Exhibit 1
FPL Group Capital Inc
Debentures
Absolutely and Unconditionally Guaranteed By
FPL Group, Inc.
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UNDERWRITING AGREEMENT
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[DATE]
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
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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 firms listed in Schedule I hereto (the "Representatives") are the same as the
firm or firms listed in Schedule II hereto, then the terms "Underwriters" and
"Representatives", as used herein, shall each be deemed to refer to such firm or
firms. The Representatives represent that they have been authorized by each
Underwriter to enter into this agreement on behalf of such Underwriter and to
act for it in the manner herein provided. All obligations of the Underwriters
hereunder are several and not joint. If more than one firm is named in Schedule
I hereto, any action under or in respect of this agreement may be taken by such
firms jointly as the Representatives or by one of the firms acting on behalf of
the Representatives and such action will be binding upon all the Underwriters.
2. Description of Debentures and Guarantee. The Debentures [of each
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series] will be a series of debentures issued by FPL Group Capital under an
Indenture, dated as of June 1, 1999, to The Bank of New York, as Trustee, in
substantially the form heretofore delivered to the Representatives (together
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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
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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. 333-87941 and 333-87941-01"), 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, if any, by FPL Group (the "429 Debt Securities"), under
the Securities Act of 1933, as amended (the "Securities Act"), which
registration statement has been declared effective by the Commission.
All but $100,000,000 aggregate principal amount of the 429 Debt
Securities have been previously issued. In addition, FPL Group Capital
and FPL Group filed with the Commission a registration statement on
Form S-3, including a prospectus ("Registration Statement Nos.
333- and 333- -01"), for the registration of an additional
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$400,000,000 aggregate principal amount of FPL Group Capital debt
securities, which are guaranteed as to payment of principal, interest
and premium, if any, by FPL Group (together with the 429 Debt
Securities which remain unissued, the "Debt Securities"), 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
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and Registration Statement Nos. 333-87941 and 333-87941-01, each as
amended or supplemented to such date, including, as of such date, all
documents incorporated by reference therein pursuant to Item 12 of
Form S-3 ("Incorporated Documents"). References herein to the term
"Prospectus" as of any given date shall mean the combined prospectus
forming a part of Registration Statement Nos. 333- and
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333- -01, as supplemented by a prospectus supplement relating to
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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
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the time and date of the filing thereafter of FPL Group's most recent
Annual Report on Form 10-K, if such filing is made prior to the
Closing Date (as hereinafter defined). Prior to the termination of the
offering of the Debentures and Guarantee, FPL Group Capital will not
file any amendment to the Registration Statement or any amendment or
supplement to the Prospectus without prior notice to the
Representatives, and to Winthrop, Stimson, Putnam & Roberts, who are
acting as Counsel for the several Underwriters ("Counsel for the
Underwriters"), or any such amendment or supplement to which the
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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. Neither the
execution and delivery of the Debentures nor the performance by FPL
Group Capital of its obligations thereunder requires any consent,
approval, authorization, registration or qualification of or by any
governmental agency or body other than those consents, approvals,
authorizations, registrations or qualifications as have already been
obtained.
(d) The consummation of the transactions herein contemplated and
the fulfillment of the terms hereof and the compliance by FPL Group
Capital with all the terms and provisions of the Indenture will not
result in a breach of any of the terms or provisions of, or constitute
a default under, the FPL Group Capital Charter or by-laws, or any
indenture, mortgage, deed of trust or other agreement or instrument to
which FPL Group Capital is now a party, or violate any law or any
order, rule, decree or regulation applicable to FPL Group Capital of
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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
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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 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
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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, whether or not in the ordinary course
of business, nor has any transaction been entered into by FPL Group or
any of its subsidiaries that is material to FPL Group and its
subsidiaries taken as a whole, other than changes and transactions
contemplated by the Registration Statement and Prospectus, and
transactions in the ordinary course of business. FPL Group and its
subsidiaries have no contingent obligation material to FPL Group and
its subsidiaries taken as a whole, which is not disclosed in the
Registration Statement and Prospectus.
(e) The consummation of the transactions herein contemplated and
the fulfillment of the terms hereof on the part of FPL Group to be
fulfilled have been duly authorized by all necessary corporate action
of FPL Group in accordance with the provisions of its Articles of
Incorporation (the "FPL Group Charter"), by-laws and applicable law,
and the Guarantee when issued and delivered as provided herein will
constitute a valid and binding obligation of FPL Group enforceable in
accordance with its terms, except as limited or affected by
bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws affecting creditors' rights and remedies generally and
general principles of equity. Neither the execution and delivery of
the Guarantee nor the performance by FPL Group of any of its
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obligations thereunder requires any consent, approval, authorization,
registration or qualification of or by any governmental agency or body
other than those consents, approvals, authorizations, registrations or
qualifications as have already been obtained.
(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 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.
(h) Each of FPL Group's direct and indirect significant
subsidiaries (as defined in Regulation S-X) has been duly
incorporated, is validly existing and is in good standing under the
laws of its respective jurisdiction of incorporation, and is duly
qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its respective ownership of
properties or the conduct of its respective businesses requires such
qualification, except where the failure so to qualify would not have a
material adverse effect on the business, properties or financial
condition of FPL Group and its subsidiaries taken as a whole, and has
the corporate power and authority necessary to own or hold its
respective properties and to conduct the businesses in which it is
engaged.
5. Purchase and Sale. On the basis of the representations and
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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
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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.
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7. Time and Place of Closing, Default of Underwriter. Delivery of
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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 the series as to which
there is a default and which are] set forth opposite the name of such remaining
Underwriter in said Schedule II, and such remaining Underwriters shall have the
right, within 24 hours of receipt of such notice, either to take up and pay for
(in such proportion as may be agreed upon among them), or to substitute another
Underwriter or Underwriters, satisfactory to FPL Group Capital, to take up and
pay for, the remaining principal amount of the Debentures [of each series] which
the defaulting Underwriter or Underwriters agreed but failed to purchase. If any
unpurchased Debentures still remain, then FPL Group Capital shall be entitled to
a further period of 24 hours within which to procure another party or other
parties, members of the National Association of Securities Dealers, Inc. (or, if
not members of such Association, who are not eligible for membership in said
Association and who agree (i) to make no sales within the United States, its
territories or its possessions or to persons who are citizens thereof or
residents therein and (ii) in making sales to comply with said Association's
Conduct Rules) and satisfactory to the Representatives to purchase such
Debentures on the terms herein set forth. In the event that, within the
respective prescribed periods, the non-defaulting Underwriters notify FPL Group
Capital that they have arranged for the purchase of such Debentures, or FPL
Group Capital notifies the non-defaulting Underwriters that it has arranged for
the purchase of such Debentures, the non-defaulting Underwriters or FPL Group
Capital shall have the right to postpone the Closing Date for a period of not
more than three full business days beyond the expiration of the respective
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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
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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 notice prior to the termination of the offering of the
Debentures and Guarantee 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
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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 and expenses (including fees and
expenses of counsel) in the aggregate not exceeding $5,000, provided
that neither FPL Group Capital nor FPL Group shall be required to
qualify as a foreign corporation or dealer in securities, or to file
any consents to service of process under the laws of any jurisdiction,
or to meet other requirements deemed by FPL Group Capital or FPL Group
to be unduly burdensome.
(f) FPL Group will make generally available to its security
holders (including holders of the Debentures), as soon as practicable,
an earnings statement (which need not be audited, unless required so
to be under Section 11(a) of the Securities Act) of FPL Group in
reasonable detail covering the 12 months beginning not later than the
first day of the quarter next succeeding the month in which occurred
the effective date of the Registration Statement as defined in Rule
158 under the Securities Act.
9. Conditions of Underwriters' Obligations. The several obligations
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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:
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(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;
(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
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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 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;
(vii) the Registration Statement, at the Effective Date, and
the Prospectus, at the 424 Date (except as to the financial
statements and other financial or statistical data contained or
incorporated by reference therein, upon which such opinion need
not pass and except for those parts of the Registration Statement
that constitute the Statements of Eligibility on Form T-1, upon
which such opinion need not pass), complied as to form in all
material respects with the applicable requirements of the
Securities Act and the applicable instructions, rules and
regulations of the Commission thereunder and the Incorporated
Documents (except as to the financial statements and other
financial or statistical data contained or incorporated by
reference therein, upon which such opinion need not pass), at the
time they were filed with the Commission, complied as to form in
all material respects with the applicable requirements of the
Exchange Act and the applicable instructions, rules and
regulations of the Commission thereunder; the Registration
Statement has become, and is, at the Closing Date, effective
under the Securities Act, and to the best of the knowledge of
said counsel, no proceedings for a stop order with respect to the
Registration Statement are pending or threatened under Section 8
of the Securities Act;
(viii) the consummation of the transactions herein
contemplated and the fulfillment of the terms hereof and the
compliance by FPL Group Capital with all the terms and provisions
of the Indenture, and by FPL Group with all the terms and
provisions of the Guarantee, will not result in a breach of any
of the terms or provisions of, or constitute a default under, the
FPL Group Capital Charter or by-laws or the FPL Group Charter or
by-laws, or any indenture, mortgage, deed of trust or other
agreement or instrument the terms of which are known to such
counsel to which FPL Group Capital or FPL Group or any of their
respective subsidiaries, as the case may be, is now a party,
except where such breach or default would not have a material
adverse effect on the business, properties or financial condition
of FPL Group Capital or FPL Group, each together with its
respective subsidiaries taken as a whole, as the case may be;
(ix) nothing has come to the attention of said counsel that
would lead them to believe that the Registration Statement
(except as to the financial statements and other financial or
statistical data contained or incorporated by reference therein,
upon which such opinion need not pass and except for those parts
of the Registration Statement that constitute the Statements of
Eligibility on Form T-1, upon which such opinion need not pass),
at the Effective Date, contained any untrue statement of a
material fact or omitted to state a material fact required to be
11
<PAGE>
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 and other
than those that have been obtained) is legally required for the
authorization of the issuance and sale of the Debentures [of any
series] and Guarantee;
(xi) the statements made in the Prospectus under the
headings "Description of Offered Debt Securities", "Certain Terms
of the Debentures" and "Description of the Guarantee", insofar as
they purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects;
(xii) the Indenture and the Guarantee are duly qualified
under the 1939 Act;
(xiii) this agreement has been duly and validly authorized,
executed and delivered by FPL Group Capital and FPL Group; and
(xiv) except as stated or referred to in the Prospectus,
there are no material pending legal proceedings to which FPL
Group Capital or any of its subsidiaries or FPL Group or any of
its subsidiaries is a party or of which property of FPL Group
Capital or any of its subsidiaries or FPL Group or any of its
subsidiaries is the subject which if determined adversely would
have a material effect on FPL Group Capital and its subsidiaries
taken as a whole or FPL Group and its subsidiaries taken as a
whole, as the case may be, and, to the best of the knowledge of
said counsel, no such proceeding is known to be contemplated by
governmental authorities.
In said opinion such counsel may rely as to all matters of New
York law on an opinion of 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
12
<PAGE>
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), (ix) and (xi)-(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 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
13
<PAGE>
sheet incorporated by reference in the Prospectus, except in all
instances for changes or decreases which the Prospectus discloses have
occurred or may occur, or as occasioned by the declaration, provision
for, or payment of dividends, or as occasioned by the sale of common
stock pursuant to any employee benefit plan or the dividend
reinvestment plan or the repurchase of common stock by FPL Group or
which are described in such letter; (c) for the period from the date
of the most recent condensed consolidated balance sheet incorporated
by reference in the Prospectus to the latest available interim balance
sheet read by them and for the period from the date of the latest
available interim balance sheet read by them to a specified date not
more than five days prior to the Closing Date, there were any
decreases, as compared with the corresponding period in the preceding
year, in total consolidated operating revenues or in net income,
except in all instances for decreases which the Prospectus discloses
have occurred or may occur, or which are described in such letter; and
(iv) they have carried out certain procedures and made certain
findings, as specified in such letter, with respect to certain amounts
included in the Prospectus and Exhibit 12 to the Registration
Statement and such other items as the Representatives may reasonably
request.
(f) Since the respective most recent dates as of which
information is given in the Registration Statement and Prospectus, and
up to the Closing Date, (i) there shall have been no material adverse
change in the business, properties or financial condition of (a) FPL
Group Capital and its subsidiaries taken as a whole or (b) FPL Group
and its subsidiaries taken as a whole, except in each case as
reflected in or contemplated by the Registration Statement and
Prospectus, and (ii) there shall have been no material transaction
entered into by (a) FPL Group Capital or any of its subsidiaries that
is material to FPL Group Capital and its subsidiaries taken as a whole
or (b) FPL Group or any of its subsidiaries that is material to FPL
Group and its subsidiaries taken as a whole, in each case other than
transactions disclosed by the Registration Statement and the
Prospectus, and transactions in the ordinary course of business; and
at the Closing Date, the Representatives shall have received a
certificate to such effect from each of FPL Group Capital and FPL
Group signed by an officer of FPL Group Capital or FPL Group, as the
case may be.
(g) All legal proceedings to be taken in connection with the
issuance and sale of the Debentures and the Guarantee shall have been
satisfactory in form and substance to Counsel for the Underwriters.
In case any of the conditions specified above in this Section 9 shall
not have been fulfilled, this agreement may be terminated by the
Representatives, upon mailing or delivering written notice thereof to FPL Group
Capital. Any such termination shall be without liability of any party to any
other party except as otherwise provided in subsections (c) and (e) of Section 8
hereof and except that in the event of such termination by the Representatives,
FPL Group Capital shall reimburse the Underwriters for out-of-pocket expenses
reasonably incurred by them in connection with the transactions contemplated by
this agreement, not in excess, however, of an aggregate of $5,000.
14
<PAGE>
10. Condition of FPL Group Capital's and FPL Group's Obligations. The
------------------------------------------------------------
obligation of FPL Group Capital to deliver the Debentures and the obligation of
FPL Group to deliver the Guarantee shall be subject to the following condition:
(a) No stop order suspending the effectiveness of the
Registration Statement, and no order directed to the adequacy of any
Incorporated Document, shall be in effect at the Closing Date, and no
proceedings for either such purpose shall be pending before, or
threatened by, the Commission on such date.
In case the condition specified in this Section 10 shall not have been
fulfilled, this agreement may be terminated by FPL Group Capital and FPL Group
upon mailing or delivering written notice thereof to the Representatives. Any
such termination shall be without liability of any party to any other party,
except as otherwise provided in subsections (c) and (e) of Section 8 hereof and
except that in the event of such termination FPL Group Capital shall reimburse
the Underwriters for out-of-pocket expenses reasonably incurred by them in
connection with the transactions contemplated by this agreement, not in excess,
however, of an aggregate of $5,000.
11. Indemnification.
---------------
(a) FPL Group Capital and FPL Group, jointly and severally, agree
to indemnify and hold harmless each Underwriter and each person who
controls any Underwriter within the meaning of Section 15 of the
Securities Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Securities Act or any other statute or common law
and to reimburse each such Underwriter and controlling person for any
legal or other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or liabilities or in
connection with defending any actions, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus (if used prior to the
Effective Date of the Registration Statement), including all
Incorporated Documents, or in the Registration Statement or the
Prospectus, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the
indemnity agreement contained in this paragraph shall not apply to any
such losses, claims, damages, liabilities, expenses or actions arising
out of, or based upon, any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, if such statement
or omission was made in reliance upon and in conformity with
information furnished herein, to FPL Group Capital or to FPL Group in
writing by or on behalf of any Underwriter, through the
Representatives, for use in connection with the preparation of the
Registration Statement or the Prospectus or any amendment or
supplement to either thereof, or arising out of, or based upon,
statements in or omissions from the Statements of Eligibility on Form
T-1 of the respective Trustees under the Indenture and the Guarantee;
and provided, further, that the indemnity agreement contained in this
paragraph in respect of any preliminary prospectus shall not inure to
the benefit of any Underwriter (or of any person controlling such
Underwriter) on account of any such losses, claims, damages,
15
<PAGE>
liabilities, expenses or actions arising from the sale of the
Debentures [of any series] to any person if such Underwriter shall
have failed to send or give to such person (i) with or prior to the
written confirmation of such sale, a copy of the Prospectus or the
Prospectus as amended or supplemented, if any amendments or
supplements thereto shall have been furnished at or prior to the time
of written confirmation of the sale involved, but exclusive of any
Incorporated Documents, unless the alleged omission or alleged untrue
statement with respect to such preliminary prospectus is not corrected
in the Prospectus or the Prospectus as amended or supplemented at the
time of confirmation, or (ii) with or prior to the delivery of such
Debentures to such person, a copy of any amendment or supplement to
the Prospectus which shall have been furnished subsequent to such
written confirmation and prior to the delivery of such Debentures to
such person, but exclusive of any Incorporated Documents, unless the
alleged omission or alleged untrue statement with respect to such
preliminary prospectus was not corrected in such amendment or
supplement at the time of such delivery of such Debentures. The
indemnity agreement of FPL Group Capital and FPL Group contained in
this paragraph and the representations and warranties of FPL Group
Capital and FPL Group contained in Section 3 and Section 4 hereof,
respectively, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any
Underwriter or any such controlling person, and shall survive the
delivery of the Debentures [of each series]. The Underwriters agree
promptly to notify each of FPL Group Capital and FPL Group, and each
other Underwriter, of the commencement of any litigation or
proceedings against them or any of them or any such controlling person
in connection with the issuance and sale of the Debentures [of any
series].
(b) Each Underwriter agrees to indemnify and hold harmless each
of FPL Group Capital and FPL Group, their respective officers and
directors, each other Underwriter, and each person who controls any
thereof within the meaning of Section 15 of the Securities Act against
any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Securities
Act or other statute or common law, and to reimburse each of them for
any legal or other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or liabilities, or in
connection with defending any actions, insofar as such losses, claims,
damages, liabilities, expenses or actions arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus or the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading if such statement or omission was made in reliance upon and
in conformity with information furnished herein, to FPL Group Capital
or FPL Group in writing by or on behalf of such Underwriter, through
the Representatives or otherwise, for use in connection with the
preparation of the Registration Statement or the Prospectus or any
amendment or supplement to any thereof. The indemnity agreement of the
respective Underwriters contained in this paragraph shall remain
operative and in full force and effect, regardless of any
investigation made by or on behalf of FPL Group Capital, FPL Group or
any of its officers or directors or any such other Underwriter or any
such controlling person, and shall survive the delivery of the
16
<PAGE>
Debentures [of each series]. FPL Group Capital and FPL Group agree
promptly to notify the Representatives of the commencement of any
litigation or proceedings against FPL Group Capital, FPL Group (or any
controlling person of either thereof) or any of its officers or
directors in connection with the issuance and sale of the Debentures
[of any series].
(c) FPL Group Capital, FPL Group and the several Underwriters
each agree that, upon the receipt of notice of the commencement of any
action against it, its officers and directors, or any person
controlling it as aforesaid, in respect of which indemnity may be
sought on account of any indemnity agreement contained herein, it will
promptly give written notice of the commencement thereof to the party
or parties against whom indemnity shall be sought thereunder, but the
omission so to notify such indemnifying party or parties of any such
action shall not relieve such indemnifying party or parties from any
liability which it or they may have to the indemnified party otherwise
than on account of such indemnity agreement. In case such notice of
any such action shall be so given, such indemnifying party shall be
entitled to participate at its own expense in the defense or, if it so
elects, to assume (in conjunction with any other indemnifying parties)
the defense of such action, in which event such defense shall be
conducted by counsel chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall be
defendant or defendants in such action, and such defendant or
defendants shall bear the fees and expenses of any additional counsel
retained by them; but if the indemnifying party shall elect not to
assume the defense of such action, such indemnifying party will
reimburse such indemnified party or parties for the reasonable fees
and expenses of any counsel retained by them; provided, however, if
the defendants in any such action include both the indemnified party
and the indemnifying party and counsel for the indemnifying party
shall have reasonably concluded that there may be a conflict of
interest involved in the representation by such counsel of both the
indemnifying party and the indemnified party, the indemnified party or
parties shall have the right to select separate counsel, satisfactory
to the indemnifying party, to participate in the defense of such
action on behalf of such indemnified party or parties at the expense
of the indemnifying party (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than
one separate counsel representing the indemnified parties who are
parties to such action).
12. Termination. This agreement may be terminated by the
-----------
Representatives by delivering written notice thereof to FPL Group Capital, at
any time prior to the Closing Date if (a) after the date hereof and at or prior
to the Closing Date there shall have occurred any general suspension of trading
in securities on the New York Stock Exchange, Inc. or there shall have been
established by the New York Stock Exchange, Inc. or by the Commission or by any
federal or state agency or by the decision of any court any limitation on prices
for such trading or any restrictions on the distribution of securities, or a
general banking moratorium declared by New York or federal authorities, or (b)
there shall have occurred any new outbreak of hostilities, including, but not
limited to, an escalation of hostilities which existed prior to the date of this
agreement or other national or international calamity or crisis, the effect of
any such event specified in (a) or (b) above on the financial markets of the
United States shall be such as to make it impracticable for the Underwriters to
enforce contracts for the sale of the Debentures [of any series]. This agreement
17
<PAGE>
may also be terminated at any time prior to the Closing Date if in the judgment
of the Representatives the subject matter of any amendment or supplement to the
Registration Statement or the Prospectus prepared and furnished by FPL Group
Capital or FPL Group reflects a material adverse change in the business,
properties or financial condition of FPL Group Capital and its subsidiaries
taken as a whole or FPL Group and its subsidiaries taken as a whole which
renders it either inadvisable to proceed with such offering, if any, or
inadvisable to proceed with the delivery of the Debentures [of any series] to be
purchased hereunder. Any termination of this agreement pursuant to this Section
12 shall be without liability of any party to any other party except as
otherwise provided in subsections (c) and (e) of Section 8 hereof.
13. Miscellaneous. The validity and interpretation of this agreement
-------------
shall be governed by the laws of the State of New York. This agreement shall
inure to the benefit of FPL Group Capital, FPL Group, the several Underwriters
and, with respect to the provisions of Section 11 hereof, each officer, director
or controlling person referred to in said Section 11, and their respective
successors. Nothing in this agreement is intended or shall be construed to give
to any other person, 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.
18
<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 on behalf of the other several Underwriters
referred to in the foregoing agreement.
19
<PAGE>
SCHEDULE I
Underwriting Agreement dated , 2000
----------- ----
Registration Statement Nos. 333-87941, 333-87941-01, 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, Time and Location:
<PAGE>
SCHEDULE II
Principal Amount of
% Debentures
----
Underwriter Series due
----------- --------------------
TOTAL $
