EXHIBIT 4(bf)
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PREFERRED STOCK GUARANTEE AGREEMENT
from
FPL GROUP, INC.
to
Holders of
FPL GROUP CAPITAL INC
_____________________ Serial Preferred Stock
Dated as of __________, 20__
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS..........................................................1
SECTION 1.01 Definitions...................................................1
ARTICLE II GUARANTEE...........................................................2
SECTION 2.01 Guarantee.....................................................2
SECTION 2.02 Waiver of Notice and Demand...................................3
SECTION 2.03 Absolute and Unconditional....................................3
SECTION 2.04 Enforcement of Guarantee......................................3
SECTION 2.05 Guarantee of Payment..........................................3
SECTION 2.06 Subrogation...................................................3
SECTION 2.07 Reinstatement of Obligations..................................4
SECTION 2.08 Certain Rights, Remedies and Powers of Guaranteed Persons.....4
SECTION 2.9 Form of Guarantee.............................................4
ARTICLE III WAIVER OF EVENTS OF DEFAULT........................................4
SECTION 3.01 Events of Default; Waiver.....................................4
ARTICLE IV LIMITATION OF TRANSACTIONS; SUBORDINATION...........................5
SECTION 4.01 Limitation of Transactions....................................5
SECTION 4.02 Subordination.................................................5
ARTICLE V TERMINATION..........................................................6
SECTION 5.01 Termination...................................................6
ARTICLE VI MISCELLANEOUS.......................................................6
SECTION 6.01 Amendments....................................................6
SECTION 6.02 Subsidiary....................................................6
SECTION 6.03 Successors and Assigns........................................7
SECTION 6.04 Notices.......................................................7
SECTION 6.05 Benefit.......................................................7
SECTION 6.06 Interpretation................................................7
SECTION 6.07 Governing Law.................................................8
SECTION 6.08 Separability..................................................8
SECTION 6.09 Counterparts..................................................8
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PREFERRED STOCK GUARANTEE AGREEMENT
This PREFERRED STOCK GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as
of ______________________, is executed and delivered by FPL Group, Inc., a
Florida corporation (the "Guarantor"), for the benefit of the Holders (as
defined herein) from time to time of the Preferred Stock (as defined herein) of
FPL Group Capital Inc, a Florida corporation (the "Issuer");
WHEREAS, pursuant to its Articles of Incorporation, as amended, the Issuer
is authorized to issue up to ____________ shares of its _______ Serial Preferred
Stock, $0.01 par value, of which ______ shares of Preferred Stock (the
"Preferred Stock") are being issued as of the date hereof; and
WHEREAS, as incentive for the Holders to purchase Preferred Stock, the
Guarantor desires irrevocably and unconditionally to agree, to the extent set
forth herein, to pay to the Holders of the Preferred Stock the Guarantee
Payments (as defined herein) on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the purchase of Preferred Stock, 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.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Articles of Amendment" refers to the articles of amendment to the Articles
of Incorporation of the Issuer filed by the Issuer with the Department of State
of the State of Florida which sets forth the designation, preferences and
relative rights and other terms of the Preferred Stock with respect to which a
Guarantee is granted hereunder.
"Common Stock" means the common stock, $0.01 par value, of the Guarantor.
"Dividends" means the periodic dividends payable to Holders of Preferred
Stock in accordance with the terms of the Preferred Stock set forth in the
Articles of Amendment.
"Dividend Payments" means any accumulated and unpaid Dividends which have
been properly declared by the board of directors of the Issuer on the Preferred
Stock out of funds legally available therefor.
"Event of Default" means a default by the Guarantor on any of its payment
obligations under this Guarantee Agreement.
"Guarantee" means the guarantee relating to the Preferred Stock to be
issued by the Guarantor as provided in this Guarantee Agreement.
"Guarantee Payments" shall mean the following payments or distributions,
without duplication, with respect to the Preferred Stock then outstanding, to
the extent provided for in the Articles of Amendment and to the extent not paid
when payable by the Issuer: (i) any Dividend Payments, (ii) the Redemption Price
and (iii) the Liquidation Distribution.
"Holder" shall mean any holder, as registered on the books and records of
the Issuer, of any outstanding Preferred Stock with respect to which the
Guarantee is issued hereunder; provided, however, that in determining whether
the holders of the requisite percentage of Preferred Stock have given any
request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor or any entity which is an Affiliate of the Guarantor.
"Liquidation Distribution" means the aggregate of the liquidation amount
payable by the Issuer upon the Preferred Stock in accordance with the terms set
forth in the Articles of Amendment upon a voluntary or involuntary dissolution,
winding-up or liquidation of the Issuer.
"Majority of the Preferred Stock" means Holder(s) of outstanding Preferred
Stock voting together as a single class, whose number of shares of Preferred
Stock represents more than 50% of the number of all outstanding Preferred Stock.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, trust, estate, joint stock company, unincorporated
organization or government, or any agency or political subdivision thereof, or
any other entity of whatever nature.
"Preferred Stock" has the meaning set forth in the first WHEREAS clause
above.
"Redemption Price" means the amount payable by the Issuer on redemption of
the Preferred Stock in accordance with the terms set forth in the Articles of
Amendment upon shares of Preferred Stock duly called for redemption.
ARTICLE II
GUARANTEE
SECTION 2.01 GUARANTEE. The Guarantor hereby fully and unconditionally
guarantees to each Holder the due and punctual payment of the Guarantee
Payments, as and to the extent applicable (without duplication of amounts
theretofore paid by the Issuer) when and as the same shall become due and
payable, according to the terms of the Preferred Stock as set forth in the
Articles of Amendment, regardless of any defense, right of set-off or
counterclaim which the Issuer may have or assert. In case of the failure of the
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Issuer or any successor thereto punctually to pay any such Guarantee Payments,
as and to the extent applicable, the Guarantor hereby agrees to cause any such
payment to be made punctually when and as the same shall become due and payable,
as if such payment were made by the Issuer. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Guarantor to or for the benefit of the Holders or by payment by the Issuer
of such amounts to or for the benefit of the Holders.
SECTION 2.02 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 Issuer or any other Person before proceeding
against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice
of redemption and all other notices and demands.
SECTION 2.03 ABSOLUTE AND UNCONDITIONAL. The Guarantor hereby agrees that
its obligations under this Guarantee Agreement shall be as if it were a
principal obligor and not merely a surety and shall be absolute and
unconditional, irrespective of the validity, regularity or enforceability of the
Preferred Stock, the absence of any action to enforce the same, any waiver or
consent by the Holder of any shares of Preferred Stock with respect to any terms
thereof, the recovery of any judgment against the Issuer or any action to
enforce the same, or any circumstance which might otherwise constitute a legal
or equitable discharge or defense of a guarantor. The Guarantor acknowledges
that its obligations hereunder are independent of the obligations of the Issuer
with respect to the Preferred Stock and that the Guarantor shall be liable as a
principal obligor hereunder to make Guarantee Payments pursuant to the terms of
this Guarantee Agreement notwithstanding the occurrence of any event referred to
in this Section 2.03.
SECTION 2.04 ENFORCEMENT OF GUARANTEE. Any Holder of Preferred Stock may
institute a legal proceeding directly against the Guarantor to enforce its
rights under this Guarantee Agreement, without first instituting a legal
proceeding against the Issuer or any other Person.
SECTION 2.05 GUARANTEE OF PAYMENT. This Guarantee Agreement creates a
guarantee of payment and not merely of collection. This Guarantee Agreement will
not be discharged except (i) by payment of the Dividend Payments, the Redemption
Price or the Liquidation Distribution, if and as applicable, in full by the
Issuer, (ii) by payment of the Guarantee Payments in full (without duplication
of amounts theretofore paid by the Issuer) by the Guarantor or (iii) upon
termination of this Guarantee Agreement pursuant to Section 5.01 hereof.
SECTION 2.06 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 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 applicable
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Holders and to pay over such amount to or for the applicable Holders.
SECTION 2.07 REINSTATEMENT OF OBLIGATIONS. If any Holder of Preferred Stock
is required by any court or otherwise to return to the Issuer or the Guarantor,
or any custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official acting in relation to the Issuer or the Guarantor, any amount
paid to such Holder in respect of Guarantee Payments on such Preferred Stock,
the Guarantee issued under this Guarantee Agreement, to the extent theretofore
discharged, shall be reinstated in full force and effect.
SECTION 2.08 CERTAIN RIGHTS, REMEDIES AND POWERS OF GUARANTEED PERSONS. The
Holders of Preferred Stock shall have all of the rights and remedies available
under applicable law and may proceed by appropriate court action to enforce the
terms hereof and to recover damages for the breach hereof. Each and every remedy
of each such Person shall, to the extent permitted by law, be cumulative and
shall be in addition to any other remedy now or hereafter existing at law or in
equity. At the option of any such Person, the Guarantor may be joined in any
action or proceeding commenced by such Person against the Issuer in respect of
any obligations guaranteed pursuant to this Guarantee Agreement, and recovery
may be had against the Guarantor in such action or proceeding or in any
independent action or proceeding against the Guarantor, without any requirement
that any remedy or claim against the Issuer be first asserted, prosecuted or
exhausted.
SECTION 2.09 FORM OF GUARANTEE. The Guarantee to be endorsed upon any stock
certificate representing Preferred Stock shall be in substantially the form set
forth in Exhibit A attached hereto, with such appropriate insertions, omissions,
substitutions, and other variations as are required or permitted hereby, and may
include such letters, numbers or other marks of identification and legends as
may be required to comply with the rules of any securities exchange. The
definitive Guarantee to be endorsed upon the Preferred Stock shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner provided that such
manner is permitted by the rules of any securities exchange on which the
Preferred Stock may be listed. In the alternative, each stock certificate
representing Preferred Stock may omit the form of Guarantee set forth in Exhibit
A if a legend is included on such stock certificate indicating that a copy of
this Guarantee Agreement will be provided upon request.
ARTICLE III
WAIVER OF EVENTS OF DEFAULT
SECTION 3.01 EVENTS OF DEFAULT; WAIVER. (a) Holders of Preferred Stock
may by vote or consent of at least a Majority of the Preferred Stock, on behalf
of the Holders of all Preferred Stock, waive any past Event of Default and its
consequences. Upon such waiver, any such 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.
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(b) The right of any Holder of Preferred Stock 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.
ARTICLE IV
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 4.01 LIMITATION OF TRANSACTIONS. So long as any shares of Preferred
Stock remain outstanding, the Guarantor will not (i) declare or pay any
dividends or other distributions on its capital stock or (ii) redeem, purchase,
acquire or make a liquidation payment with respect to any of its capital stock,
if at such time the Guarantor shall be in default with respect to its Guarantee
Payments; provided that the foregoing provisions shall not prevent or restrict
the Guarantor from making:
(a) purchases, redemptions or other acquisitions of its capital stock
in connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of employees, officers, directors or agents
or a stock purchase or dividend reinvestment plan, or the satisfaction of its
obligations pursuant to any contract or security outstanding, on the date that
the Guarantor defaults with respect to its Guarantee Payments, requiring it to
purchase, redeem or acquire its capital stock;
(b) any payment, distribution, redemption, purchase, acquisition or
declaration of dividend described above as a result of a reclassification of its
capital stock, or the exchange or conversion of all or a portion of one class or
series of its capital stock for another class or series of its capital stock;
(c) the purchase of fractional interests in shares of its capital
stock pursuant to the conversion or exchange provisions of its capital stock or
the security being converted or exchanged, or in connection with the settlement
of stock purchase contracts;
(d) dividends or distributions paid or made in its capital stock (or
rights to acquire its capital stock), or repurchases, redemptions or
acquisitions of capital stock in connection with the issuance or exchange of
capital stock (or of securities convertible into or exchangeable for shares of
its capital stock and distributions in connection with the settlement of stock
purchase contracts); and
(e) redemptions, exchanges or repurchases of, or with respect to, any
rights outstanding under a shareholder rights plan or the declaration or payment
thereunder of a dividend or distribution of or with respect to rights in the
future.
SECTION 4.02 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 liabilities of the Guarantor, 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 now or
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hereafter issued by the Guarantor. The Guarantor's obligations under this
Guarantee Agreement will rank pari passu with respect to obligations under other
guarantee agreements which it may enter into from time to time to the extent
that such agreements shall be entered into in substantially the form hereof and
provide for comparable guarantees by the Guarantor of payment on preferred stock
issued by the Issuer or any of its Affiliates. Each Person, by virtue of having
become a Holder of the Preferred Stock, shall be deemed to have expressly
assented and agreed to the terms of, and shall be bound by, this Guarantee
Agreement.
ARTICLE V
TERMINATION
SECTION 5.01 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 Stock, (ii) the distribution of Common Stock or other securities
of the Issuer, the Guarantor or any other Person upon conversion of or in
exchange for all of the Preferred Stock, (iii) full payment of the amounts
payable to or for the Holders in accordance with the Articles of Amendment upon
liquidation, dissolution or winding up of the Issuer, or (iv) such date when no
shares of Preferred Stock are outstanding. 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 to the Issuer or Guarantor
payment of any sums paid by the Issuer and guaranteed by the Guarantee, or any
Guarantee Payments.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01 AMENDMENTS. 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), this Guarantee Agreement may only be amended with the
prior approval of the Holders of not less than a Majority of the Preferred
Stock. Any such approval shall be deemed to be on behalf of the Holders of all
of the Preferred Stock. The provisions of the Articles of Amendment concerning
meetings or consents of Holders shall apply to the giving of such approval. 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.
SECTION 6.02 SUBSIDIARY. The Guarantor represents that Guarantor owns all
the issued and outstanding common stock, $0.01 par value, of the Issuer, and
that this Guarantee Agreement may reasonably be expected to benefit, directly or
indirectly, the Guarantor. The Guarantor further represents that the
consideration received for this Guarantee Agreement is reasonably worth at least
as much as the liability and obligation incurred by the Guarantor under this
Guarantee Agreement.
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SECTION 6.03 SUCCESSORS AND ASSIGNS. All guarantees and agreements
contained in this Guarantee Agreement shall bind the successors, assignees,
receivers, trustees and representatives of the Guarantor and shall inure to the
benefit of the Holders of shares of the Preferred Stock then outstanding. Except
in connection with a consolidation, merger, conveyance or other transfer or
business combination involving the Guarantor in which the resulting or acquiring
entity (if other than the Guarantor) agrees in writing to be legally responsible
for the Guarantee issued under this Guarantee Agreement, the Guarantor shall not
assign its obligations hereunder.
SECTION 6.04 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:
(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 Holders:
FPL Group, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Treasurer
(b) if given to any Holder of Preferred Stock, at the address set
forth on the books and records of the Issuer.
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.
SECTION 6.05 BENEFIT. This Guarantee Agreement is solely for the benefit of
the Holders and is not separately transferable from the Preferred Stock.
SECTION 6.06 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 reference to the singular includes the plural and vice versa;
and
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(e) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
SECTION 6.07 GOVERNING LAW. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA, WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES THEREUNDER, EXCEPT TO THE EXTENT THAT THE
LAWS OF ANY OTHER JURISDICTION ARE MANDATORILY APPLICABLE.
SECTION 6.08 SEPARABILITY. Wherever possible, each provision of this
Guarantee Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Guarantee Agreement
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Guarantee Agreement.
SECTION 6.09 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:
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EXHIBIT A
FORM OF GUARANTEE
For value received, FPL Group, Inc., a Florida corporation (the
"Guarantor") hereby fully and unconditionally guarantees to each Holder the due
and punctual payment of the Guarantee Payments, as and to the extent applicable
(without duplication of amounts theretofore paid by the Issuer) when and as the
same shall become due and payable, according to the terms of the Preferred Stock
as set forth in the Articles of Amendment, regardless of any defense, right of
set-off or counterclaim which the Issuer may have or assert. In case of the
failure of the Issuer or any successor thereto punctually to pay any such
Guarantee Payments, as and to the extent applicable, the Guarantor hereby agrees
to cause any such payment to be made punctually when and as the same shall
become due and payable, as if such payment were made by the Issuer. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to or for the benefit of the
Holders or by payment by the Issuer of such amounts to or for the benefit of the
Holders.
The Guarantor hereby waives notice of acceptance of the 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 Issuer or any other
Person before proceeding against the Guarantor, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices and demands.
The Guarantor hereby agrees that its obligations under the Guarantee
Agreement shall be as if it were a principal obligor and not merely a surety and
shall be absolute and unconditional, irrespective of the validity, regularity or
enforceability of the Preferred Stock, the absence of any action to enforce the
same, any waiver or consent by the Holder of any shares of Preferred Stock with
respect to any terms thereof, the recovery of any judgment against the Issuer or
any action to enforce the same, or any circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor. The
Guarantor acknowledges that its obligations hereunder are independent of the
obligations of the Issuer with respect to the Preferred Stock and that the
Guarantor shall be liable as a principal obligor hereunder to make Guarantee
Payments pursuant to the terms of the Guarantee Agreement notwithstanding the
occurrence of any event referred to in Section 2.03 of the Guarantee Agreement.
Any Holder of Preferred Stock may institute a legal proceeding directly
against the Guarantor to enforce its rights under the Guarantee Agreement,
without first instituting a legal proceeding against the Issuer or any other
Person.
The Guarantee Agreement creates a guarantee of payment and not merely of
collection. The Guarantee Agreement will not be discharged except (i) by payment
of the Dividend Payments, the Redemption Price or the Liquidation Distribution,
if and as applicable, in full by the Issuer, (ii) by payment of the Guarantee
Payments in full (without duplication of amounts theretofore paid by the Issuer)
by the Guarantor or (iii) upon termination of the Guarantee Agreement pursuant
to Section 5.01 thereof.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid by the Guarantor to the
Holders by the Guarantor under the 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 the Guarantee Agreement, if, at the time of
any such payment, any amounts are due and unpaid under the 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 applicable
Holders and to pay over such amount to or for the applicable Holders.
If any Holder of Preferred Stock is required by any court or otherwise to
return to the Issuer or the Guarantor, or any custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official acting in relation to the
Issuer or the Guarantor, any amount paid to such Holder in respect of such
Guarantee Payments, the Guarantee issued under the Guarantee Agreement, to the
extent theretofore discharged, shall be reinstated in full force and effect.
All terms used in this Guarantee that are defined in the Preferred Stock
Guarantee Agreement to which this Guarantee relates shall have the meanings
assigned to them in such Preferred Stock Guarantee Agreement, dated as of
_______________, from the Guarantor to the Holders of the Preferred Stock.
This Guarantee shall not be valid or obligatory for any purpose unless and
until the Preferred Stock to which this Guarantee relates is duly authorized,
issued and outstanding.
Reference is made to the Preferred Stock Guarantee Agreement for further
provisions with respect to this Guarantee.
THE GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF FLORIDA, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES THEREUNDER, EXCEPT TO THE EXTENT THAT THE LAWS OF ANY OTHER
JURISDICTION ARE MANDATORILY APPLICABLE.
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