EXHIBIT 4(ah)
TRUST AGREEMENT
OF
FPL GROUP CAPITAL TRUST II
This TRUST AGREEMENT, dated as of February 27, 2003, is entered into by and
among FPL Group, Inc., a Florida corporation, as depositor (the "Depositor"),
The Bank of New York (Delaware), as trustee (the "Delaware Trustee"), The Bank
of New York, a New York banking corporation, as trustee (the "Property
Trustee"), and Xxxx X. Xxxxxx, as trustee (the Administrative Trustee, together
with any administrative trustees appointed by the Depositor after the date
hereof, the "Administrative Trustees" and collectively with the Delaware Trustee
and the Property Trustee, the "Trustees"). The Depositor and the Trustees hereby
agree as follows:
1. The trust created hereby (the "Trust") shall be known as "FPL Group
Capital Trust II", in which name the Trustees, or the Depositor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and xxx and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trust the sum of ten dollars ($10.00). The Trustees hereby acknowledge
receipt of such amount from the Depositor, which amount shall constitute the
initial trust estate. The Trustees hereby declare that they will hold the trust
estate for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a statutory trust under Chapter 38 of Title 12
of the Delaware Code, 12 Del. C. ss. 3801 et seq. (the "Statutory Trust Act"),
and that this document constitutes the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in the form attached hereto with such
changes therein as the Trustees executing such form may approve, approval of any
such changes to be conclusively evidenced by execution of such form.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement, satisfactory to each such party (as contemplated by
the 1933 Act Registration Statement (as defined below)), to provide for the
contemplated operation of the Trust created hereby and the issuance of preferred
securities (the "Preferred Trust Securities") and common securities by the Trust
as such securities will be described therein. Prior to the execution and
delivery of such amended and restated Trust Agreement, the Trustees shall not
have any duty or obligation hereunder or with respect to the trust estate,
except as otherwise required by applicable law or as may be necessary to obtain
prior to such execution and delivery any licenses, consents or approvals
required by applicable law or otherwise. Notwithstanding the foregoing, the
Trustees may take all actions deemed proper as necessary to effect the
transactions contemplated herein.
4. Each of the Administrative Trustees and the Depositor, acting singly
or together are hereby authorized and directed (i) to prepare and file with the
Securities and Exchange Commission (the "Commission") and execute, in each case
on behalf of the Trust, (a) a Registration Statement on Form S-3 (the "1933 Act
Registration Statement") (including any pre-effective or post-effective
amendments thereto), relating to the registration under the Securities Act of
1933, as amended (the "Securities Act"), of the Preferred Trust Securities of
the Trust and certain other securities and (b) a Registration Statement on Form
8-A or other appropriate form (the "1934 Act Registration Statement") (including
all pre-effective and post-effective amendments thereto) relating to the
registration of the Preferred Trust Securities of the Trust under Section 12(b)
or 12(g) of the Securities Exchange Act of 1934, as amended, (ii) to prepare and
file with the Commission any preliminary prospectus or prospectus or supplement
thereto relating to the Preferred Trust Securities required to be filed under
the Securities Act, (iii) to prepare and file with one or more national
securities exchanges (each, an "Exchange") or the National Association of
Securities Dealers, Inc. ("NASD") and execute on behalf of the Trust one or more
listing applications and all other, applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to cause the
Preferred Trust Securities to be listed on any such Exchange or the Nasdaq
National Market, (iv) to prepare, file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorneys for service of process, and other papers and documents as shall be
necessary or desirable to register the Preferred Trust Securities under the
securities or blue sky laws of such jurisdictions as the Depositor or the
Administrative Trustee, on behalf of the Trust, may deem necessary or desirable,
(v) negotiate, execute, deliver and perform, on behalf of the Trust, such
underwriting agreements with one or more underwriters relating to the offering
of the Preferred Trust Securities in such form as the Depositor shall approve,
(vi) to prepare, execute, deliver and perform a depository agreement with the
initial clearing agency and (vii) to apply for an obtain a tax identification
number for the Trust.
In the event that any filing referred to in this Section 4 is required
by the rules and regulations of the Commission, any Exchange, the NASD or state
securities or blue sky laws, to be executed on behalf of the Trust by one or
more of the Trustees, each of the Trustees, in its or his/her capacity as
Trustee of the Trust, is hereby authorized and, to the extent so required,
directed to join in any such filing and to execute on behalf of the Trust any
and all of the foregoing, it being understood that the Property Trustee and the
Delaware Trustee, in their capacities as trustees of the Trust, respectively,
shall not be required to join in any such filing or execute on behalf of the
Trust any such document unless required by the rules and regulations of the
Commission, any Exchange, the NASD, or state securities or blue sky laws.
In connection with the filings referred to in this Section 4, Xxxxxx X.
Xxxxx, Esq., Xxxxxx X. XxXxxxxx, P.A. and Xxxxxx X. Xxxxx, Xx., Esq., and each,
of them, are hereby constituted and appointed as the true and lawful
attorneys-in-fact and agents for the Depositor and each Administrative Trustee
with full power of substitution and resubstitution, for the Depositor or such
Trustee, in the Depositor's or such Trustee's name, place and stead, in any and
all capacities, to sign any and all filings and amendments (including all
pre-effective and post-effective amendments) to any of such filings (including
the 1933 Act Registration Statement and the 1934 Act Registration Statement) and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, any Exchange or the NASD, and securities or blue
sky administrators, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as the Depositor or such Trustee might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their respective substitute or substitutes, shall do or cause to be
done by virtue hereof.
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5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be three (3) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Depositor which may increase or decrease
the number of Trustees; provided that, to the extent required by the Statutory
Trust Act, one Trustee shall be an entity that has its principal place of
business in the State of Delaware. Subject to the foregoing, the Depositor is
entitled to appoint or remove without cause any Trustee at any time. Any Trustee
may resign upon thirty days prior written notice to the Depositor.
7. The Bank of New York (Delaware), in its capacity as trustee, shall
not have the powers or the duties of the Trustee set forth herein (except as may
be required under the Statutory Trust Act) and shall be a Trustee hereunder for
the sole and limited purpose of fulfilling the requirements of ss. 3807(a) of
the Statutory Trust Act.
8. The Trust may be dissolved and terminated before the issuance of the
Preferred Trust Securities at the election of the Depositor. Upon dissolution of
the Trust pursuant to this Section 8, each of the Administrative Trustees,
acting singly, is hereby authorized to prepare, execute and file a Certificate
of Cancellation in respect of the Trust with the Secretary of State of the State
of Delaware.
9. This Trust Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to conflict of
laws principles thereof, except to the extent that the laws of any other
jurisdiction are mandatorily applicable.
10. To the fullest extent permitted by applicable law, the Depositor
shall indemnify and hold harmless each Trustee, any affiliate of each Trustee,
and any officer, director, shareholder, member, partner or employee of each
Trustee, and any employee of the Trust (each such person, an "Indemnified
Person") from and against any loss, liability, expense, damage or claim incurred
by such Indemnified Person without negligence (gross negligence, in the case of
any Administrative Trustee or the Delaware Trustee or other person who is an
Indemnified Person by virtue of the relationship thereto), bad faith or willful
misconduct on the part of the Indemnified Person, or in the case of any such
affiliate, officer, director, shareholder, member, partner or employee, on the
part of the related Trustee, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder or by reason of any act or
omission performed or omitted by such Indemnified Person in good faith on behalf
of the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this Trust
Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
FPL GROUP, INC.,
as Depositor
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: Treasurer
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: SVP
THE BANK OF NEW YORK,
as Property Trustee
By: /s/ Xxxx XxXxxxxx
--------------------------------------
Name: Xxxx XxXxxxxx
Title: Vice President
/s/ Xxxx X. Xxxxxx
-----------------------------------------
Xxxx X. Xxxxxx,
as Administrative Trustee
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CERTIFICATE OF TRUST
OF
FPL GROUP CAPITAL TRUST II
This Certificate of Trust of FPL Group Capital Trust II (the "Trust"),
dated February 27, 2003, is being duly executed and filed by the undersigned, as
trustees, to form a statutory trust under the Delaware Statutory Trust Act (12
Del. C.ss.3801 et seq.) (the "Act").
1. Name. The name of the statutory trust being formed hereby is FPL
Group Capital Trust II.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware is The
Bank of New York (Delaware), Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx
00000.
3. Effective Date. This Certificate of Trust shall be effective upon
filing with the Secretary of State of the State of Delaware.
4. Counterparts. This Certificate of Trust may be executed in one or
more counterparts.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have executed this Certificate of Trust in accordance with Section 3811(a)(1) of
the Act.
THE BANK OF NEW YORK
(DELAWARE), not in its individual
capacity but solely as trustee
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: SVP
THE BANK OF NEW YORK, not in its
individual capacity but solely as trustee
By: /s/ Xxxx XxXxxxxx
--------------------------------------
Name: Xxxx XxXxxxxx
Title: Vice President
/s/ Xxxx X. Xxxxxx
----------------------------------------,
Xxxx X. Xxxxxx, not in his individual
capacity but solely as trustee
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