.
REGARDING THE INDENTURE TRUSTEE. In addition to acting as Indenture
Trustee, The Bank of New York acts as Security Registrar and Paying Agent under
the Indenture and as Guarantee Trustee under the Guarantee Agreement described
under "Description of the Guarantee" below. FPL Group Capital also maintains
various banking and trust relationships with The Bank of New York.
SUPPORT AGREEMENT. FPL Group Capital and FPL Group entered into a Support
Agreement dated as of December 18, 1985. The registered owners of the Offered
Debt Securities are not entitled to enforce the covenants and agreements
contained in the Support Agreement. The Support Agreement may be modified or
terminated at any time without the consent of those registered owners.
DESCRIPTION OF THE GUARANTEE
GENERAL. This section briefly summarizes some of the provisions of the
Guarantee Agreement, dated as of June 1, 1999, between FPL Group and The Bank of
New York, as Guarantee Trustee. The Guarantee Agreement was executed for the
benefit of the Indenture Trustee, which holds the Guarantee Agreement for the
benefit of registered owners of the Debt Securities covered by the Guarantee
Agreement. This summary does not contain a complete description of the Guarantee
Agreement. You should read this summary together with the Guarantee Agreement
for a complete understanding of the provisions that may be important to you and
for the definitions of some terms used in this summary that are not defined in
this prospectus but are defined in the Guarantee Agreement. The Guarantee
Agreement is on file with the SEC and is incorporated by reference in this
prospectus. In addition, the Guarantee Agreement is qualified as an indenture
under the Trust Indenture Act and is therefore subject to the provisions of the
Trust Indenture Act. You should read the Trust Indenture Act for a complete
understanding of provisions that may be important to you.
Under the Guarantee Agreement, FPL Group absolutely, irrevocably and
unconditionally guarantees the prompt and full payment, when due and payable
(including upon acceleration or redemption), of the principal, interest and
premium on the Debt Securities that are covered by the Guarantee Agreement to
the registered owners of those Debt Securities, according to the terms of those
Debt Securities and the Indenture. All of the Offered Debt Securities will be
covered by the Guarantee Agreement. This guarantee is referred to in this
prospectus as the "Guarantee." FPL Group is only required to make these payments
if FPL Group Capital fails to pay or provide for punctual payment of any of
those amounts on or before the expiration of any applicable grace periods. In
the Guarantee Agreement, FPL Group has waived its right to require the Guarantee
Trustee, the Indenture Trustee or the registered owners of Debt Securities
covered by the Guarantee Agreement to exhaust their remedies against FPL Group
Capital prior to bringing suit against FPL Group.
The Guarantee is a guarantee of payment when due (i.e., the guaranteed
party may institute a legal proceeding directly against FPL Group to enforce its
rights under the Guarantee Agreement without first instituting a legal
proceeding against any other person or entity). The Guarantee is not a guarantee
of collection.
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SECURITY AND RANKING. The Guarantee is an unsecured obligation of FPL
Group, and will rank equally with all other unsecured and unsubordinated
indebtedness of FPL Group. There is no limit on the amount of other
indebtedness, including guarantees, that FPL Group may issue.
FPL Group is a holding company that derives substantially all of its income
from its operating subsidiaries. Therefore, the Guarantee is effectively
subordinated to debt and preferred stock issued by FPL Group's subsidiaries.
Neither the Indenture nor the Guarantee Agreement places any limit on the amount
of debt or preferred stock that FPL Group's subsidiaries may issue.
EVENTS OF DEFAULT. An event of default under the Guarantee Agreement will
occur upon the failure of FPL Group to perform any of its payment obligations
under the Guarantee Agreement. The registered owners of a majority of the
aggregate principal amount of the Debt Securities covered by the Guarantee
Agreement have the right to
(1) direct the time, method and place of conducting any proceeding for any
remedy available to the Guarantee Trustee with respect to the
Guarantee Agreement; or
(2) direct the exercise of any trust or power conferred upon the Guarantee
Trustee under the Guarantee Agreement.
The Guarantee Trustee must give notice of all defaults known to the
Guarantee Trustee to the registered owners of Debt Securities covered by the
Guarantee Agreement within 90 days after the occurrence of that default, in the
manner and to the extent provided in subsection (c) of Section 313 of the Trust
Indenture Act.
The Guarantee Trustee, the Indenture Trustee and the registered owners of
Offered Debt Securities covered by the Guarantee Agreement have all of the
rights and remedies available under applicable law and may sue to enforce the
terms of the Guarantee Agreement and to recover damages for the breach of the
Guarantee Agreement. The remedies of each of the Guarantee Trustee, the
Indenture Trustee and the registered owners of Debt Securities covered by the
Guarantee Agreement, to the extent permitted by law, are cumulative and in
addition to any other remedy now or hereafter existing at law or in equity. At
the option of each of the Guarantee Trustee, the Indenture Trustee or the
registered owners of Debt Securities covered by the Guarantee Agreement, that
person or entity may join the Guarantor in any lawsuit commenced by that person
or entity against FPL Group Capital with respect to any obligations under the
Guarantee Agreement. Also, that person or entity may recover against the
Guarantor in that lawsuit, or in any independent lawsuit against the Guarantor,
without first asserting, prosecuting or exhausting any remedy or claim against
FPL Group Capital.
FPL Group is required to deliver to the Guarantee Trustee an annual
statement as to its compliance with all conditions under the Guarantee
Agreement.
MODIFICATION. The Guarantor and the Guarantee Trustee may, without the
consent of any registered owner of Debt Securities, agree to any changes to the
Guarantee Agreement that add additional debt securities to the Guarantee
Agreement or that do not materially adversely affect the rights of registered
owners. The Guarantee Agreement may be amended with the prior approval of the
registered owners of a majority in aggregate principal amount of all Debt
Securities covered by the Guarantee Agreement. However, the right of any
registered owner of Debt Securities to receive payment under the Guarantee
Agreement on the due date of the Debt Securities held by that registered owner,
or to institute suit for the enforcement of that payment on or after that due
date, may not be impaired or affected without the consent of that registered
owner.
REGARDING THE GUARANTEE TRUSTEE. The Guarantee Trustee, prior to the
occurrence of a default by FPL Group in performance of the Guarantee Agreement,
will undertake to perform only those duties as are specifically set forth in the
Guarantee Agreement and, after default with respect to the Guarantee Agreement,
must exercise the same degree of care as a prudent individual would exercise in
the conduct of his or her own affairs.
TERMINATION OF THE GUARANTEE AGREEMENT. The Guarantee Agreement will
terminate and be of no further force and effect upon full payment of all Debt
Securities covered by the Guarantee Agreement.
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GOVERNING LAW. The Guarantee Agreement will be governed by and construed in
accordance with the laws of the State of New York, without regard to conflict of
laws principles thereunder, except to the extent that the law of any other
jurisdiction is mandatorily applicable.
PLAN OF DISTRIBUTION
FPL Group Capital may sell the Offered Debt Securities:
(1) through underwriters or dealers;
(2) through agents; or
(3) directly to one or more purchasers.
THROUGH UNDERWRITERS OR DEALERS. If FPL Group Capital uses underwriters in
the sale, the underwriters will acquire the Offered Debt Securities for their
own account. The underwriters may resell the Offered Debt Securities in one or
more transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. The underwriters may
sell the Offered Debt Securities directly or through underwriting syndicates
represented by managing underwriters. Unless otherwise stated in the prospectus
supplement relating to Offered Debt Securities, the obligations of the
underwriters to purchase those Offered Debt Securities will be subject to
certain conditions, and the underwriters will be obligated to purchase all of
those Offered Debt Securities if they purchase any of them. If FPL Group Capital
uses a dealer in the sale, FPL Group Capital will sell Offered Debt Securities
to the dealer as principal. The dealer may then resell those Offered Debt
Securities at varying prices determined at the time of resale.
Any initial public offering price and any discounts or concessions allowed
or reallowed or paid to dealers may be changed from time to time.
THROUGH AGENTS. FPL Group Capital may designate one or more agents to sell
Offered Debt Securities. Unless stated in a prospectus supplement, the agents
will agree to use their best efforts to solicit purchases for the period of
their appointment.
DIRECTLY. FPL Group Capital may sell Offered Debt Securities directly to
one or more purchasers. In this case, no underwriters or agents would be
involved.
GENERAL INFORMATION. A prospectus supplement will state the name of any
underwriter, dealer or agent and the amount of any compensation, underwriting
discounts or concessions paid, allowed or reallowed to them. A prospectus
supplement will also state the proceeds to FPL Group Capital from the sale of
Offered Debt Securities, any initial public offering price and other terms of
the offering of those Offered Debt Securities.
FPL Group Capital may authorize agents, underwriters or dealers to solicit
offers by certain institutions to purchase Offered Debt Securities from FPL
Group Capital at the public offering price and on terms described in the related
prospectus supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future.
FPL Group Capital and FPL Group may have agreements to indemnify agents,
underwriters and dealers against certain civil liabilities, including
liabilities under the Securities Act of 1933.
EXPERTS
The audited consolidated financial statements of FPL Group and subsidiaries
appearing in FPL Group's Annual Report on Form 10-K incorporated herein by
reference have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report included in said Annual Report on Form 10-K, which report
is incorporated herein by reference, and have been so incorporated in reliance
upon the report of such firm given upon their authority as experts in accounting
and auditing.
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Legal conclusions and opinions specifically attributed to counsel in the
documents incorporated by reference in this prospectus have been reviewed by
Steel Hector & Davis LLP, West Palm Beach, Florida, counsel to FPL Group, and
are set forth on the authority of that firm as experts.
LEGAL OPINIONS
Steel Hector & Davis LLP, West Palm Beach, Florida and Thelen Reid & Priest
LLP, New York, New York, co-counsel to FPL Group and FPL Group Capital, will
pass upon the legality of the Offered Debt Securities and the Guarantee for FPL
Group Capital and FPL Group. Winthrop, Stimson, Putnam & Roberts, New York, New
York will pass upon the legality of the Offered Debt Securities and the
Guarantee for any underwriter, dealer or agent. Thelen Reid & Priest LLP and
Winthrop, Stimson, Putnam & Roberts may rely as to all matters of Florida law
upon the opinion of Steel Hector & Davis LLP. Steel Hector & Davis LLP may rely
as to all matters of New York law on an opinion of Thelen Reid & Priest LLP.
-----------------------------------
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT. NEITHER FPL GROUP
CAPITAL NOR FPL GROUP HAS AUTHORIZED ANYONE ELSE TO PROVIDE YOU WITH DIFFERENT
INFORMATION. NEITHER FPL GROUP CAPITAL NOR FPL GROUP IS MAKING AN OFFER OF THESE
OFFERED DEBT SECURITIES IN ANY JURISDICTION WHERE THE OFFER IS NOT PERMITTED.
YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE FRONT OF THOSE
DOCUMENTS.
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PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the securities
being registered, other than underwriting and/or agents compensation, are:
Filing Fee for Registration Statement................................$ 139,000
Legal and Accounting Fees............................................$ 125,000*
Printing (S-3, Prospectus, Prospectus Supplement, etc.)..............$ 15,000*
Fees of the Trustees.................................................$ 10,000*
Rating Agencies' Fees................................................$ 75,000*
Miscellaneous........................................................$ 13,500*
Total..................................................$ 377,500*
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 607.0850 of the Florida Statutes generally permits each registrant
to indemnify its directors, officers, employees or other agents who are subject
to any third-party actions because of their service to the registrant if such
persons acted in good faith and in a manner they reasonably believed to be in,
or not opposed to, the best interests of the registrant. If the proceeding is a
criminal one, such person must also have had no reasonable cause to believe his
conduct was unlawful. In addition, each registrant may indemnify its directors,
officers, employees or other agents who are subject to derivative actions
against expenses and amounts paid in settlement which do not exceed, in the
judgment of the board of directors, the estimated expense of litigating the
proceeding to conclusion, actually and reasonably incurred in connection with
the defense or settlement of such proceeding, if such person acted in good faith
and in a manner such person reasonably believed to be in, or not opposed to, the
best interests of the registrant. To the extent that a director, officer,
employee or other agent is successful on the merits or otherwise in defense of a
third-party or derivative action, such person will be indemnified against
expenses actually and reasonably incurred in connection therewith. This Section
also permits a corporation further to indemnify such persons by other means
unless a judgment or other final adjudication establishes that such person's
actions or omissions which were material to the cause of action constitute (1) a
crime (unless such person had reasonable cause to believe his conduct was lawful
or had no reasonable cause to believe it unlawful), (2) a transaction from which
he derived an improper personal benefit, (3) a transaction in violation of
Florida Statutes Section 607.0834 (unlawful distributions to shareholders), or
(4) willful misconduct or a conscious disregard for the best interests of the
corporation in a proceeding by or in the right of the corporation to procure a
judgment in its favor or in a proceeding by or in the right of a shareholder.
Furthermore, Florida Statutes Section 607.0831 provides, in general, that
no director shall be personally liable for monetary damages to a registrant or
any other person for any statement, vote, decision, or failure to act, regarding
corporate management or policy, unless: (a) the director breached or failed to
perform his duties as a director; and (b) the director's breach of, or failure
to perform, those duties constitutes (i) a violation of criminal law, unless the
director had reasonable cause to believe his conduct was lawful or had no
reasonable cause to believe his conduct was unlawful, (ii) a transaction from
which the director derived an improper personal benefit, either directly or
indirectly, (iii) a circumstance under which the liability provisions of Florida
Statutes Section 607.0834 are applicable, (iv) in a proceeding by or in the
right of a registrant to procure a judgment in its favor or by or in the right
of a shareholder, conscious disregard for the best interest of a registrant, or
willful misconduct, or (v) in a proceeding by or in the right of someone other
than a registrant or a shareholder, recklessness or an act or omission which was
committed in bad faith or with malicious purpose or in a manner exhibiting
wanton and willful disregard of human rights, safety, or property. The term
"recklessness," as used above, means the action, or omission to act, in
conscious disregard of a risk: (a) known, or so obvious that it should have been
known, to the directors; and (b) known to the director, or so obvious that it
should have been known, to be so great as to make it highly probable that harm
would follow from such action or omission.
II-1
<PAGE>
Each registrant's Bylaws provide generally that such registrant shall, to
the fullest extent permitted by law, indemnify all directors and officers of
such registrant, directors, officers, or other employees serving as a fiduciary
of an employee benefit plan of such registrant, as well as any employees or
agents of such registrant or other persons serving at the request of such
registrant in any capacity with any entity or enterprise other than such
registrant to whom such registrant has agreed to grant indemnification (each, an
"Indemnified Person") to the extent that any such person is made a party or
threatened to be made a party or called as a witness or is otherwise involved in
any action, suit, or proceeding in connection with his status as an Indemnified
Person. Such indemnification covers all expenses incurred by any Indemnified
Person (including attorneys' fees) and all liabilities and losses (including
judgments, fines and amounts to be paid in settlement) incurred thereby in
connection with any such action, suit or proceeding.
In addition, each registrant carries insurance permitted by the laws of
Florida on behalf of directors, officers, employees or agents which may cover,
among other things, liabilities under the Securities Act.
ITEM 16. EXHIBITS.
1 Form of Underwriting Agreement.
*4(a) Restated Articles of Incorporation of FPL Group dated December 31,
1984, as amended through December 17, 1990 (filed as Exhibit 4(a) to
Post-Effective Amendment No. 5 to Form S-8, File No. 33-18669).
*4(b) Amendment to FPL Group's Restated Articles of Incorporation dated June
27, 1996 (filed as Exhibit 3 to Form 10-Q for the quarter ended June,
30, 1996, File No. 1-8841).
*4(c) By-Laws of FPL Group dated November 15, 1993 (filed as Exhibit 3(ii) to
Form 10-K for the year ended December 31, 1993, File No. 1-8841).
*4(d) Articles of Incorporation of FPL Group Capital (filed as Exhibit 3.1 to
Registration Statement No. 33- 6215).
*4(e) By-Laws of FPL Group Capital dated January 4, 1988 (filed as Exhibit
4(b) to Registration Statement No. 33-69786).
*4(f) Indenture, dated as of June 1, 1999, between FPL Group Capital and The
Bank of New York, as Trustee (filed as Exhibit 4(a) to Form 8-K filed
with the Commission on July 20, 1999, File No. 1-8841).
*4(g) Guarantee Agreement between FPL Group (as Guarantor) and The Bank of
New York (as Guarantee Trustee) dated as of June 1, 1999 (filed as
Exhibit 4(b) to Form 8-K filed with the Commission on July 20, 1999,
File No. 1-8841).
4(h) Form of Officer's Certificate relating to the Offered Debt Securities,
including form of Offered Debt Securities.
5(a) Opinion and Consent of Steel Hector & Davis LLP, counsel to FPL Group
Capital and FPL Group.
5(b) Opinion and Consent of Thelen Reid & Priest LLP, counsel to FPL Group
Capital and FPL Group.
*12 Consolidated ratio of earnings to fixed charges (filed as Exhibit 12(a)
to Report on Form 10-Q of FPL Group, Inc. for the quarter ended June
30, 1999, File No. 1-8841).
23(a) Independent Auditors' Consent of Deloitte & Touche LLP.
23(b) Consent of Thelen Reid & Priest LLP (included in opinion, attached
hereto as Exhibit 5(b)).
23(c) Consent of Steel Hector & Davis LLP (included in opinion, attached
hereto as Exhibit 5(a)).
24 Powers of Attorney (included on the signature pages of this
registration statement).
II-2
<PAGE>
25(a) Statement of Eligibility on Form T-1 of The Bank of New York, as
Guarantee Trustee.
25(b) Statement of Eligibility on Form T-1 of The Bank of New York, as
Indenture Trustee.
*Incorporated herein by reference as indicated.
ITEM 17. UNDERTAKINGS.
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement (i) to include
any prospectus required by Section 10(a)(3) of the Securities Act; (ii)
to reflect in the Prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; or (iii) to include any material
information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement, provided, however, that the
registrants need not file a post-effective amendment to include the
information required to be included by subsection (i) or (ii) if such
information is contained in periodic reports filed by the registrants
pursuant to Section 13 or Section 15(d) of the Exchange Act, which are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of FPL Group's Annual Report pursuant to Section 13(a)
of the Exchange Act that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrants pursuant to the provisions described under Item 15 above, or
otherwise, the registrants have been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by either registrant of
expenses incurred or paid by a director, officer or controlling person of such
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant against which the claim is asserted
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
II-3
<PAGE>
POWER OF ATTORNEY
Each director and/or officer of the registrant whose signature appears
below hereby appoints the agents for service named in this registration
statement, and each of them severally, as his attorney-in-fact to sign in his
name and behalf, in any and all capacities stated below and to file with the
Securities and Exchange Commission, any and all amendments, including
post-effective amendments, to this registration statement, and the registrant
hereby also appoints each such agent for service as its attorney-in-fact with
like authority to sign and file any such amendments in its name and behalf.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, FPL Group, Inc.
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Juno Beach, State of Florida, on the 27th day of
September, 1999.
FPL GROUP, INC.
By: /s/ James L. Broadhead
------------------------------------------
James L. Broadhead, Chairman of the Board,
Chief Executive Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ James L. Broadhead Chairman of the Board, Chief September 27, 1999
- ------------------------------ Executive Officer and Director
James L. Broadhead (Principal Executive Officer)
/s/ Lewis Hay III Vice President, Finance and September 27, 1999
- ------------------------------ Chief Financial Officer
Lewis Hay III (Principal Financial Officer)
/s/ K. Michael Davis Controller and Chief September 27, 1999
- ------------------------------ Accounting Officer (Principal
K. Michael Davis Accounting Officer)
- ------------------------------ Director
H. Jesse Arnelle
/s/ Sherry S. Barrat Director September 27, 1999
- ------------------------------
Sherry S. Barrat
II-4
<PAGE>
/s/ Robert M. Beall, II Director September 27, 1999
- ------------------------------
Robert M. Beall, II
- ------------------------------ Director
J. Hyatt Brown
/s/ Armando M. Codina Director September 27, 1999
- ------------------------------
Armando M. Codina
/s/ Marshall M. Criser Director September 27, 1999
- ------------------------------
Marshall M. Criser
/s/ B.F. Dolan Director September 27, 1999
- ------------------------------
B. F. Dolan
/s/ Willard D. Dover Director September 27, 1999
- ------------------------------
Willard D. Dover
/s/ Alexander W. Dreyfoos Jr. Director September 27, 1999
- ------------------------------
Alexander W. Dreyfoos Jr.
/s/ Paul J. Evanson Director September 27, 1999
- ------------------------------
Paul J. Evanson
Director
- ------------------------------
Drew Lewis
/s/ Frederic V. Malek Director September 27, 1999
- ------------------------------
Frederic V. Malek
/s/ Paul R. Tregurtha Director September 27, 1999
- ------------------------------
Paul R. Tregurtha
/s/ Roger Young Director September 27, 1999
- ------------------------------
Roger Young
II-5
<PAGE>
POWER OF ATTORNEY
Each director and/or officer of the registrant whose signature appears
below hereby appoints the agents for service named in this registration
statement, and each of them severally, as his attorney-in-fact to sign in his
name and behalf, in any and all capacities stated below and to file with the
Securities and Exchange Commission, any and all amendments, including
post-effective amendments, to this registration statement, and the registrant
hereby also appoints each such agent for service as its attorney-in-fact with
like authority to sign and file any such amendments in its name and behalf.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, FPL Group
Capital Inc certifies that it has reasonable grounds to believe that it meets
all requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Juno Beach, State of Florida, on the 27th day of
September, 1999.
FPL GROUP CAPITAL INC
By: /s/ James L. Broadhead
------------------------------
James L. Broadhead
President, Chief Executive
Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ James L. Broadhead Principal Executive Officer September 27, 1999
- ------------------------------ and Director
James L. Broadhead
President and Chief Executive
Officer
/s/ K. Michael Davis Principal Accounting Officer September 27, 1999
- ------------------------------
K. Michael Davis
Controller and Chief Accounting
Officer
/s/ Dilek L. Samil Principal Financial Officer September 27, 1999
- ------------------------------ and Director
Dilek L. Samil
Vice President, Treasurer and
Assistant Secretary
/s/ Roger Young Director September 27, 1999
- ------------------------------
Roger Young
II-6
<PAGE>
EXHIBIT INDEX
1 Form of Underwriting Agreement.
4(h) Form of Officer's Certificate relating to the Offered Debt Securities,
including form of Offered Debt Securities.
5(a) Opinion and Consent of Steel Hector & Davis LLP, counsel to FPL Group
Capital and FPL Group.
5(b) Opinion and Consent of Thelen Reid & Priest LLP, counsel to FPL Group
Capital and FPL Group.
23(a) Independent Auditors' Consent of Deloitte & Touche LLP.
23(b) Consent of Thelen Reid & Priest LLP (included in opinion, attached
hereto as Exhibit 5(b)).
23(c) Consent of Steel Hector & Davis LLP (included in opinion, attached
hereto as Exhibit 5(a)).
24 Powers of Attorney (included on the signature pages of this
registration statement).
25(a) Statement of Eligibility on Form T-1 of The Bank of New York, as
Guarantee Trustee.
25(b) Statement of Eligibility on Form T-1 of The Bank of New York, as
Indenture Trustee.
EXHIBIT 1
FPL GROUP CAPITAL INC
DEBENTURES
ABSOLUTELY AND UNCONDITIONALLY GUARANTEED BY
FPL GROUP, INC.
------------------------------
UNDERWRITING AGREEMENT
------------------------------
[DATE]
------
To the Representatives named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
1. Introductory. FPL Group Capital Inc, a Florida corporation ("FPL Group
------------
Capital") and a wholly owned subsidiary of FPL Group, Inc., a Florida
corporation ("FPL Group" or the "Guarantor"), proposes to issue and sell its
debt securities of the series designation[s], with the terms and in the
principal amount[s] specified in Schedule I hereto (the "Debentures"). The
Debentures will be absolutely and unconditionally guaranteed by FPL Group
pursuant to and in accordance with the terms of the Guarantee (as hereinafter
defined). Each of FPL Group Capital and the Guarantor hereby confirms its
agreement with the several Underwriters (as defined below) as set forth herein.
The term "Underwriters" as used herein shall be deemed to mean the firm or
corporation or the several firms or corporations named in Schedule II hereto and
any underwriter substituted as provided in Section 7 hereof and the term
"Underwriter" shall be deemed to mean one of such Underwriters. If the firm or
<PAGE>
firms listed in Schedule I hereto (the "Representatives") are the same as the
firm or firms listed in Schedule II hereto, then the terms "Underwriters" and
"Representatives", as used herein, shall each be deemed to refer to such firm or
firms. The Representatives represent that they have been authorized by each
Underwriter to enter into this agreement on behalf of such Underwriter and to
act for it in the manner herein provided. All obligations of the Underwriters
hereunder are several and not joint. If more than one firm is named in Schedule
I hereto, any action under or in respect of this agreement may be taken by such
firms jointly as the Representatives or by one of the firms acting on behalf of
the Representatives and such action will be binding upon all the Underwriters.
2. Description of Debentures and Guarantee. The Debentures [of each
---------------------------------------
series] will be a series of debentures issued by FPL Group Capital under an
Indenture, dated as of June 1, 1999, to The Bank of New York, as Trustee, in
substantially the form heretofore delivered to the Representatives (together
with any amendments or supplements thereto, the "Indenture"). The Debentures
will be absolutely and unconditionally guaranteed by FPL Group pursuant to, and
in accordance with, the terms of a Guarantee Agreement, dated June 1, 1999,
between FPL Group, as Guarantor, and The Bank of New York, as Guarantee Trustee,
in substantially the form heretofore delivered to the Representatives (the
"Guarantee").
3. Representations and Warranties of FPL Group Capital. FPL Group Capital
---------------------------------------------------
represents and warrants to the several Underwriters that:
(a) FPL Group Capital and FPL Group have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form
S-3, including a prospectus (the "Registration Statement Nos. 333-_____ and
333-_____-01"), for the registration of $500,000,000 aggregate principal
amount of FPL Group Capital debt securities, which are guaranteed as to
payment of principal, interest and premium, by FPL Group (the "Debt
Securities"), under the Securities Act of 1933, as amended (the "Securities
Act"), which registration statement has been declared effective by the
Commission. References herein to the term "Registration Statement" as of
any given date shall mean Registration Statement Nos. 333-_____ and
333-_____-01, as amended or supplemented to such date, including, as of
such date, all documents incorporated by reference therein pursuant to Item
12 of Form S-3 ("Incorporated Documents"). References herein to the term
"Prospectus" as of any given date shall mean the prospectus forming a part
of Registration Statement Nos. 333-_____ and 333-_____-01, as supplemented
by a prospectus supplement relating to the Debentures proposed to be filed
pursuant to Rule 424 of the general rules and regulations of the Securities
Act ("Rule 424"), and as further amended or supplemented as of such date
(other than amendments or supplements relating to (i) Debt Securities other
than the Debentures or, (ii) when referring to the Prospectus relating to a
particular offering of the Debentures, Debentures other than the Debentures
being offered on such date), including all Incorporated Documents.
References herein to the term "Effective Date" shall be deemed to refer to
the later of the time and date that Registration Statement Nos. 333-_____
and 333-_____- 01 was declared effective and the time and date of the
2
<PAGE>
filing thereafter of FPL Group's most recent Annual Report on Form 10-K, if
such filing is made prior to the Closing Date (as hereinafter defined).
Prior to the termination of the offering of the Debentures and Guarantee,
FPL Group Capital will not file any amendment to the Registration Statement
or any amendment or supplement to the Prospectus without prior notice to
the Representatives, and to Winthrop, Stimson, Putnam & Roberts, who are
acting as Counsel for the several Underwriters ("Counsel for the
Underwriters"), or any such amendment or supplement to which the
Representatives shall reasonably object in writing, or which shall be
unsatisfactory to Counsel for the Underwriters.
(b) The Registration Statement at the Effective Date, fully complied,
and the Prospectus, both on the date it is filed with the Commission
pursuant to Rule 424 (such date, the "424 Date") and at the Closing Date,
and the Registration Statement and the Indenture at the Closing Date, will
fully comply, in all material respects with the applicable provisions of
the Securities Act and the Trust Indenture Act of 1939, as amended (the
"1939 Act"), respectively, and, in each case, the applicable instructions,
rules and regulations of the Commission thereunder; the Registration
Statement, at the Effective Date, did not, and at the Closing Date, the
Registration Statement will not, contain an untrue statement of a material
fact, or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; the Prospectus, on
the 424 Date and at the Closing Date, will not include an untrue statement
of a material fact or omit to state a material fact necessary in order to
make the statements contained therein, in the light of the circumstances
under which they were made, not misleading; provided, that the foregoing
representations and warranties in this subsection (b) shall not apply to
statements or omissions made in reliance upon and in conformity with
information furnished in writing to FPL Group Capital or FPL Group by or on
behalf of any Underwriter through the Representatives for use in connection
with the preparation of the Registration Statement or the Prospectus, or to
any statements in or omissions from the Statements of Eligibility on Form
T-1, or amendments thereto, of the respective Trustees under the Indenture
and the Guarantee or to any statements or omissions made in the Prospectus
relating to the DTC Book-Entry-Only System that are based solely on
information contained in published reports of DTC.
(c) The consummation of the transactions herein contemplated and the
fulfillment of the terms hereof on the part of FPL Group Capital to be
fulfilled have been duly authorized by all necessary corporate action of
FPL Group Capital in accordance with the provisions of its Articles of
Incorporation (the "FPL Group Capital Charter"), by-laws and applicable
law, and the Debentures when issued and delivered as provided herein will
constitute valid and binding obligations of FPL Group Capital enforceable
in accordance with their terms, except as limited or affected by
bankruptcy, insolvency, reorganization, receivership, moratorium or other
laws affecting creditors' rights and remedies generally and general
principles of equity.
(d) The consummation of the transactions herein contemplated and the
fulfillment of the terms hereof and the compliance by FPL Group Capital
with all the terms and provisions of the Indenture will not result in a
3
<PAGE>
breach of any of the terms or provisions of, or constitute a default under,
the FPL Group Capital Charter or by-laws, or any indenture, mortgage, deed
of trust or other agreement or instrument to which FPL Group Capital is now
a party, or violate any law or any order, rule, decree or regulation
applicable to FPL Group Capital of any Federal or state court, regulatory
board or body or administrative agency having jurisdiction over FPL Group
Capital or any of its property, except where such breach, default or
violation would not have a material adverse effect on the business,
properties or financial condition of FPL Group Capital and its subsidiaries
taken as a whole.
(e) FPL Group Capital and its direct significant subsidiaries (as
defined in Regulation S-X (17 CFR Part 210)) have good and marketable title
to all of the capital stock of their respective direct significant
subsidiaries (as defined in Regulation S-X) free and clear of all liens and
encumbrances, except such as do not materially affect the value thereof.
(f) Each of FPL Group Capital's direct and indirect significant
subsidiaries (as defined in Regulation S-X) has been duly incorporated, is
validly existing and is in good standing under the laws of its respective
jurisdiction of incorporation, and is duly qualified to do business and is
in good standing as a foreign corporation in each jurisdiction in which its
respective ownership of properties or the conduct of its respective
businesses requires such qualification, except where the failure so to
qualify would not have a material adverse effect on the business,
properties or financial condition of FPL Group Capital and its subsidiaries
taken as a whole, and has the corporate power and authority necessary to
own or hold its respective properties and to conduct the businesses in
which it is engaged.
4. Representations and Warranties of FPL Group. FPL Group represents and
-------------------------------------------
warrants to the several Underwriters that:
(a) FPL Group has filed with the Commission the Registration Statement
for the registration of the Guarantee with respect to the Debt Securities
under the Securities Act, which registration statement has been declared
effective by the Commission. Prior to the termination of the offering of
the Debentures and Guarantee, FPL Group will not file any amendment to the
Registration Statement or any amendment or supplement to the Prospectus
without prior notice to the Representatives, and to Counsel for the
Underwriters, or any such amendment or supplement to which the
Representatives shall reasonably object in writing, or which shall be
unsatisfactory to Counsel for the Underwriters.
(b) The Registration Statement at the Effective Date fully complied,
and the Prospectus, both on the 424 Date and at the Closing Date, and the
Registration Statement and the Guarantee at the Closing Date, will fully
comply, in all material respects with the applicable provisions of the
Securities Act and the 1939 Act, respectively and, in each case, the
4
<PAGE>
applicable instructions, rules and regulations of the Commission
thereunder; at the Effective Date, the Registration Statement did not, and
at the Closing Date, the Registration Statement will not, contain an untrue
statement of a material fact, or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; the Prospectus, on the 424 Date and at the Closing Date, will
not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained therein,
in the light of the circumstances under which they were made, not
misleading; and the Incorporated Documents, when filed with the Commission,
fully complied or will fully comply in all material respects with the
applicable provisions of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the applicable instructions, rules and
regulations of the Commission thereunder; provided, that the foregoing
representations and warranties in this subsection (b) shall not apply to
statements or omissions made in reliance upon and in conformity with
information furnished in writing to FPL Group Capital or FPL Group by or on
behalf of any Underwriter through the Representatives for use in connection
with the preparation of the Registration Statement or the Prospectus, or to
any statements in or omissions from the Statements of Eligibility on Form
T-1, or amendments thereto, of the respective Trustees under the Indenture
and the Guarantee, or to any statements or omissions made in the Prospectus
relating to the DTC Book-Entry-Only System that are based solely on
published reports of DTC.
(c) The financial statements included as part of or incorporated by
reference in the Registration Statement present fairly the consolidated
financial condition and results of operations of FPL Group and its
subsidiaries taken as a whole, at the respective dates and for the
respective periods to which they apply; such financial statements have been
prepared in each case in accordance with generally accepted accounting
principles consistently applied throughout the periods involved except as
otherwise indicated in the Registration Statement; and Deloitte & Touche
LLP, who have audited the audited financial statements of FPL Group, are
independent public accountants as required by the Securities Act and the
Exchange Act and the rules and regulations of the Commission thereunder.
(d) Except as reflected in or contemplated by the Registration
Statement and the Prospectus, since the respective most recent dates as of
which information is given in the Registration Statement and Prospectus,
there has not been any material adverse change in the business, properties
or financial condition of FPL Group and its subsidiaries taken as a whole,
nor has any transaction been entered into by FPL Group or any of its
subsidiaries that is material to FPL Group and its subsidiaries taken as a
whole, other than changes and transactions contemplated by the Registration
Statement and Prospectus, and transactions in the ordinary course of
business. FPL Group and its subsidiaries have no contingent obligation
material to FPL Group and its subsidiaries taken as a whole, which is not
disclosed in the Registration Statement and Prospectus.
5
<PAGE>
(e) The consummation of the transactions herein contemplated and the
fulfillment of the terms hereof on the part of FPL Group to be fulfilled
have been duly authorized by all necessary corporate action of FPL Group in
accordance with the provisions of its Articles of Incorporation (the "FPL
Group Charter"), by-laws and applicable law, and the Guarantee when issued
and delivered as provided herein will constitute a valid and binding
obligation of FPL Group enforceable in accordance with its terms, except as
limited or affected by bankruptcy, insolvency, reorganization,
receivership, moratorium or other laws affecting creditors' rights and
remedies generally and general principles of equity.
(f) The consummation of the transactions herein contemplated and the
fulfillment of the terms hereof and the compliance by FPL Group with all
the terms and provisions of the Guarantee will not result in a breach of
any of the terms or provisions of, or constitute a default under, the FPL
Group Charter or by-laws, or any indenture, mortgage, deed of trust or
other agreement or instrument to which FPL Group or any of its subsidiaries
is now a party, or violate any law or any order, rule, decree or regulation
applicable to FPL Group or any of its subsidiaries of any Federal or state
court, regulatory board or body or administrative agency having
jurisdiction over FPL Group or its subsidiaries or any of their respective
property, except where such breach, default or violation would not have a
material adverse effect on the business, properties or financial condition
of FPL Group and its subsidiaries taken as a whole.
(g) FPL Group has good and marketable title to all of the common stock
of its direct and indirect significant subsidiaries (as defined in
Regulation S-X) free and clear of all liens and encumbrances, except such
as do not materially affect the value thereof.
(h) The Guarantee has been duly authorized, executed and delivered by
FPL Group and constitutes a valid and binding agreement of FPL Group
enforceable in accordance with its terms, except as limited or affected by
bankruptcy, insolvency, reorganization, receivership, moratorium or other
laws affecting creditors' rights and remedies generally and general
principles of equity. Neither the execution and delivery of the Guarantee
nor the performance by FPL Group of any of its obligations thereunder
requires any consent, approval, authorization, registration or
qualification of or by any governmental agency or body.
(i) Each of FPL Group's direct and indirect significant subsidiaries
(as defined in Regulation S-X) has been duly incorporated, is validly
existing and is in good standing under the laws of its respective
jurisdiction of incorporation, and is duly qualified to do business and is
in good standing as a foreign corporation in each jurisdiction in which its
respective ownership of properties or the conduct of its respective
businesses requires such qualification, except where the failure so to
qualify would not have a material adverse effect on the business,
properties or financial condition of FPL Group and its subsidiaries taken
as a whole, and has the corporate power and authority necessary to own or
hold its respective properties and to conduct the businesses in which it is
engaged.
6
<PAGE>
5. Purchase and Sale. On the basis of the representations and warranties
-----------------
herein contained, and subject to the terms and conditions in this agreement set
forth, FPL Group Capital agrees to sell to the respective Underwriters named in
Schedule II hereto, severally and not jointly, and the respective Underwriters
agree, severally and not jointly, to purchase from FPL Group Capital, the
respective principal amounts of Debentures set forth opposite their respective
names in Schedule II hereto at the purchase price[s] for those Debentures set
forth in Schedule I hereto.
6. Public Offering. The Underwriters propose to make a bona fide public
---------------
offering of the Debentures and Guarantee as set forth in the Prospectus, such
public offering to be made as soon after the execution of this agreement as
practicable, subject, however, to the terms and conditions of this agreement.
7. Time and Place of Closing, Default of Underwriter. Delivery of the
-------------------------------------------------
Debentures [of each series] and payment therefor by certified or official bank
check or checks, payable to the order of FPL Group Capital in New York Clearing
House or similar next day funds, or by wire transfer in Federal funds, shall be
made at the time, date and place set forth in Schedule I, or at such other time,
date or place as shall be agreed upon in writing by FPL Group Capital and the
Representatives. The hour and date of such delivery and payment are herein
called the "Closing Date".
The Debentures shall be delivered to the Representatives for the respective
accounts of the Underwriters against payment by the several Underwriters through
the Representatives of the purchase price therefor. Delivery of the Debentures
shall be made through the facilities of The Depository Trust Company unless the
Representatives and FPL Group Capital shall otherwise agree. For the purpose of
expediting the checking of the Debentures by the Representatives on behalf of
the Underwriters, FPL Group Capital agrees to make such Debentures available to
the Representatives for such purpose at the office of Thelen Reid & Priest LLP,
40 West 57th Street, New York, New York 10019, not later than 2:00 P.M., New
York City time, on the business day preceding the Closing Date, or at such other
time and place as may be agreed upon by FPL Group Capital and the
Representatives.
If any Underwriter shall fail to purchase and pay for the principal amount
of the Debentures which such Underwriter has agreed to purchase and pay for
hereunder (otherwise than by reason of any failure on the part of FPL Group
Capital or FPL Group to comply with any of the provisions contained herein), the
non-defaulting Underwriters shall be obligated to take up and pay for (in
addition to the respective principal amount of the Debentures [of each series]
set forth opposite their respective names in Schedule II hereto) the principal
amount of the Debentures [of each series] which such defaulting Underwriter or
Underwriters failed to take up and pay for, up to a principal amount thereof
equal to, in the case of each such remaining Underwriter, ten percent (10%) of
the aggregate principal amount of the Debentures [of each series] set forth
opposite the name of such remaining Underwriter in said Schedule II, and such
remaining Underwriters shall have the right, within 24 hours of receipt of such
notice, either to take up and pay for (in such proportion as may be agreed upon
among them), or to substitute another Underwriter or Underwriters, satisfactory
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<PAGE>
to FPL Group Capital, to take up and pay for, the remaining principal amount of
the Debentures [of each series] which the defaulting Underwriter or Underwriters
agreed but failed to purchase. If any unpurchased Debentures still remain, then
FPL Group Capital shall be entitled to a further period of 24 hours within which
to procure another party or other parties, members of the National Association
of Securities Dealers, Inc. (or, if not members of such Association, who are not
eligible for membership in said Association and who agree (i) to make no sales
within the United States, its territories or its possessions or to persons who
are citizens thereof or residents therein and (ii) in making sales to comply
with said Association's Conduct Rules) and satisfactory to the Representatives
to purchase such Debentures on the terms herein set forth. In the event that,
within the respective prescribed periods, the non-defaulting Underwriters notify
FPL Group Capital that they have arranged for the purchase of such Debentures,
or FPL Group Capital notifies the non-defaulting Underwriters that it has
arranged for the purchase of such Debentures, the non-defaulting Underwriters or
FPL Group Capital shall have the right to postpone the Closing Date for a period
of not more than three full business days beyond the expiration of the
respective prescribed periods in order to effect whatever changes may thus be
made necessary in the Registration Statement or the Prospectus or in any other
documents or arrangements. In the event that neither the non-defaulting
Underwriters nor FPL Group Capital has arranged for the purchase of such
Debentures by another party or parties as above provided, then this agreement
shall terminate without any liability on the part of FPL Group Capital, FPL
Group or any Underwriter (other than an Underwriter which shall have failed or
refused, otherwise than for some reason sufficient to justify, in accordance
with the terms hereof, the cancellation or termination of its obligations
hereunder, to purchase and pay for the Debentures which such Underwriter has
agreed to purchase as provided in Section 5 hereof), except as otherwise
provided in subsections (c) and (e) of Section 8 hereof.
8. Covenants of FPL Group Capital and FPL Group. FPL Group Capital and
--------------------------------------------
FPL Group agree with the several Underwriters that:
(a) FPL Group Capital and FPL Group will promptly file the Prospectus
with the Commission pursuant to Rule 424 under the Securities Act.
(b) FPL Group Capital will deliver to the Representatives and to
Counsel for the Underwriters one signed copy of the Registration Statement
or, if a signed copy is not available, one conformed copy of the
Registration Statement certified by an officer of FPL Group Capital to be
in the form as originally filed, including all Incorporated Documents and
exhibits, except those incorporated by reference, which relate to the
Debentures, including a signed or conformed copy of each consent and
certificate included therein or filed as an exhibit thereto. FPL Group
Capital will deliver to the Underwriters through the Representatives as
soon as practicable after the date of this agreement as many copies of the
Prospectus as the Representatives may reasonably request for the purposes
contemplated by the Securities Act. FPL Group Capital and FPL Group will
promptly advise the Representatives of the issuance of any stop order under
the Securities Act with respect to the Registration Statement or the
institution of any proceedings therefor of which it shall have received
8
<PAGE>
notice prior to the termination of the offering of the Debentures
hereunder. FPL Group Capital and FPL Group will each use its best efforts
to prevent the issuance of any such stop order and to secure the prompt
removal thereof, if issued.
(c) FPL Group Capital will pay all expenses in connection with (i) the
preparation and filing of the Registration Statement and Prospectus, (ii)
the issuance and delivery of the Debentures and Guarantee as provided in
Section 7 hereof, and (iii) the printing and delivery to the
Representatives for the account of the Underwriters, in reasonable
quantities, of copies of the Registration Statement and the Prospectus and
the Indenture. FPL Group Capital will pay all taxes, if any (but not
including any transfer taxes), on the issuance of the Debentures and
Guarantee. FPL Group Capital shall not, however, be required to pay any
amount for any expenses of the Representatives or any of the Underwriters,
except as provided in Sections 9 and 10 hereof and except that if this
agreement shall be terminated in accordance with the provisions of Sections
9, 10 or 12 hereof, FPL Group Capital will pay the fees and disbursements
of Counsel for the Underwriters, whose fees and disbursements the
Underwriters agree to pay in any other event. Neither FPL Group Capital nor
FPL Group shall in any event be liable to any of the several Underwriters
for damages on account of loss of anticipated profits.
(d) During a period of nine months after the date of this agreement,
if any event relating to or affecting FPL Group Capital or FPL Group shall
occur which, in the opinion of FPL Group Capital or FPL Group, should be
set forth in a supplement to or an amendment of the Prospectus in order to
make the Prospectus not misleading in light of the circumstances when it is
delivered to a purchaser, FPL Group Capital and FPL Group will forthwith at
their expense prepare and furnish to the Representatives a reasonable
number of copies of a supplement or supplements or an amendment or
amendments to the Prospectus which will supplement or amend the Prospectus
so that as supplemented or amended it will not include any untrue statement
of a material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading; provided that
should such event relate solely to activities of any of the Underwriters,
then the Underwriters shall assume the expense of preparing and furnishing
copies of any such amendment or supplement. In case any Underwriter is
required to deliver a Prospectus after the expiration of nine months after
the date of this agreement, FPL Group Capital upon the request of the
Representatives will furnish to the Representatives, at the expense of such
Underwriter, a reasonable quantity of a supplemented or amended Prospectus
or supplements or amendments to the Prospectus complying with Section 10 of
the Securities Act.
(e) FPL Group Capital and FPL Group will furnish such proper
information as may be lawfully required and otherwise cooperate in
qualifying the Debentures and Guarantee for offer and sale under the blue
sky laws of such jurisdictions as the Representatives may designate and
will pay filing fees in the aggregate not exceeding $5,000, provided that
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<PAGE>
neither FPL Group Capital nor FPL Group shall be required to qualify as a
foreign corporation or dealer in securities, or to file any consents to
service of process under the laws of any jurisdiction, or to meet other
requirements deemed by FPL Group Capital or FPL Group to be unduly
burdensome.
(f) FPL Group will make generally available to its security holders
(including holders of the Debentures), as soon as practicable, an earnings
statement (which need not be audited, unless required so to be under
Section 11(a) of the Securities Act) of FPL Group in reasonable detail
covering the 12 months beginning not later than the first day of the
quarter next succeeding the month in which occurred the effective date of
the Registration Statement as defined in Rule 158 under the Securities Act.
9. Conditions of Underwriters' Obligations. The several obligations of
---------------------------------------
the Underwriters to purchase and pay for the Debentures shall be subject to the
accuracy of, and compliance with, the representations and warranties of FPL
Group Capital and FPL Group contained herein on the Closing Date, to the
performance by FPL Group Capital and FPL Group of their obligations to be
performed hereunder on or prior to the Closing Date and to the following
conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date; no order of the
Commission directed to the adequacy of any Incorporated Document shall have
been issued; no proceedings for either such purpose shall be pending
before, or threatened by, the Commission on such date; and the
Representatives shall have received, prior to payment for the Debentures, a
certificate dated the Closing Date and signed by an officer of FPL Group
Capital and FPL Group to the effect that, to the best of their knowledge,
no such order is in effect and no proceedings for either such purpose are
pending before, or to the knowledge of FPL Group Capital and FPL Group
threatened by, the Commission.
(b) At the Closing Date, the Representatives shall have received from
Steel Hector & Davis LLP, counsel to FPL Group Capital and FPL Group, a
favorable opinion (with a copy thereof for each of the Underwriters), which
opinion will not pass upon compliance with provisions of the blue sky laws
of any jurisdiction, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) FPL Group Capital and FPL Group are validly organized and
existing corporations in good standing under the laws of the State of
Florida, and have valid franchises, licenses and permits adequate for
the conduct of their respective businesses;
(ii) FPL Group Capital and FPL Group are corporations duly
authorized by their respective Articles of Incorporation to conduct
the businesses which they are now conducting as set forth in the
Prospectus;
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<PAGE>
(iii) the Indenture has been duly and validly authorized by all
necessary corporate action, has been duly and validly executed and
delivered, and is a valid and binding instrument enforceable in
accordance with its terms, except as limited or affected by
bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws affecting creditors' rights and remedies generally and
general principles of equity;
(iv) the Debentures [of each series] are valid and binding
obligations of FPL Group Capital enforceable in accordance with their
respective terms, except as limited or affected by bankruptcy,
insolvency, reorganization, receivership, moratorium or other laws
affecting creditors' rights and remedies generally and general
principles of equity;
(v) the Guarantee has been duly and validly authorized by all
necessary corporate action, has been duly and validly executed and
delivered and is a valid and binding obligation of FPL Group
enforceable in accordance with its terms, except as limited or
affected by bankruptcy, insolvency, reorganization, receivership,
moratorium or other laws affecting creditors rights and remedies
generally and general principles of equity;
(vi) to the best of the knowledge of said Counsel, FPL Group
Capital and its direct significant subsidiaries (as defined in
Regulation S-X) have good and marketable title to all of the capital
stock of their respective direct significant subsidiaries (as defined
in Regulation S-X) free and clear of all liens and encumbrances,
except such as do not materially affect the value thereof, and FPL
Group has good and marketable title to all of the common stock of its
direct and indirect significant subsidiaries (as defined in Regulation
S-X) free and clear of all liens and encumbrances, except such as do
not materially affect the value thereof;
(vii) the Registration Statement, at the Effective Date, and the
Prospectus, at the 424 Date (except as to the financial statements and
other financial or statistical data contained or incorporated by
reference therein, upon which such opinion need not pass and except
for those parts of the Registration Statement that constitute the
Statements of Eligibility on Form T-1, upon which such opinion need
not pass), complied as to form in all material respects with the
applicable requirements of the Securities Act and the applicable
instructions, rules and regulations of the Commission thereunder and
the Incorporated Documents (except as to the financial statements and
other financial or statistical data contained or incorporated by
reference therein, upon which such opinion need not pass), at the time
they were filed with the Commission, complied as to form in all
material respects with the applicable requirements of the Exchange Act
and the applicable instructions, rules and regulations of the
Commission thereunder; the Registration Statement has become, and is,
at the Closing Date, effective under the Securities Act, and to the
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<PAGE>
best of the knowledge of said Counsel, no proceedings for a stop order
with respect to the Registration Statement are pending or threatened
under Section 8 of the Securities Act;
(viii) the consummation of the transactions herein contemplated
and the fulfillment of the terms hereof and the compliance by FPL
Group Capital with all the terms and provisions of the Indenture, and
by FPL Group with all the terms and provisions of the Guarantee, will
not result in a breach of any of the terms or provisions of, or
constitute a default under, the FPL Group Capital Charter or by-laws
or the FPL Group Charter or by-laws, or any indenture, mortgage, deed
of trust or other agreement or instrument the terms of which are known
to such Counsel to which FPL Group Capital or FPL Group or any of
their respective subsidiaries, as the case may be, is now a party,
except where such breach or default would not have a material adverse
effect on the business, properties or financial condition of FPL Group
Capital or FPL Group, each together with its respective subsidiaries
taken as a whole, as the case may be;
(ix) nothing has come to the attention of said Counsel that would
lead them to believe that the Registration Statement (except as to the
financial statements and other financial or statistical data contained
or incorporated by reference therein, upon which such opinion need not
pass and except for those parts of the Registration Statement that
constitute the Statements of Eligibility on Form T-1, upon which such
opinion need not pass), at the Effective Date, contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, at the 424 Date and at
the Closing Date (except as aforesaid), included or includes, any
untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, provided that such Counsel may state that their belief is
based upon their participation in the preparation of the Registration
Statement and the Prospectus and any supplements and amendments
thereto and review and discussion of the contents thereof, but is
without independent check or verification except as specified;
(x) to the best of the knowledge of said Counsel, no approval,
authorization, consent or order of any public board or body (other
than in connection or in compliance with the provisions of the blue
sky laws of any jurisdiction) is legally required for the
authorization of the issuance and sale of the Debentures [of any
series] and Guarantee;
(xi) the statements made in the Prospectus under the headings
"Description of Offered Debt Securities", "Certain Terms of the
Debentures" and "Description of the Guarantee", insofar as they
purport to constitute summaries of the documents referred to therein,
12
<PAGE>
constitute accurate summaries of the terms of such documents in all
material respects;
(xii) the Indenture and the Guarantee are duly qualified under
the 1939 Act;
(xiii) this agreement has been duly and validly authorized,
executed and delivered by FPL Group Capital and FPL Group; and
(xiv) except as stated or referred to in the Prospectus, there
are no material pending legal proceedings to which FPL Group Capital
or any of its subsidiaries or FPL Group or any of its subsidiaries is
a party or of which property of FPL Group Capital or any of its
subsidiaries or FPL Group or any of its subsidiaries is the subject
which if determined adversely would have a material effect on FPL
Group Capital and its subsidiaries taken as a whole or FPL Group and
its subsidiaries taken as a whole, as the case may be, and, to the
best of the knowledge of said Counsel, no such proceeding is known to
be contemplated by governmental authorities.
In said opinion such Counsel may rely as to all matters of New York
law on an opinion of Thelen Reid & Priest LLP.
(c) At the Closing Date, the Representatives shall have received from
Thelen Reid & Priest LLP, counsel to FPL Group Capital and FPL Group, a
favorable opinion (with a copy thereof for each of the Underwriters), which
opinion will not pass upon compliance with provisions of the blue sky laws
of any jurisdiction, in form and substance satisfactory to Counsel for the
Underwriters, to the same effect with respect to matters enumerated in
paragraphs (iii) to (xiii) of subsection (b) of this Section 9. In said
opinion, such counsel may rely as to all matters of Florida law on an
opinion of Steel Hector & Davis LLP, and will not pass upon the
incorporation of FPL Group or FPL Group Capital or franchises.
(d) At the Closing Date, the Representatives shall have received from
Counsel for the Underwriters a favorable opinion (with a copy thereof for
each of the Underwriters) to the same effect with respect to the matters
enumerated in (iii)-(v), (vii) and (ix)-(xiii) of subsection (b) of this
Section 9. In said opinion, such Counsel may rely as to all matters of
Florida law on the opinion of Steel Hector & Davis LLP, and will not pass
upon the incorporation of FPL Group or FPL Group Capital or franchises.
(e) At the Closing Date, the Representatives shall have received from
Deloitte & Touche LLP a letter (with copies thereof for each of the
Underwriters) to the effect that (i) they are independent public
accountants with respect to FPL Group within the meaning of the Securities
Act and the Exchange Act and the applicable published rules and regulations
thereunder; (ii) in their opinion, the consolidated financial statements of
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<PAGE>
FPL Group audited by them and incorporated by reference in the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and the published
rules and regulations thereunder; (iii) on the basis of performing a review
of interim financial information as described in SAS No. 71, Interim
Financial Information, on the unaudited condensed consolidated financial
statements of FPL Group incorporated by reference in the Prospectus,
reading the latest available interim unaudited consolidated financial
statements of FPL Group since the close of FPL Group's most recent audited
fiscal year, reading the minutes and consents of the Board of Directors and
the Finance Committee of the Board of Directors and Shareholders of FPL
Group since the end of the most recent audited fiscal year, and inquiries
of officials of FPL Group who have responsibility for financial and
accounting matters (it being understood that the foregoing procedures do
not constitute an audit made in accordance with generally accepted auditing
standards and they would not necessarily reveal matters of significance
with respect to the comments made in such letter, and accordingly that
Deloitte & Touche LLP makes no representation as to the sufficiency of such
procedures for the several Underwriters' purposes), nothing has come to
their attention which caused them to believe that (a) the unaudited
condensed consolidated financial statements of FPL Group incorporated by
reference in the Prospectus (1) do not comply as to form in all material
respects with the applicable accounting requirements of the Securities Act
and the Exchange Act and the published rules and regulations thereunder and
(2) except as disclosed in the Prospectus, are not in conformity with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited consolidated financial statements of
FPL Group incorporated by reference in the Prospectus; (b) at the date of
the latest available interim balance sheet read by them and at a specified
date not more than five days prior to the Closing Date there was any change
in the capital stock or long-term debt of FPL Group and its subsidiaries,
or decrease in their consolidated net assets, in each case as compared with
amounts shown in the most recent condensed consolidated balance sheet
incorporated by reference in the Prospectus, except in all instances for
changes or decreases which the Prospectus discloses have occurred or may
occur, or as occasioned by the declaration, provision for, or payment of
dividends, or as occasioned by the sale of common stock pursuant to any
employee benefit plan or the dividend reinvestment plan or the repurchase
of common stock by FPL Group or which are described in such letter; (c) for
the period from the date of the most recent condensed consolidated balance
sheet incorporated by reference in the Prospectus to the latest available
interim balance sheet read by them and for the period from the date of the
latest available interim balance sheet read by them to a specified date not
more than five days prior to the Closing Date, there were any decreases, as
compared with the corresponding period in the preceding year, in total
consolidated operating revenues or in net income, except in all instances
for decreases which the Prospectus discloses have occurred or may occur, or
which are described in such letter; and (iv) they have carried out certain
procedures and made certain findings, as specified in such letter, with
respect to certain amounts included in the Prospectus and Exhibit 12 to the
Registration Statement and such other items as the Representatives may
reasonably request.
14
<PAGE>
(f) Since the respective most recent dates as of which information is
given in the Registration Statement and Prospectus, and up to the Closing
Date, (i) there shall have been no material adverse change in the business,
properties or financial condition of (a) FPL Group Capital and its
subsidiaries taken as a whole or (b) FPL Group and its subsidiaries taken
as a whole, except in each case as reflected in or contemplated by the
Registration Statement and Prospectus, and (ii) there shall have been no
material transaction entered into by (a) FPL Group Capital or any of its
subsidiaries that is material to FPL Group Capital and its subsidiaries
taken as a whole or (b) FPL Group or any of its subsidiaries that is
material to FPL Group and its subsidiaries taken as a whole, in each case
other than transactions disclosed by the Registration Statement and the
Prospectus, and transactions in the ordinary course of business; and at the
Closing Date, the Representatives shall have received a certificate to such
effect from each of FPL Group Capital and FPL Group signed by an officer of
FPL Group Capital or FPL Group, as the case may be.
(g) All legal proceedings to be taken in connection with the issuance
and sale of the Debentures and the Guarantee shall have been satisfactory
in form and substance to Counsel for the Underwriters.
In case any of the conditions specified above in this Section 9 shall not
have been fulfilled, this agreement may be terminated by the Representatives,
upon mailing or delivering written notice thereof to FPL Group Capital. Any such
termination shall be without liability of any party to any other party except as
otherwise provided in subsections (c) and (e) of Section 8 hereof and except
that in the event of such termination by the Representatives, FPL Group Capital
shall reimburse the Underwriters for out-of-pocket expenses reasonably incurred
by them in connection with the transactions contemplated by this agreement, not
in excess, however, of an aggregate of $5,000.
10. Condition of FPL Group Capital's and FPL Group's Obligations. The
------------------------------------------------------------
obligation of FPL Group Capital to deliver the Debentures and the obligation of
FPL Group to deliver the Guarantee shall be subject to the following condition:
(a) No stop order suspending the effectiveness of the Registration
Statement, and no order directed to the adequacy of any Incorporated
Document, shall be in effect at the Closing Date, and no proceedings for
either such purpose shall be pending before, or threatened by, the
Commission on such date.
In case the condition specified in this Section 10 shall not have been
fulfilled, this agreement may be terminated by FPL Group Capital and FPL Group
upon mailing or delivering written notice thereof to the Representatives. Any
such termination shall be without liability of any party to any other party,
except as otherwise provided in subsections (c) and (e) of Section 8 hereof and
except that in the event of such termination FPL Group Capital shall reimburse
the Underwriters for out-of-pocket expenses reasonably incurred by them in
connection with the transactions contemplated by this agreement, not in excess,
however, of an aggregate of $5,000.
15
<PAGE>
11. Indemnification.
---------------
(a) FPL Group Capital and FPL Group, jointly and severally, agree to
indemnify and hold harmless each Underwriter and each person who controls
any Underwriter within the meaning of Section 15 of the Securities Act
against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the
Securities Act or any other statute or common law and to reimburse each
such Underwriter and controlling person for any legal or other expenses
(including, to the extent hereinafter provided, reasonable counsel fees)
incurred by them in connection with investigating any such losses, claims,
damages or liabilities or in connection with defending any actions, insofar
as such losses, claims, damages, liabilities, expenses or actions arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus (if used prior to the
Effective Date of the Registration Statement), including all Incorporated
Documents, or in the Registration Statement or the Prospectus, or the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that the indemnity agreement contained in
this paragraph shall not apply to any such losses, claims, damages,
liabilities, expenses or actions arising out of, or based upon, any such
untrue statement or alleged untrue statement, or any such omission or
alleged omission, if such statement or omission was made in reliance upon
and in conformity with information furnished herein, to FPL Group Capital
or to FPL Group in writing by or on behalf of any Underwriter, through the
Representatives, for use in connection with the preparation of the
Registration Statement or the Prospectus or any amendment or supplement to
either thereof, or arising out of, or based upon, statements in or
omissions from the Statements of Eligibility on Form T-1 of the respective
Trustees under the Indenture and the Guarantee; and provided, further, that
the indemnity agreement contained in this paragraph in respect of any
preliminary prospectus shall not inure to the benefit of any Underwriter
(or of any person controlling such Underwriter) on account of any such
losses, claims, damages, liabilities, expenses or actions arising from the
sale of the Debentures [of any series] to any person if such Underwriter
shall have failed to send or give to such person (i) with or prior to the
written confirmation of such sale, a copy of the Prospectus or the
Prospectus as amended or supplemented, if any amendments or supplements
thereto shall have been furnished at or prior to the time of written
confirmation of the sale involved, but exclusive of any Incorporated
Documents unless the alleged omission or alleged untrue statement with
respect to such preliminary prospectus is not corrected in the Prospectus
or the Prospectus as amended or supplemented at the time of confirmation,
or (ii) with or prior to the delivery of such Debentures to such person, a
copy of any amendment or supplement to the Prospectus which shall have been
furnished subsequent to such written confirmation and prior to the delivery
of such Debentures to such person, but exclusive of any Incorporated
Documents unless the alleged omission or alleged untrue statement with
respect to such preliminary prospectus was not corrected in such amendment
or supplement at the time of such delivery of such Debentures. The
indemnity agreement of FPL Group Capital and FPL Group contained in this
16
<PAGE>
paragraph and the representations and warranties of FPL Group Capital and
FPL Group contained in Section 3 and Section 4 hereof, respectively, shall
remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or any such
controlling person, and shall survive the delivery of the Debentures [of
each series]. The Underwriters agree promptly to notify each of FPL Group
Capital and FPL Group, and each other Underwriter, of the commencement of
any litigation or proceedings against them or any of them or any such
controlling person in connection with the issuance and sale of the
Debentures [of any series].
(b) Each Underwriter agrees to indemnify and hold harmless each of FPL
Group Capital and FPL Group, their respective officers and directors, each
other Underwriter, and each person who controls any thereof within the
meaning of Section 15 of the Securities Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of
them may become subject under the Securities Act or other statute or common
law, and to reimburse each of them for any legal or other expenses
(including, to the extent hereinafter provided, reasonable counsel fees)
incurred by them in connection with investigating any such losses, claims,
damages or liabilities, or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities, expenses or actions
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading if such statement or omission was made in reliance
upon and in conformity with information furnished herein, to FPL Group
Capital or FPL Group in writing by or on behalf of such Underwriter,
through the Representatives or otherwise, for use in connection with the
preparation of the Registration Statement or the Prospectus or any
amendment or supplement to any thereof. The indemnity agreement of the
respective Underwriters contained in this paragraph shall remain operative
and in full force and effect, regardless of any investigation made by or on
behalf of FPL Group Capital, FPL Group or any of its officers or directors
or any such other Underwriter or any such controlling person, and shall
survive the delivery of the Debentures [of each series]. FPL Group Capital
and FPL Group agree promptly to notify the Representatives of the
commencement of any litigation or proceedings against FPL Group Capital,
FPL Group (or any controlling person of either thereof) or any of its
officers or directors in connection with the issuance and sale of the
Debentures [of any series].
(c) FPL Group Capital, FPL Group and the several Underwriters each
agree that, upon the receipt of notice of the commencement of any action
against it, its officers and directors, or any person controlling it as
aforesaid, in respect of which indemnity may be sought on account of any
indemnity agreement contained herein, it will promptly give written notice
of the commencement thereof to the party or parties against whom indemnity
shall be sought thereunder, but the omission so to notify such indemnifying
party or parties of any such action shall not relieve such indemnifying
party or parties from any liability which it or they may have to the
indemnified party otherwise than on account of such indemnity agreement. In
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<PAGE>
case such notice of any such action shall be so given, such indemnifying
party shall be entitled to participate at its own expense in the defense
or, if it so elects, to assume (in conjunction with any other indemnifying
parties) the defense of such action, in which event such defense shall be
conducted by counsel chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall be defendant or
defendants in such action, and such defendant or defendants shall bear the
fees and expenses of any additional counsel retained by them; but if the
indemnifying party shall elect not to assume the defense of such action,
such indemnifying party will reimburse such indemnified party or parties
for the reasonable fees and expenses of any counsel retained by them;
provided, however, if the defendants in any such action include both the
indemnified party and the indemnifying party and counsel for the
indemnifying party shall have reasonably concluded that there may be a
conflict of interest involved in the representation by such counsel of both
the indemnifying party and the indemnified party, the indemnified party or
parties shall have the right to select separate counsel, satisfactory to
the indemnifying party, to participate in the defense of such action on
behalf of such indemnified party or parties at the expense of the
indemnifying party (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate
counsel representing the indemnified parties who are parties to such
action).
12. Termination. This agreement may be terminated by the Representatives
-----------
by delivering written notice thereof to FPL Group Capital, at any time prior to
the Closing Date if (a) after the date hereof and at or prior to the Closing
Date there shall have occurred any general suspension of trading in securities
on the New York Stock Exchange, Inc. or there shall have been established by the
New York Stock Exchange, Inc. or by the Commission or by any federal or state
agency or by the decision of any court any limitation on prices for such trading
or any restrictions on the distribution of securities, or a general banking
moratorium declared by New York or federal authorities, or (b) there shall have
occurred any new outbreak of hostilities, including, but not limited to, an
escalation of hostilities which existed prior to the date of this agreement or
other national or international calamity or crisis, the effect of any such event
specified in (a) or (b) above on the financial markets of the United States
shall be such as to make it impracticable for the Underwriters to enforce
contracts for the sale of the Debentures [of any series]. This agreement may
also be terminated at any time prior to the Closing Date if in the judgment of
the Representatives the subject matter of any amendment or supplement to the
Registration Statement or the Prospectus prepared and furnished by FPL Group
Capital or FPL Group reflects a material adverse change in the business,
properties or financial condition of FPL Group Capital and its subsidiaries
taken as a whole or FPL Group and its subsidiaries taken as a whole which
renders it either inadvisable to proceed with such offering, if any, or
inadvisable to proceed with the delivery of the Debentures [of any series] to be
purchased hereunder. Any termination of this agreement pursuant to this Section
12 shall be without liability of any party to any other party except as
otherwise provided in subsections (c) and (e) of Section 8 hereof.
13. Miscellaneous. The validity and interpretation of this agreement shall
-------------
be governed by the laws of the State of New York. This agreement shall inure to
the benefit of FPL Group Capital, FPL Group, the several Underwriters and, with
18
<PAGE>
respect to the provisions of Section 11 hereof, each controlling person referred
to in said Section 11, and their respective successors. Nothing in this
agreement is intended or shall be construed to give to any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this agreement or any provision herein contained. The term "successors" as used
in this agreement shall not include any purchaser, as such purchaser, of any
Debentures from any of the several Underwriters.
14. Notices. All communications hereunder shall be in writing or by
-------
telegram and, if to the Underwriters, shall be mailed or delivered to the
Representatives at the address set forth in Schedule I hereto, or if to FPL
Group Capital or FPL Group, shall be mailed or delivered to it at 700 Universe
Boulevard, Juno Beach, Florida 33408, Attention: Treasurer.
19
<PAGE>
If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter and your acceptance shall constitute a binding agreement between us.
Very truly yours,
FPL Group Capital Inc
By:
---------------------------
Name:
Title:
FPL Group, Inc.
By:
---------------------------
Name:
Title:
Accepted and delivered as
of the date first above written:
By:
---------------------------
Name:
Title:
Acting on their own behalf and as Representatives of the other several
Underwriters referred to in the foregoing agreement.
20
<PAGE>
SCHEDULE I
Underwriting Agreement dated ________ __, 1999
Registration Statement Nos. 333-_____ and 333-_____-01
Representatives and Addresses:
Securities:
Designation:
Principal Amount:
Indenture dated as of:
Date of Maturity:
Interest Rate:
Purchase Price:
Public Offering Price:
Closing Date and Location:
<PAGE>
SCHEDULE II
Principal Amount of
___% Debentures
Underwriter Series due ________
TOTAL
EXHIBIT 4(H)
FPL GROUP CAPITAL INC
OFFICER'S CERTIFICATE
CREATING THE ____% DEBENTURES, SERIES DUE ________
____________, the ___________________________________ of FPL Group
Capital Inc (the "Company"), pursuant to the authority granted in the
accompanying Board Resolutions (all capitalized terms used herein which are not
defined herein but are defined in the Indenture referred to below, shall have
the meanings specified in the Indenture), and Sections 201 and 301 of the
Indenture, does hereby certify to The Bank of New York (the "Trustee"), as
Trustee under the Indenture of the Company (For Unsecured Debt Securities) dated
as of June 1, 1999 (the "Indenture") that:
1. The securities of the ______ series to be issued under the Indenture shall
be designated "_____% Debentures, Series due _________" (the "Debentures of
the _____ Series"), and shall be issued in substantially the form set forth
in Exhibit A hereto;
2. The Debentures of the _____ Series shall mature and the principal shall be
due and payable together with all accrued and unpaid interest thereon on
______, ____;
3. The Debentures of the _____ Series shall bear interest as provided in the
form thereof set forth in Exhibit A hereto;
4. Each installment of interest on a Debenture of the _____ Series shall be
payable as provided in the form thereof set forth as Exhibit A hereto;
5. Registration and registration of transfers and exchanges in respect of the
Debentures of the _____ Series may be effected at the office or agency of
the Company in The City of New York. Notices and demands to or upon the
Company in respect of the Debentures of the _____ Series may be served at
the office or agency of the Company in The City of New York. The Corporate
Trust Office of the Trustee will initially be the agency of the Company for
such payment, registration and registration of transfers and exchanges and
service of notices and demands and the Company hereby appoints the Trustee
as its agent for all such purposes; provided, however, that the Company
reserves the right to change, by one or more Officer's Certificates, any
such office or agency and such agent. The Trustee will be the Security
Registrar and the Paying Agent for the Debentures of the _____ Series;
6. The Regular Record Date for the interest payable on any given Interest
Payment Date with respect to the Debentures of the _____ Series shall be
the 15th day prior to such Interest Payment Date;
7. [Redemption provisions will be inserted]
<PAGE>
8. No service charge shall be made for the registration of transfer or
exchange of the Debentures of the _____ Series; provided, however, that the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with the exchange or
transfer;
9. If the Company shall make any deposit of money and/or Eligible Obligations
with respect to any Debentures of the _____ Series, or any portion of the
principal amount thereof, as contemplated by Section 701 of the Indenture,
the Company shall not deliver an Officer's Certificate described in clause
(z) in the first paragraph of said Section 701 unless the Company shall
also deliver to the Trustee, together with such Officer's Certificate,
either:
(A) an instrument wherein the Company, notwithstanding the
satisfaction and discharge of its indebtedness in respect of the Debentures
of the _____ Series, shall assume the obligation (which shall be absolute
and unconditional) to irrevocably deposit with the Trustee or Paying Agent
such additional sums of money, if any, or additional Eligible Obligations
(meeting the requirements of Section 701), if any, or any combination
thereof, at such time or times, as shall be necessary, together with the
money and/or Eligible Obligations theretofore so deposited, to pay when due
the principal of and premium, if any, and interest due and to become due on
such Debentures of the _____ Series or portions thereof, all in accordance
with and subject to the provisions of said Section 701; provided, however,
that such instrument may state that the obligation of the Company to make
additional deposits as aforesaid shall be subject to the delivery to the
Company by the Trustee of a notice asserting the deficiency accompanied by
an opinion of an independent public accountant of nationally recognized
standing, selected by the Trustee, showing the calculation thereof; or
(B) an Opinion of Counsel to the effect that, as a result of a change
in law occurring after the date of this certificate, the Holders of such
Debentures of the _____ Series, or portions of the principal amount
thereof, will not recognize income, gain or loss for United States federal
income tax purposes as a result of the satisfaction and discharge of the
Company's indebtedness in respect thereof and will be subject to United
States federal income tax on the same amounts, at the same times and in the
same manner as if such satisfaction and discharge had not been effected;
10. The Debentures of the _____ Series will be absolutely, irrevocably and
unconditionally guaranteed as to payment of principal, interest and premium
by FPL Group, Inc., as Guarantor (the "Guarantor"), pursuant to a Guarantee
Agreement, dated as of June 1, 1999, between the Guarantor and The Bank of
New York (as Guarantee Trustee) (the "Guarantee Agreement").
11. With respect to the Debentures of the _____ Series, each of the following
events shall be an additional Event of Default under the Indenture:
(A) the consolidation of the Guarantor with or merger of the Guarantor
into any other Person, or the conveyance or other transfer or lease by the
Guarantor of its properties and assets substantially as an entirety to any
Person, unless
(a) the Person formed by such consolidation or into which the
Guarantor is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Guarantor
2
<PAGE>
substantially as an entirety shall be a Person organized and existing
under the laws of the United States, any State thereof or the District
of Columbia, and shall expressly assume the obligations of the
Guarantor under the Guarantee Agreement; and
(b) immediately after giving effect to such transaction, no Event
of Default (as defined in the Guarantee Agreement) and no event which,
after notice or lapse of time or both, would become an Event of
Default (as defined in the Guarantee Agreement), shall have occurred
and be continuing; and
(B) [additional Events of Default will be added, if applicable]
[12. The Debentures of the _____ Series will be initially issued in global form
registered in the name of Cede & Co. (as nominee for The Depository Trust
Company, New York, New York). The Debentures of the _____ Series in global
form shall bear the depository legend in substantially the form set forth
in Exhibit A hereto. The Debentures of the _____ Series in global form will
contain restrictions on transfer, substantially as described in the form
set forth in Exhibit A hereto.]
13. The Debentures of the _____ Series shall have such other terms and
provisions as are provided in the form set forth in Exhibit A hereto;
14. The undersigned has read all of the covenants and conditions contained in
the Indenture relating to the issuance of the Debentures of the _____
Series and the definitions in the Indenture relating thereto and in respect
of which this certificate is made;
15. The statements contained in this certificate are based upon the familiarity
of the undersigned with the Indenture, the documents accompanying this
certificate, and upon discussions by the undersigned with officers and
employees of the Company familiar with the matters set forth herein;
16. In the opinion of the undersigned, he or she has made such examination or
investigation as is necessary to enable him or her to express an informed
opinion whether or not such covenants and conditions have been complied
with; and
17. In the opinion of the undersigned, such conditions and covenants and
conditions precedent, if any (including any covenants compliance with which
constitutes a condition precedent) to the authentication and delivery of
the Debentures of the _____ Series requested in the accompanying Company
Order No. __ have been complied with.
3
<PAGE>
IN WITNESS WHEREOF, I have executed this Officer's Certificate this
____ day of ______, 1999 in New York, New York.
_______________________________
4
<PAGE>
EXHIBIT A
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO FPL GROUP
CAPITAL INC OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
NO._______________ CUSIP NO.__________
[FORM OF FACE OF DEBENTURE]
FPL GROUP CAPITAL INC
_____% DEBENTURES, SERIES DUE _________
FPL GROUP CAPITAL INC, a corporation duly organized and existing under
the laws of the State of Florida (herein referred to as the "Company", which
term includes any successor Person under the Indenture), for value received,
hereby promises to pay to
or registered assigns, the principal sum of ____________________ Dollars on
____________ and to pay interest on said principal sum semi-annually on ______
and ______ of each year (each an "Interest Payment Date") at the rate of ______%
per annum until the principal hereof is paid or made available for payment.
Interest on the Securities of this series will accrue from and including
__________, to and excluding the first Interest Payment Date, and thereafter
will accrue from and including the last Interest Payment Date to which interest
has been paid or duly provided for. No interest will accrue on the Securities
with respect to the day on which the Securities mature. In the event that any
Interest Payment Date is not a Business Day, then payment of interest payable on
such date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of such delay) with the same
force and effect as if made on the Interest Payment Date. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the 15th day preceding such Interest Payment Date (the "Regular
Record Date"). Any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any
<PAGE>
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in the Indenture referred to on the reverse hereof.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in The City of New York, the State of New York in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts, provided, however, that, at the option of
the Company, interest on this Security may be paid by check mailed to the
address of the person entitled thereto, as such address shall appear on the
Security Register.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed in New York, New York.
FPL GROUP CAPITAL INC
By:_________________________________
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Bank of New York, as Trustee
By:___________________________________
Authorized Signatory
A-2
<PAGE>
[FORM OF REVERSE OF DEBENTURE]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture (for Unsecured Debt Securities), dated as of June 1,
1999 (herein, together with any amendments thereto, called the "Indenture",
which term shall have the meaning assigned to it in such instrument), between
the Company and The Bank of New York, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), and reference is
hereby made to the Indenture, including the Board Resolutions and Officer's
Certificate filed with the Trustee on _________, 1999 creating the series
designated on the face hereof, for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof.
[Redemption provisions will be inserted]
The Securities will be absolutely, irrevocably and unconditionally
guaranteed as to payment of principal, interest and premium by FPL Group, Inc.,
as Guarantor (the "Guarantor"), pursuant to a Guarantee Agreement, dated as of
June 1, 1999, between the Guarantor and The Bank of New York (as Guarantee
Trustee) (the "Guarantee Agreement").
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security upon compliance with certain conditions set
forth in the Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of a majority in aggregate principal
amount of the Securities of all series at the time Outstanding in respect of
which an Event of Default shall have occurred and be continuing shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee reasonable indemnity, and the
Trustee shall not have received from the Holders of a majority in aggregate
principal amount of Securities of all series at the time Outstanding in respect
of which an Event of Default shall have occurred and be continuing a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
A-3
<PAGE>
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and integral multiples thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor and of authorized denominations,
as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the absolute
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
Notwithstanding any provision in the Support Agreement, dated as of
December 18, 1985, between the Company and FPL Group, Inc., as from time to time
in effect (the "Support Agreement"), no Holder of this Security shall be
entitled to enforce the covenants and agreements contained in the Support
Agreement with respect to this Security and no Holder of this Security shall
have any rights to consent or object to any amendment, modification, waiver,
forbearance or termination of the Support Agreement.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
A-4
Exhibit 5(a)
September 27, 1999
FPL Group, Inc.
FPL Group Capital Inc
700 Universe Boulevard
Juno Beach, Florida 33408
Ladies and Gentlemen:
As counsel for FPL Group, Inc., a Florida corporation ("FPL Group"), and
FPL Group Capital Inc, a Florida corporation (the "Company"), we have
participated in the preparation and filing of a registration statement on Form
S-3 to be filed with the Securities and Exchange Commission under the Securities
Act of 1933, as amended, on or about the date hereof (the "Registration
Statement") in connection with the proposed offering of up to $500 million in
principal amount of the Company's unsecured debt securities (the "Debentures")
and FPL Group's Guarantee relating thereto (the "Guarantee"). In connection
therewith, we have reviewed such documents and records as we have deemed
necessary to enable us to express an opinion on the matters covered thereby.
Based on the foregoing, we are of the opinion that the Debentures and the
Guarantee, when the Debentures are sold as contemplated by the Registration
Statement, will be valid, legal and binding obligations of the Company and FPL
Group, respectively, 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.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. We also consent to the reference to us in the Prospectus
included in the Registration Statement under the captions "Experts" and "Legal
Opinions".
We are members of the Florida Bar and this opinion is limited to the laws
of Florida and the federal laws of the United States. As to all matters of New
York law, we have relied, with your consent, upon the opinion of even date
herewith rendered to you by Thelen Reid & Priest LLP, New York, New York. As to
all matters of Florida law, Thelen Reid & Priest LLP is hereby authorized to
rely upon this opinion as though it were rendered to it.
Very truly yours,
/s/ Steel Hector & Davis LLP
STEEL HECTOR & DAVIS LLP
Exhibit 5(b)
September 27, 1999
FPL Group, Inc.
FPL Group Capital Inc
700 Universe Boulevard
Juno Beach, Florida 33408
Ladies and Gentlemen:
As counsel for FPL Group, Inc., a Florida corporation ("FPL Group"),
and FPL Group Capital Inc, a Florida corporation (the "Company"), we have
participated in the preparation and filing of a registration statement on Form
S-3 to be filed with the Securities and Exchange Commission under the Securities
Act of 1933, as amended, on or about the date hereof (the "Registration
Statement"), in connection with the proposed offering of up to $500 million in
principal amount of the Company's unsecured debt securities (the "Debentures")
and FPL Group's Guarantee relating thereto (the "Guarantee"). In connection
therewith, we have reviewed such documents and records as we have deemed
necessary to enable us to express an opinion on the matters covered thereby.
Based on the foregoing, we are of the opinion that the Debentures and
the Guarantee, when the Debentures are sold as contemplated by the Registration
Statement, will be valid, legal and binding obligations of the Company and FPL
Group, respectively, 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.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. We also consent to the reference to us in the Prospectus
included in the Registration Statement under the caption "Legal Opinions".
We are members of the New York Bar and this opinion is limited to the
laws of the State of New York and the federal laws of the United States. As to
all matters of Florida law, we have relied, with your consent, upon the opinion
of even date herewith rendered to you by Steel Hector & Davis LLP, West Palm
Beach, Florida. As to all matters of New York law, Steel Hector & Davis LLP, is
authorized to rely upon this opinion as if it were addressed to it.
Very truly yours,
/s/ Thelen Reid & Priest LLP
THELEN REID & PRIEST LLP
Exhibit 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
on Form S-3 of FPL Group, Inc. and FPL Group Capital Inc of our report dated
February 12, 1999, appearing in FPL Group, Inc.'s Annual Report on Form 10-K for
the year ended December 31, 1998 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Miami, Florida
September 27, 1999
Exhibit 25(a)
===============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
-------------
FPL Group, Inc.
(Exact name of obligor as specified in its charter)
Florida 59-2449419
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
700 Universe Boulevard
Juno Beach, Florida 33408
(Address of principal executive offices) (Zip code)
-------------
Guarantee of Debt Securities
(Title of the indenture securities)
===============================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State 2 Rector Street, New York,
of New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
2
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 27th day of September, 1999.
THE BANK OF NEW YORK
By: /s/ MICHAEL CULHANE
------------------------
Name: MICHAEL CULHANE
Title: VICE PRESIDENT
<PAGE>
- -------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1999,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS In Thousands
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ............. $5,597,807
Interest-bearing balances ...................................... 4,075,775
Securities:
Held-to-maturity securities .................................... 785,167
Available-for-sale securities .................................. 4,159,891
Federal funds sold and Securities purchased under
agreements to resell ........................................... 2,476,963
Loans and lease financing receivables:
Loans and leases, net of unearned
income ............ 38,028,772
LESS: Allowance for loan and
lease losses ...... 568,617
LESS: Allocated transfer risk
reserve ............ 16,352
Loans and leases, net of unearned income,
allowance, and reserve ....................................... 37,443,803
Trading Assets .................................................... 1,563,671
Premises and fixed assets (including capitalized
leases) ........................................................ 683,587
Other real estate owned ........................................... 10,995
Investments in unconsolidated subsidiaries and
associated companies ........................................... 184,661
Customers' liability to this bank on acceptances
outstanding .................................................... 812,015
Intangible assets ................................................. 1,135,572
Other assets ...................................................... 5,607,019
-----------
Total assets ...................................................... $64,536,926
===========
<PAGE>
LIABILITIES
Deposits:
In domestic offices ............................................ $26,488,980
Noninterest-bearing ................... 10,626,811
Interest-bearing ...................... 15,862,169
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ....................................... 20,655,414
Noninterest-bearing ................... 156,471
Interest-bearing .................... 20,498,943
Federal funds purchased and Securities sold under
agreements to repurchase ....................................... 3,729,439
Demand notes issued to the U.S.Treasury ........................... 257,860
Trading liabilities ............................................... 1,987,450
Other borrowed money:
With remaining maturity of one year or less .................... 496,235
With remaining maturity of more than one year
through three years .......................................... 465
With remaining maturity of more than three years ............... 31,080
Bank's liability on acceptances executed and
outstanding .................................................... 822,455
Subordinated notes and debentures ................................. 1,308,000
Other liabilities ................................................. 2,846,649
-----------
Total liabilities ................................................. 58,624,027
===========
EQUITY CAPITAL
Common stock ...................................................... 1,135,284
Surplus ........................................................... 815,314
Undivided profits and capital reserves ............................ 4,001,767
Net unrealized holding gains (losses) on
available-for-sale securities ..................................( 7,956)
Cumulative foreign currency translation
adjustments ....................................................( 31,510)
-----------
Total equity capital .............................................. 5,912,899
-----------
Total liabilities and equity capital ...............................$64,536,926
===========
<PAGE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Reyni
Alan R. Griffith Directors
Gerald L. Hassell
- -------------------------------------------------------------------------------
Exhibit 25(b)
===============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
------------
FPL Group Capital Inc
(Exact name of obligor as specified in its charter)
Florida 59-2576416
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
700 Universe Boulevard
Juno Beach, Florida 33408
(Address of principal executive offices) (Zip code)
-------------
Debt Securities
(Title of the indenture securities)
===============================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State 2 Rector Street, New York,
of New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
2
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 27th day of September, 1999.
THE BANK OF NEW YORK
By: /s/ MICHAEL CULHANE
----------------------
Name: MICHAEL CULHANE
Title: VICE PRESIDENT
<PAGE>
- -------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1999,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS In Thousands
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ............. $5,597,807
Interest-bearing balances ...................................... 4,075,775
Securities:
Held-to-maturity securities .................................... 785,167
Available-for-sale securities .................................. 4,159,891
Federal funds sold and Securities purchased under
agreements to resell ........................................... 2,476,963
Loans and lease financing receivables:
Loans and leases, net of unearned
income ............ 38,028,772
LESS: Allowance for loan and
lease losses ...... 568,617
LESS: Allocated transfer risk
reserve ............ 16,352
Loans and leases, net of unearned income,
allowance, and reserve ....................................... 37,443,803
Trading Assets .................................................... 1,563,671
Premises and fixed assets (including capitalized
leases) ........................................................ 683,587
Other real estate owned ........................................... 10,995
Investments in unconsolidated subsidiaries and
associated companies ........................................... 184,661
Customers' liability to this bank on acceptances
outstanding .................................................... 812,015
Intangible assets ................................................. 1,135,572
Other assets ...................................................... 5,607,019
-----------
Total assets ...................................................... $64,536,926
===========
<PAGE>
LIABILITIES
Deposits:
In domestic offices ............................................ $26,488,980
Noninterest-bearing ................... 10,626,811
Interest-bearing ...................... 15,862,169
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ....................................... 20,655,414
Noninterest-bearing ................... 156,471
Interest-bearing .................... 20,498,943
Federal funds purchased and Securities sold under
agreements to repurchase ....................................... 3,729,439
Demand notes issued to the U.S.Treasury ........................... 257,860
Trading liabilities ............................................... 1,987,450
Other borrowed money:
With remaining maturity of one year or less .................... 496,235
With remaining maturity of more than one year
through three years .......................................... 465
With remaining maturity of more than three years ............... 31,080
Bank's liability on acceptances executed and
outstanding .................................................... 822,455
Subordinated notes and debentures ................................. 1,308,000
Other liabilities ................................................. 2,846,649
-----------
Total liabilities ................................................. 58,624,027
===========
EQUITY CAPITAL
Common stock ...................................................... 1,135,284
Surplus ........................................................... 815,314
Undivided profits and capital reserves ............................ 4,001,767
Net unrealized holding gains (losses) on
available-for-sale securities ..................................( 7,956)
Cumulative foreign currency translation
adjustments ....................................................( 31,510)
-----------
Total equity capital .............................................. 5,912,899
-----------
Total liabilities and equity capital ...............................$64,536,926
===========
<PAGE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Reyni
Alan R. Griffith Directors
Gerald L. Hassell
- -------------------------------------------------------------------------------
