EXHIBIT 4(ba)
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PREFERRED TRUST SECURITIES GUARANTEE AGREEMENT
between
FPL GROUP, INC.,
as Guarantor
and
THE BANK OF NEW YORK,
as Guarantee Trustee
Relating to FPL GROUP [/2/ CAPITAL] TRUST __
Dated as of __________, 200_
__________________
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1 For use in connection with Junior Subordinated Debentures of FPL Group, Inc.
2 For use in connection with Junior Subordinated Debentures of FPL Group
Capital Inc
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions..................................................1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01 Trust Indenture Act; Application.............................4
SECTION 2.02 Lists of Holders of Preferred Trust Securities...............4
SECTION 2.03 Reports by the Guarantee Trustee.............................4
SECTION 2.04 Periodic Reports to Guarantee Trustee........................4
SECTION 2.05 Evidence of Compliance with Conditions Precedent.............5
SECTION 2.06 Events of Default; Waiver....................................5
SECTION 2.07 Event of Default; Notice.....................................5
SECTION 2.08 Conflicting Interests........................................5
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.01 Powers and Duties of the Guarantee Trustee....................6
SECTION 3.02 Certain Rights of the Guarantee Trustee.......................7
SECTION 3.03 Not Responsible for Recitals or Issuance of Guarantee.........9
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.01 Guarantee Trustee; Eligibility................................9
SECTION 4.02 Compensation, Reimbursement and Indemnity....................10
SECTION 4.03 Appointment, Removal and Resignation of Guarantee Trustee....11
ARTICLE V
GUARANTEE
SECTION 5.01 Guarantee....................................................11
SECTION 5.02 Waiver of Notice and Demand..................................11
SECTION 5.03 Obligations Not Affected.....................................12
SECTION 5.04 Rights of Holders............................................12
SECTION 5.05 Guarantee of Payment.........................................13
(i)
SECTION 5.06 Subrogation..................................................13
SECTION 5.07 Independent Obligations......................................13
ARTICLE VI
SUBORDINATION
SECTION 6.01 Subordination................................................13
ARTICLE VII
TERMINATION
SECTION 7.01 Termination..................................................14
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Successors and Assigns.......................................14
SECTION 8.02 Amendments...................................................14
SECTION 8.03 Notices......................................................14
SECTION 8.04 Benefit......................................................16
SECTION 8.05 Interpretation...............................................16
SECTION 8.06 Governing Law................................................16
SECTION 8.07 Counterparts.................................................16
(ii)
CROSS-REFERENCE TABLE*
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
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310(a)...................................................................4.01(a)
310(b).............................................................4.01(c), 2.08
310(c)..............................................................Inapplicable
311(a)...................................................................2.02(b)
311(b)...................................................................2.02(b)
311(c)..............................................................Inapplicable
312(a)...................................................................2.02(a)
312(b)...................................................................2.02(b)
313.........................................................................2.03
314(a)......................................................................2.04
314(b)..............................................................Inapplicable
314(c)......................................................................2.05
314(d)..............................................................Inapplicable
314(e)................................................................1.01,2.05,
3.02
314(f)......................................................................2.01
315(a)................................................................3.01, 3.02
315(b)......................................................................2.07
315(c)......................................................................3.01
315(d)...................................................................3.01(c)
315(e)...................................................................2.01(a)
316(a)................................................................5.04, 2.06
316(b).............................................................2.06(b), 5.03
316(c)......................................................................8.01
317(a)..............................................................Inapplicable
317(b)..............................................................Inapplicable
318(a)...................................................................2.01(b)
318(b)......................................................................2.01
318(c)...................................................................2.01(a)
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* This Cross-Reference Table does not constitute part of the Preferred Trust
Securities Guarantee Agreement and shall not affect the interpretation of
any of its terms or provisions.
(iii)
This PREFERRED TRUST SECURITIES GUARANTEE AGREEMENT ("Guarantee
Agreement"), dated as of __________, 200_, is executed and delivered by FPL
Group, Inc., a Florida corporation (the "Guarantor"), and The Bank of New York,
as trustee (the "Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Preferred Trust Securities (as defined herein,
the "Securities") of FPL Group [/2/ Capital] Trust __, a Delaware statutory
trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of __________, 200_, among the Trustees named
therein, FPL Group, Inc., as Depositor and the several Holders (as defined
therein), the Issuer is issuing as of the date hereof $__________ aggregate
Liquidation Amount of its ____% Preferred Trust Securities (the "Preferred Trust
Securities") representing undivided beneficial interests in the assets of the
Issuer and having the terms set forth in the Trust Agreement;
WHEREAS, the Preferred Trust Securities are to be issued for sale by
the Issuer and the proceeds thereof, together with the proceeds from the
issuance of the Issuer's Common Trust Securities (as defined herein) are to be
invested in $__________ principal amount of Debentures (as defined in the Trust
Agreement) of the Debenture Issuer (as defined in the Trust Agreement), which
Debentures will be deposited with The Bank of New York, as Property Trustee
under the Trust Agreement, as trust assets; and
WHEREAS, as an incentive for Holders to purchase Preferred Trust
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth herein, to pay to the Holders the Guarantee Payments (as
defined herein) and to make certain other payments on the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the purchase of Preferred Trust
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee Agreement for the
benefit of the Holders from time to time.
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. As used in this Guarantee Agreement, the
terms set forth below shall, unless the context otherwise requires, have the
following meanings. Capitalized or otherwise defined terms used but not
otherwise defined herein shall have the meanings assigned to such terms in the
Trust Agreement as in effect on the date hereof.
"AUTHORIZED OFFICER" means the Chairman of the Board, the President,
any Vice President, the Treasurer, any Assistant Treasurer, or any other officer
or agent of the Guarantor duly authorized by the Board of Directors of the
Guarantor to act in respect of matters relating to this Guarantee Agreement.
"COMMON TRUST SECURITIES" means the common securities representing
undivided beneficial interests in the assets of the Issuer that will be issued
to FPL Group, Inc., as Depositor and has the terms set forth in the Trust
Agreement.
"EVENT OF DEFAULT" means a default by the Guarantor on any of its
payment obligations under this Guarantee Agreement; provided, however, that,
except with respect to a default in payment of any Guarantee Payments, the
Guarantor shall have received notice of default from the Guarantee Trustee or
any Holder (with a copy to the Guarantee Trustee) and shall not have cured such
default within 90 days after receipt of such notice, unless the Holder shall
agree in writing to an extension of such period prior to its expiration;
provided, however, that such Holder shall be deemed to have agreed to an
extension of such period if corrective action is initiated by the Guarantee
Trustee within such period and is being diligently pursued.
"GUARANTEE PAYMENTS" means the following payments or distributions,
without duplication, with respect to the Preferred Trust Securities, to the
extent not paid or made by or on behalf of the Issuer, or for which payment has
not been provided: (i) any accrued and unpaid Distributions that are required to
be paid on such Preferred Trust Securities but only if and to the extent that
the Property Trustee has available in the Payment Account funds legally
available and sufficient to make such payment at such time, (ii) the redemption
price (the "Redemption Price"), and all accrued and unpaid Distributions to the
date of redemption, with respect to the Preferred Trust Securities called for
redemption by the Issuer but only if and to the extent that the Property Trustee
has available in the Payment Account funds legally available and sufficient to
make such payment, and (iii) upon a voluntary or involuntary dissolution,
winding-up or termination of the Issuer (other than in connection with the
distribution of Debentures to the Holders in exchange for Preferred Trust
Securities as provided in the Trust Agreement or upon a redemption of all of the
Preferred Trust Securities upon maturity or redemption of the Debentures as
provided in the Trust Agreement), the lesser of (a) the aggregate of the
Liquidation Amount of all Preferred Trust Securities and all accrued and unpaid
Distributions on the Preferred Trust Securities to the date of payment but only
if and to the extent that the Property Trustee has legally available in the
Payment Account funds sufficient to make such payment at such time, and (b) the
amount of assets of the Issuer remaining legally available for distribution to
Holders in liquidation of the Issuer after satisfaction of liabilities to
creditors of the Issuer as required by applicable law (in either case, the
"Liquidation Distribution"), provided that any merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease permitted under Section
9.05 of the Trust Agreement shall not be deemed a voluntary or involuntary
dissolution, winding-up or termination of the Issuer for purposes of clause
(iii) hereof.
"GUARANTEE TRUSTEE" means The Bank of New York, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee Agreement and thereafter means each such
Successor Guarantee Trustee.
"HOLDER" means a Person in whose name a Preferred Trust Security or
Preferred Trust Securities is registered in the Securities Register; provided,
however, that in determining whether the holders of the requisite percentage of
Preferred Trust Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor or any Affiliate of the
Guarantor.
"MAJORITY IN LIQUIDATION AMOUNT OF THE PREFERRED TRUST SECURITIES"
means a vote by Holders, voting separately as a class, of more than 50% of the
aggregate Liquidation Amount of all then outstanding Preferred Trust Securities.
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"OFFICER'S CERTIFICATE" means a certificate signed by an Authorized
Officer of the Guarantor, and delivered to the Guarantee Trustee. Any Officer's
Certificate or Opinion of Counsel delivered with respect to compliance with a
condition or covenant provided for in this Guarantee Agreement shall include:
(a) a statement that the officer or counsel signing the Officer's
Certificate or the Opinion of Counsel has read the covenant or
condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by such officer or counsel in rendering
the Officer's Certificate or the Opinion of Counsel;
(c) a statement that such officer or counsel has made such
examination or investigation as, in such officer's or counsel's
opinion, is necessary to enable such officer or counsel to express an
informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of such officer or
counsel, such condition or covenant has been complied with.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for the Guarantee Trustee, the Guarantor or an Affiliate of the
Guarantor, or an employee of any thereof, and who shall be reasonably acceptable
to the Guarantee Trustee. Any Opinion of Counsel pertaining to income tax
matters may rely on published rulings of the Internal Revenue Service.
"RESPONSIBLE OFFICER" means, with respect to the Guarantee Trustee, any
vice-president, any assistant vice-president, any assistant secretary, any
assistant treasurer, any trust officer or assistant trust officer or any other
officer of the Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Guarantee Agreement.
"SUBORDINATED INDENTURE" means the Indenture (For Unsecured
Subordinated Debt Securities relating to Trust Securities) dated as of [/1/
________] [/▇/ ▇▇▇▇▇ ▇, ▇▇▇▇], ▇▇▇▇▇ ▇▇▇ Group, Inc. [/2/, as guarantor, the
Debenture Issuer] and The Bank of New York, as trustee pursuant to which the
Debentures are issued, together with any indenture supplemental thereto.
"SUCCESSOR GUARANTEE TRUSTEE" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.01.
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ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01 TRUST INDENTURE ACT; APPLICATION. (a) This Guarantee
Agreement is subject to the provisions of the Trust Indenture Act that are
required or deemed to be part of this Guarantee Agreement and shall, to the
extent applicable, be governed by such provisions; and
(b) If and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 2.02 LISTS OF HOLDERS OF PREFERRED TRUST SECURITIES. (a) The
Guarantor shall furnish or cause to be furnished to the Guarantee Trustee (a)
semiannually, not later than __________ and __________ in each year, commencing
__________, 200_, a list, in such form as the Guarantee Trustee may reasonably
require, of the names and addresses of the Holders of Preferred Trust Securities
("List of Holders") as of a date not more than 15 days prior to the delivery
thereof, and (b) at such other times as the Guarantee Trustee may request in
writing, within 30 days after the receipt by the Guarantor and the Issuer of any
such request, a List of Holders as of a date not more than 15 days prior to the
time such list is furnished; provided that, the Guarantor shall not be obligated
to provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Guarantee Trustee by the
Guarantor or the Issuer; and provided, further, that the Guarantor shall not be
obligated to provide such List of Holders so long as the Guarantee Trustee shall
be the Security Registrar. The Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under
Section 311(a) of the Trust Indenture Act, subject to the provisions of Sections
311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.03 REPORTS BY THE GUARANTEE TRUSTEE. Within 60 days after
each ___________, commencing ___________, 200_, the Guarantee Trustee shall
provide to the Holders such reports, if any, as are required by Section 313(a)
of the Trust Indenture Act in the form and in the manner provided by Section
313(a) of the Trust Indenture Act. Any such report shall be dated as of the next
preceding ___________. The Guarantee Trustee shall also comply with the other
requirements of Section 313 of the Trust Indenture Act.
SECTION 2.04 PERIODIC REPORTS TO GUARANTEE TRUSTEE. The Guarantor shall
provide to the Guarantee Trustee, the Securities and Exchange Commission and the
Holders such documents, reports and information, if any, as required by Section
314 of the Trust Indenture Act and shall deliver to the Guarantee Trustee the
compliance certificate required by Section 314(a)(4) of the Trust Indenture Act,
each, in the form, in the manner and at the times required by Section 314 of the
Trust Indenture Act.
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SECTION 2.05 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. The
Guarantor shall provide to the Guarantee Trustee such evidence of compliance
with any conditions precedent provided for in this Guarantee Agreement as and to
the extent required by Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c) of the Trust Indenture Act may be given in the form of an Officer's
Certificate.
SECTION 2.06 EVENTS OF DEFAULT; WAIVER. (a) The Holders of a Majority
in Liquidation Amount of Preferred Trust Securities may, by vote, on behalf of
all of the Holders, waive any past Event of Default and its consequences. Upon
such waiver, any such Event of Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Guarantee Agreement, but no such waiver shall extend to any subsequent
or other default or Event of Default or impair any right consequent thereon.
(b) The right of any Holder to receive payment of the Guarantee
Payments in accordance with this Guarantee Agreement, or to institute suit for
the enforcement of any such payment, shall not be impaired without the consent
of each such Holder.
SECTION 2.07 EVENT OF DEFAULT; NOTICE. (a) The Guarantee Trustee shall,
within 90 days after the occurrence of an Event of Default, transmit by mail,
first class postage prepaid, to the Holders, a notice of such Event or Events of
Default known to the Guarantee Trustee, unless such default shall have been
cured or waived before the giving of such notice, provided that, except in the
case of a default in the payment of a Guarantee Payment, the Guarantee Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors or
Responsible Officers of the Guarantee Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders.
(b) The Guarantee Trustee shall not be charged with knowledge of any
Event of Default unless either (1) a Responsible Officer of the Guarantee
Trustee shall have actual knowledge of the Event of Default or (2) a written
notice of such Event of Default shall have been given to the Guarantee Trustee
by the Guarantor, the Issuer or by any Holder.
SECTION 2.08 CONFLICTING INTERESTS. To the extent permitted by the
Trust Indenture Act, the Guarantee Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under the Indenture, dated as
of June 1, 1999, between FPL Group Capital Inc and The Bank of New York, as
trustee, the Guarantee Agreement, dated as of June 1, 1999, between the
Guarantor and The Bank of New York, as guarantee trustee, the Purchase Contract
Agreement, dated as of February 1, 2002, between the Guarantor and The Bank of
New York, as purchase contract agent, attorney-in-fact and trustee, the Purchase
Contract Agreement, dated as of June 1, 2002, between the Guarantor and The Bank
of New York, as purchase contract agent, attorney-in-fact and trustee, the Trust
Agreement, the Subordinated Indenture, dated as of ▇▇▇▇▇ ▇, ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ Group Capital Inc and The Bank of New York, as trustee, the
Preferred Trust Securities Guarantee Agreement, dated as of March 15, 2004,
among the Guarantor and The Bank of New York, as guarantee trustee, the Amended
and Restated Trust Agreement, dated as of March 15, 2004, among the Guarantor,
as depositor, The Bank of New York, as property trustee, The Bank of New York
(Delaware), as Delaware trustee, the administrative trustees named therein and
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several holders of trust securities, the Preferred Trust Securities Guarantee
Agreement, dated as of March 15, 2004, between the Guarantor, as guarantor and
The Bank of New York, as guarantee trustee, the Trust Agreement, the
Subordinated Indenture and such agreements, guarantees, and the securities of
any series issued thereunder shall be deemed to be specifically described in
this Guarantee Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.01 POWERS AND DUTIES OF THE GUARANTEE TRUSTEE. (a) This
Guarantee Agreement shall be held by the Guarantee Trustee for the benefit of
the Holders, and the Guarantee Trustee shall not transfer this Guarantee
Agreement or any rights hereunder to any Person except a Holder exercising his
or her rights pursuant to Section 5.04 or to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee Trustee, and such
vesting shall be effective whether or not conveyancing documents have been
executed and delivered pursuant to the appointment of such Successor Guarantee
Trustee.
(b) The Guarantee Trustee, prior to the occurrence of any Event of
Default and after the curing or waiving of all Events of Default that may have
occurred, shall undertake to perform such duties and only such duties as are
specifically set forth in this Guarantee Agreement, and no implied covenants or
obligations shall be read into this Guarantee Agreement against the Guarantee
Trustee. In case an Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.06), the Guarantee Trustee shall exercise such of
the rights and powers vested in it by this Guarantee Agreement, and use the same
degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(c) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee Trustee
shall be determined solely by the express provisions of this
Guarantee Agreement, and the Guarantee Trustee shall not be
liable except for the performance of such duties and obligations
as are specifically set forth in this Guarantee Agreement, and no
implied covenants or obligations shall be read into this
Guarantee Agreement against the Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the
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truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Guarantee Trustee and conforming to the requirements of this
Guarantee Agreement; but in the case of any such certificates or
opinions that by any provision hereof or of the Trust Indenture
Act are specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Guarantee Agreement or of the Trust
Indenture Act (but need not confirm or investigate the accuracy
of mathematical calculations or other facts stated therein);
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was
negligent in ascertaining the pertinent facts upon which such judgment
was made;
(iii) the Guarantee Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a Majority in
Liquidation Amount of the Preferred Trust Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee Agreement;
and
(iv) no provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if the
Guarantee Trustee shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably assured to it
under the terms of this Guarantee Agreement or adequate indemnity,
satisfactory to the Guarantee Trustee in the exercise of its
reasonable judgment, against such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly provided, every provision of this
Guarantee Agreement relating to the conduct or affecting the liability of or
affording protection to the Guarantee Trustee shall be subject to the provisions
of Sections 3.01(b) and 3.01(c).
SECTION 3.02 CERTAIN RIGHTS OF THE GUARANTEE TRUSTEE. (a) Subject to
the provisions of Section 3.01:
(i) the Guarantee Trustee may rely and shall be fully protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document reasonably believed by it to be genuine and
to have been signed, sent or presented by the proper party or parties;
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(ii) any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officer's
Certificate, or as otherwise expressly provided herein;
(iii) whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter
be proved or established before taking, suffering or omitting to take
any action hereunder, the Guarantee Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad faith on
its part, request and conclusively rely upon an Officer's Certificate
which, upon receipt of such request from the Guarantee Trustee, shall
be promptly delivered by the Guarantor;
(iv) the Guarantee Trustee may consult with counsel of its
choice, and the written advice or Opinion of Counsel with respect to
legal matters shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in
good faith and in accordance with such advice or opinion; such counsel
may be counsel to the Guarantee Trustee, the Guarantor or any of the
Affiliates thereof and may include any of the employees thereof; the
Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Guarantee Agreement
from any court of competent jurisdiction;
(v) the Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder, unless such
Holder shall have provided to the Guarantee Trustee such adequate
security and indemnity as would satisfy a reasonable person in the
position of the Guarantee Trustee, against the costs, expenses
(including attorneys' fees and expenses) and liabilities that might be
incurred by it in complying with such request or direction, including
such reasonable advances as may be requested by the Guarantee Trustee;
provided that, nothing contained in this Section 3.02(a)(v) shall be
taken to relieve the Guarantee Trustee, upon the occurrence and
continuance of an Event of Default, of its obligation under the last
sentence of Section 3.01(b) to exercise the rights and powers vested
in it by this Guarantee Agreement;
(vi) the Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit;
(vii) the Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys, and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by it hereunder;
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(viii) whenever in the administration of this Guarantee Agreement
the Guarantee Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder, the Guarantee Trustee (1) may request instructions
from the Holders of a Majority in Liquidation Amount of the Preferred
Trust Securities, (2) may refrain from enforcing such remedy or right
or taking such other action until such instructions are received, and
(3) shall be protected in relying on or acting in accordance with such
instructions; and
(ix) the Guarantee Trustee shall not be liable for any action
taken, suffered or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Guarantee Agreement.
(b) No provision of this Guarantee Agreement shall be deemed to impose
any duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such permissive power
or authority.
SECTION 3.03 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE
AGREEMENT. The recitals contained in this Guarantee Agreement shall be taken as
the statements of the Guarantor, and the Guarantee Trustee does not assume any
responsibility for their correctness. The Guarantee Trustee makes no
representation as to the validity or sufficiency of this Guarantee Agreement
except that it is duly authorized and qualified to enter into and perform its
responsibilities under this Guarantee Agreement.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.01 GUARANTEE TRUSTEE; ELIGIBILITY. (a) There shall at all
times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or
Person permitted by the Securities and Exchange Commission to act
as an institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least Fifty million
U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial or District of
Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority referred
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to above, then, for the purposes of this Section 4.01(a)(ii), the
combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most
recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.01(a), the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in
Section 4.03(c).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act after giving effect to the provisions of Section
2.08 hereof, the Guarantee Trustee and Guarantor shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.02 COMPENSATION, REIMBURSEMENT AND INDEMNITY. The Guarantor
agrees:
(a) to pay the Guarantee Trustee from time to time such compensation
as the Guarantor and the Guarantee Trustee shall from time to time agree in
writing for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Guarantee Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Guarantee Trustee in
accordance with the provisions of this Guarantee Agreement (including the
reasonable compensation and expenses of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence, willful misconduct or bad faith; and
(c) to indemnify each of the Guarantee Trustee and any predecessor
Guarantee Trustee for, and to hold it harmless from and against, any and
all loss, damage, claim, liability or expense, including taxes (other than
taxes based upon the income of the Guarantee Trustee) incurred without
negligence, willful misconduct or bad faith on its part, arising out of or
in connection with the acceptance of the trusts created by, or the
administration of, this Guarantee Agreement, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
The provisions of this Section shall survive the termination of this
Guarantee Agreement.
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SECTION 4.03 APPOINTMENT, REMOVAL AND RESIGNATION OF GUARANTEE TRUSTEE.
(a) Subject to Section 4.03(b), unless an Event of Default shall have occurred
and be continuing, the Guarantee Trustee may be appointed or removed without
cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has been appointed by the Guarantor and has accepted such
appointment by written instrument executed by such Successor Guarantee Trustee
and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.03 within 60 days after
delivery to the Guarantor of an instrument of resignation or removal, the
Guarantee Trustee resigning or being removed may petition any court of competent
jurisdiction for appointment of a Successor Guarantee Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper, appoint
a Successor Guarantee Trustee.
(e) The Guarantor shall give notice of each resignation and each
removal of the Guarantee Trustee and each appointment of a Successor Guarantee
Trustee to all Holders in the manner provided in Section 8.03 hereof. Each
notice shall include the name of the Successor Guarantee Trustee and the address
of its corporate trust office.
(f) No Guarantee Trustee shall be liable for the acts or omissions to
act of any Successor Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 5.01 GUARANTEE. Subject to Section 6.01 hereof, the Guarantor
irrevocably and unconditionally agrees to pay in full to the Holders the
Guarantee Payments (without duplication of amounts theretofore paid by or on
behalf of the Issuer [/2/ or by the Guarantor pursuant to the Subordinated
Indenture]), as and when due, regardless of any defense, right of set-off or
counterclaim which the Issuer may have or assert. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders.
SECTION 5.02 WAIVER OF NOTICE AND DEMAND. The Guarantor hereby waives
notice of acceptance of this Guarantee Agreement and of any liability to which
it applies or may apply, presentment, demand for payment, any right to require a
proceeding first against the Guarantee Trustee, Issuer or any other Person
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before proceeding against the Guarantor, protest, notice of nonpayment, notice
of dishonor, notice of redemption and all other notices and demands.
SECTION 5.03 OBLIGATIONS NOT AFFECTED. The obligation of the Guarantor
to make the Guarantee Payments under this Guarantee Agreement shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Preferred Trust
Securities to be performed or observed by the Issuer (except that the
Guarantor will have the benefit of any release or waiver granted in
accordance with the Subordinated Indenture or the Trust Agreement);
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or
any other sums payable under the terms of the Preferred Trust Securities or
the extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Preferred Trust Securities
(other than an extension of time for payment of Distributions, Redemption
Price, Liquidation Distribution or other sum payable that results from the
extension of any interest payment period on the Debentures permitted by the
Subordinated Indenture) (except that the Guarantor will have the benefit of
any extension of time granted in accordance with the Subordinated Indenture
or the Trust Agreement);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Preferred
Trust Securities, or any action on the part of the Issuer granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Issuer
or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred Trust
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the
intent of this Section 5.03 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain consent
of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.04 RIGHTS OF HOLDERS. The Guarantor expressly acknowledges
that: (i) this Guarantee Agreement will be deposited with the Guarantee Trustee
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to be held for the benefit of the Holders; (ii) if an Event of Default has
occurred and is continuing, the Guarantee Trustee has the right to enforce this
Guarantee Agreement on behalf of the Holders; (iii) the Holders of a Majority in
Liquidation Amount of the Preferred Trust Securities have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Guarantee Trustee in respect of this Guarantee Agreement or exercising
any trust or power conferred upon the Guarantee Trustee under this Guarantee
Agreement, and (iv) if the Guarantee Trustee fails to enforce this Guarantee
Agreement, any Holder may enforce this Guarantee Agreement, or institute a legal
proceeding directly against the Guarantor to enforce the Guarantee Trustee's
rights under this Guarantee Agreement, without first instituting a legal
proceeding against the Issuer, the Guarantee Trustee, or any other Person.
SECTION 5.05 GUARANTEE OF PAYMENT. This Guarantee Agreement creates a
guarantee of payment and not of collection. This Guarantee Agreement will not be
discharged except (i) by payment of the Guarantee Payments in full by the
Guarantor (without duplication), or (ii) upon the termination of this Guarantee
Agreement pursuant to Section 7.01 hereof.
SECTION 5.06 SUBROGATION. The Guarantor shall be subrogated to all, if
any, rights of the Holders against the Issuer in respect of any amounts paid to
the Holders by the Guarantor under this Guarantee Agreement; provided, however,
that the Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any rights which it may
acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Guarantee Agreement,
if, at the time of any such payment, any amounts of Guarantee Payments are due
and unpaid under this Guarantee Agreement. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor agrees to hold
such amount in trust for the Holders and to pay over such amount to or for such
Holder in accordance with the Trust Agreement.
SECTION 5.07 INDEPENDENT OBLIGATIONS. The Guarantor acknowledges that
its obligations hereunder are independent of the obligations of the Issuer with
respect to the Preferred Trust Securities and that the Guarantor shall be liable
as principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.03.
ARTICLE VI
SUBORDINATION
SECTION 6.01 SUBORDINATION. This Guarantee Agreement will constitute an
unsecured obligation of the Guarantor and will rank (i) subordinate and junior
in right of payment, and subject to, all other liabilities of the Guarantor,
[/2/ including the subordinated guarantee of the Debentures pursuant to the
Subordinated Indenture], except those made pari passu or subordinate by their
terms, (ii) pari passu with the most senior preferred or preference stock now or
hereafter issued by the Guarantor and with any guarantee now or hereafter
entered into by the Guarantor in respect of any of the most senior preferred
stock or preference stock of any Affiliate of the Guarantor and (iii) senior to
all common stock of the Guarantor. [This Guarantee Agreement will rank pari
passu with the Guarantee Agreement, dated as of March 15, 2004, between the
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Guarantor and The Bank of New York, as guarantee trustee.] Each Person, by
virtue of having become a Holder of a Security, shall be deemed to have
expressly assented and agreed to the terms of, and shall be bound by, this
Guarantee Agreement, the Trust Agreement and the Subordinated Indenture.
ARTICLE VII
TERMINATION
SECTION 7.01 TERMINATION. This Guarantee Agreement shall terminate and
be of no further force and effect upon: (i) full payment of the Redemption Price
of all Preferred Trust Securities, and all accrued and unpaid Distributions to
the date of redemption, (ii) the distribution of Debentures to Holders in
exchange for all of the Preferred Trust Securities, or (iii) full payment of the
amounts payable to or for the Holders in accordance with the Trust Agreement
upon liquidation of the Issuer. Notwithstanding the foregoing, this Guarantee
Agreement will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder must restore payment of any sums paid with respect
to Preferred Trust Securities or under this Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 AMENDMENTS. This Guarantee Agreement may be amended only
by an instrument in writing duly executed by the Guarantor and the Guarantee
Trustee. Except with respect to any changes which do not materially adversely
affect the rights of Holders (in which case no consent of Holders will be
required) and subject to Section 2.06(b) hereof, this Guarantee Agreement may
only be amended with the prior approval of the Holders of not less than a
Majority in Liquidation Amount of the Preferred Trust Securities. No amendment
may impair the right of any Holder to receive payment of any Guarantee Payments
in accordance with this Guarantee Agreement as in effect on the date hereof or
to institute suit for the enforcement of any such payment without, in each case,
the consent of each such Holder. Any such approval shall be deemed to be on
behalf of the Holders of all the Preferred Trust Securities. The provisions of
Article VI of the Trust Agreement concerning meetings or consents of Holders
shall apply to the giving of such approval.
SECTION 8.02 SUCCESSORS AND ASSIGNS. All guarantees and agreements
contained in this Guarantee Agreement shall bind the successors, assigns,
receivers, trustees and representatives of the Guarantor and shall inure to the
benefit of the Holders of the Preferred Trust Securities then outstanding.
Except in connection with a consolidation, merger or other transfer involving
the Guarantor that is permitted under Article Eleven of the Subordinated
Indenture and pursuant to which the assignee or successor, if any, agrees in
writing to perform the Guarantor's obligations hereunder, the Guarantor shall
not assign its obligations hereunder.
SECTION 8.03 NOTICES. Any notice, request or other communication
required or permitted to be given hereunder shall be in writing, duly signed by
the party giving such notice, and delivered, facsimiled or mailed by first class
mail as follows:
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(a) if given to the Guarantor, to the address set forth below or such
other address as the Guarantor may give notice of to the Guarantee Trustee
and the Holders of the Preferred Trust Securities:
FPL Group, Inc.
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▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Treasurer
(b) if given to the Issuer, in care of the Administrative Trustees, at
the Issuer's (and the Administrative Trustees') address set forth below or
such other address as the Administrative Trustees on behalf of the Issuer
may give notice of to the Guarantee Trustee and the Holders:
FPL Group [/2/ Capital] Trust __
c/o FPL Group, Inc.
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Treasurer
(c) if given to the Guarantee Trustee, to the address set forth below
or such other address as the Guarantee Trustee may give notice of to the
Guarantor and the Holders of the Preferred Trust Securities:
The Bank of New York
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
With a copy to:
The Bank of New York Trust Company, N.A.
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
(d) if given to any Holder, at the address set forth on the Securities
Register.
All notices hereunder shall be deemed to have been given when received
in person, facsimiled with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
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SECTION 8.04 BENEFIT. This Guarantee Agreement is solely for the
benefit of the Holders and, subject to Section 3.01(a), is not separately
transferable from the Preferred Trust Securities.
SECTION 8.05 INTERPRETATION. In this Guarantee Agreement, unless the
context otherwise requires:
(a) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(b) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or
amended from time to time;
(c) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(d) a term defined in the Trust Indenture Act has the same meaning
when used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires;
(e) a reference to the singular includes the plural and vice versa;
and
(f) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
SECTION 8.06 GOVERNING LAW. THIS GUARANTEE AGREEMENT SHALL 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
LAWS OF ANY OTHER JURISDICTION ARE MANDATORILY APPLICABLE.
SECTION 8.07 COUNTERPARTS.
This Guarantee Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
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THIS GUARANTEE AGREEMENT is executed, in New York, New York, as of the
day and year first above written.
FPL GROUP, INC.,
as Guarantor
By:__________________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Guarantee Trustee
By:__________________________________________
Name:
Title: