EXHIBIT 4(c)
GUARANTEE AGREEMENT
Between
FPL Group, Inc.
(as Guarantor)
and
The Bank of New York
(as Guarantee Trustee)
dated as of
________ __, 1998
TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS . . . . . . . . . . . 1
1.01 Definitions . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
TRUST INDENTURE ACT . . . . . . . . . 3
2.01 Trust Indenture Act; Application. . . . . . . . . . 3
2.02 Lists of Holders of Debt Securities . . . . . . . . 3
2.03 Reports by Guarantee Trustee . . . . . . . . . . . 3
2.04 Periodic Reports by Guarantor . . . . . . . . . . . 3
2.05 Evidence of Compliance with Conditions Precedent . 4
2.06 Events of Default; Waiver . . . . . . . . . . . . . 4
2.07 Event of Default; Notice. . . . . . . . . . . . . . 4
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE . . . . . 4
3.01 Powers and Duties of Guarantee Trustee. . . . . . . 4
3.02 Certain Rights of Guarantee Trustee. . . . . . . . 6
3.03 Not Responsible for Recitals of Guarantee Agreement. 8
ARTICLE IV
GUARANTEE TRUSTEE . . . . . . . . . . . . . . . . . . . 8
4.01 Guarantee Trustee; Eligibility. . . . . . . . . . . 8
4.02 Compensation and Reimbursement. . . . . . . . . . . 9
4.03 Appointment, Removal and Resignation of Guarantee
Trustee. . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE V
GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . 10
5.01 Guarantee . . . . . . . . . . . . . . . . . . . . . 10
5.02 Waiver and Payments . . . . . . . . . . . . . . . . 11
5.03 Absolute and Unconditional . . . . . . . . . . . . 11
5.04 Waiver of Notice . . . . . . . . . . . . . . . . . 12
5.05 Duration. . . . . . . . . . . . . . . . . . . . . . 12
5.06 Certain Rights, Remedies and Powers of Guaranteed
Persons. . . . . . . . . . . . . . . . . . . . . . . . . 12
5.07 Governing Law . . . . . . . . . . . . . . . . . . . 12
5.08 Delays. . . . . . . . . . . . . . . . . . . . . . . 12
5.09 Separability. . . . . . . . . . . . . . . . . . . . 13
ARTICLE VI
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . 13
6.01 Amendments . . . . . . . . . . . . . . . . . . . . 13
6.02 Subsidiary . . . . . . . . . . . . . . . . . . . . 13
6.03 Usurious Interest . . . . . . . . . . . . . . . . . 13
6.04 Successors and Assigns . . . . . . . . . . . . . . 13
6.05 Notices . . . . . . . . . . . . . . . . . . . . . . 14
6.06 Benefit . . . . . . . . . . . . . . . . . . . . . . 15
CROSS-REFERENCE TABLE*
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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
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . 3.01(d)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.07
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 3.01
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . 3.01(d)
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(a)
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.06
316(b) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.02
317(a) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
317(b) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(b)
318(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.01
318(c) . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(a)
-------------------
* This Cross-Reference Table does not constitute part of the
Guarantee Agreement and shall not affect the interpretation
of any of its terms or provisions.
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated
as of ________ __, ____, is executed and delivered by FPL Group,
Inc., a Florida corporation (the "Guarantor"), and The Bank of
New York, a New York banking corporation, as trustee (the
"Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Debt Securities (as defined
herein) of FPL Group Capital Inc, a Florida corporation (the
"Issuer").
WHEREAS, pursuant to an Indenture (For Unsecured Debt
Securities) dated as of ________ __, ____ from the Issuer to The
Bank of New York, a New York banking corporation, as trustee (the
"Indenture Trustee") (as heretofore and from time to time
hereafter amended and supplemented, the "Indenture"), the Issuer
is issuing as of the date hereof $___________ aggregate principal
of its _____% __________ due _____ (the "Debt Securities") having
the terms set forth in the Indenture;
NOW, THEREFORE, FOR AND IN CONSIDERATION OF One Dollar
($1.00) and other good and valuable consideration, the receipt of
which is hereby acknowledged, the Guarantor and the Guarantee
Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
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 Indenture
as in effect on the date hereof.
"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.
"Event of Default" means a default by the Guarantor on
any of its payment obligations under this Guarantee Agreement.
"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 such Successor Guarantee Trustee.
"Holder" shall have the meaning set forth for such term
in the Indenture.
"List of Holders" shall have the meaning ascribed to
that term in Section 2.02 below.
"Officer's Certificate" means a certificate signed by
the Chairman of the Board, a Vice Chairman of the Board, the
President, any Vice President, the Treasurer, or any Assistant
Treasurer, or any other duly authorized officer, of the
Guarantor, and delivered to the Guarantee Trustee. Any Officer's
Certificate delivered with respect to compliance with a condition
or covenant provided for in this Guarantee Agreement shall
include:
(a) a statement that the officer signing the
Officer's Certificate 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 the officer in
rendering the Officer's Certificate;
(c) a statement that such officer has made such
examination or investigation as, in such officer's opinion,
is necessary to enable such officer 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, such condition or covenant has been complied with.
"Person" means any individual, corporation, limited
liability company, partnership, joint venture, trust,
unincorporated organization or government, or any agency or
political subdivision thereof, or any other entity of whatever
nature.
"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.
"Security Registrar" shall have the meaning set forth
for such term in the Indenture.
"Successor Guarantee Trustee" means a successor
Guarantee Trustee possessing the qualifications to act as
Guarantee Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended.
ARTICLE II
TRUST INDENTURE ACT
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.
2.02 LISTS OF HOLDERS OF DEBT SECURITIES.
(a) The Guarantor shall furnish or cause to be
furnished to the Guarantee Trustee (a) semiannually, not later
than January 15 and July 15 in each year, commencing ________,
___ a list, in such form as the Guarantee Trustee may reasonably
require, of the names and addresses of the Holders in possession
or control of the Issuer or any of its paying agents ("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 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 Section 311(b) and Section 312(b) of
the Trust Indenture Act.
2.03 REPORTS BY GUARANTEE TRUSTEE. Within 60 days
after July 1 of each year, commencing July 1, _____ 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. The Guarantee Trustee shall also comply with the
requirements of Sections 313(b), (c) and (d) of the Trust
Indenture Act.
2.04 PERIODIC REPORTS BY GUARANTOR. 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.
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)(1) of the Trust Indenture Act may be given in the form of
an Officer's Certificate.
2.06 EVENTS OF DEFAULT; WAIVER. The Holders of all
outstanding Debt Securities may, by vote, 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.
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, notices of all
Events of Default known to the Guarantee Trustee, unless such
defaults have been cured or waived before the giving of such
notice, provided that 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 deemed to
have knowledge of any Event of Default unless a Responsible
Officer charged with the administration of the Guarantee shall
have actual knowledge of the Event of Default.
2.08 CONFLICTING INTERESTS. The Indenture and the
Indenture dated as of Xxxxx 0, 0000 xx XXX Group Capital Inc to
The Bank of New York (as successor to Irving Trust Company) 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
3.01 POWERS AND DUTIES OF GUARANTEE TRUSTEE.
(a) This Guarantee Agreement shall not transfer any
rights hereunder to any Person except 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), and
is actually known to a Responsible Officer of the Guarantee
Trustee, 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 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 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 (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 aggregate
principal amount of outstanding Debt 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, reasonably satisfactory to the Guarantee
Trustee, 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).
3.02 CERTAIN RIGHTS OF 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;
(ii) any direction or act of the Guarantor
contemplated by this Guarantee Agreement shall be
sufficiently evidenced by an Officer's Certificate;
(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 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 rely upon an
Officer's Certificate which, upon receipt of such
request, 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 such 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 reliance on such
advice or opinion; such counsel may be counsel to the
Guarantor or any of its Affiliates and may include any
of its employees; 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 agent or attorney appointed with due care
by it hereunder;
(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
aggregate principal amount of outstanding Debt
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;
(ix) the Guarantee Trustee shall have no duty
to see to any recording, filing or registration of any
instrument (including any financing or continuation
statement or any tax or securities form) (or any
rerecording, refiling or re-registration thereof); and
(x) 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.
3.03 NOT RESPONSIBLE FOR RECITALS 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
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 50 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 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, the Guarantee Trustee and Guarantor
shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act.
4.02 COMPENSATION AND REIMBURSEMENT.
The Guarantor agrees:
(a) to pay the Guarantee Trustee from time to time
such reasonable 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
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 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.
As security for the performance of the obligations of
the Guarantor under this Section, the Guarantee Trustee shall
have a lien prior to that of the Debt Securities upon all the
property or funds held or collected by the Guarantee Trustee as
such, except for funds held in trust for the payment of
principal, premium (if any) or interest on particular obligations
of the Guarantor under this Guarantee Agreement.
The provisions of this Section shall survive the
termination of this Guarantee Agreement.
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 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 30 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 6.05 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
5.01 GUARANTEE. The Guarantor hereby absolutely and
unconditionally guarantees to the Indenture Trustee, prompt and
full payment, when and as the same may become due and payable,
whether upon acceleration, redemption or stated maturity,
according to their terms and the terms of the Indenture, of the
principal, interest and premium, if any, due on each of the Debt
Securities outstanding at any time, but only in the case of a
failure of the Issuer to pay or provide for punctual payment of
any such amounts on or before the expiration of any applicable
grace periods. The Guarantor hereby agrees that its obligations
under this Guarantee Agreement constitute a guarantee of payment
when due and not of collection.
5.02 WAIVER AND PAYMENTS. The Guarantor hereby waives
demand of payment, presentment, protest and notice of protest,
non-payment, default or dishonor on any and all of the Debt
Securities hereby guaranteed. Payments by Guarantor to the
Indenture Trustee for the account of the Holders pursuant to this
Guarantee Agreement shall be made at the principal corporate
trust office of the Indenture Trustee at 000 Xxxxxxx Xxxxxx,
Xxxxx 21 W, New York, New York 10286, in lawful money of the
United States of America.
5.03 ABSOLUTE AND UNCONDITIONAL. The Guarantor hereby
agrees that its obligations hereunder shall be absolute and shall
be complete and binding. This Guarantee Agreement contains the
full agreement of the Guarantor and is not subject to any oral
conditions.
The Guarantor agrees that the obligations of the
Guarantor set forth in this Guarantee Agreement shall not be
subject to any counterclaim, set off, deduction, recoupment, or
suspension, or released, discharged or in any way affected or
impaired by, any circumstances or conditions whatsoever,
including, without limitation, any invalidity, irregularity or
unenforceability of any Debt Securities or the Indenture, any
failure to enforce the provisions of such Debt Securities or the
Indenture, or any waiver, modification or indulgence granted to
the Issuer with respect thereto by the Holders of such Debt
Securities or the Indenture Trustee or any other circumstances or
condition which may otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor.
The obligations of the Guarantor set forth herein
constitute the full recourse obligations of the Guarantor
enforceable against it to the full extent of all its assets and
properties. Without limiting the generality of the foregoing,
the Guarantor agrees that (a) repeated and successive demands may
be made and recoveries may be had hereunder as and when, from
time to time, the Issuer shall default under or fail to make
payments when due under the Indenture and that, notwithstanding
the recovery hereunder for or in respect of any given default or
failure to so comply by the Issuer under the Indenture, this
Guarantee Agreement shall remain in force and effect and shall
apply to each and every subsequent default, and (b) in the event
that any payment guaranteed hereunder is made by the Issuer, and
thereafter all or any part of such payment is recovered from the
Guarantee Trustee, the Indenture Trustee or any Holder of Debt
Securities upon the insolvency, bankruptcy or reorganization of
the Issuer, the liability of the Guarantor hereunder with respect
to such payment so paid and recovered shall continue and remain
in full force and effect as if, to the extent of such recovery,
such payment had not been made.
If (x) an event permitting a declaration of
acceleration under Section 802 of the Indenture shall at any time
have occurred and be continuing, (y) the Holders of not less than
33% in principal amount of all outstanding Debt Securities have,
or have attempted to, make such a declaration of acceleration,
and (z) such declaration of acceleration, or any consequences
thereof provided in the Indenture, shall at any time be prevented
by reason of the pendency against the Issuer of a case or
proceeding under any bankruptcy or insolvency law, the Guarantor
agrees that, solely for purposes of this Guarantee Agreement and
its obligations hereunder, such declaration of acceleration shall
be deemed to have been made, with all the attendant consequences
as provided in the Indenture as if declaration of acceleration
and the consequences thereof had been accomplished in accordance
with the terms of the Indenture.
5.04 WAIVER OF NOTICE. The Guarantor hereby expressly
waives notice from the Indenture Trustee of its acceptance and
reliance on this Guarantee Agreement.
5.05 DURATION. The obligations hereunder shall be
continuing and irrevocable until the date upon which all of the
outstanding Debt Securities hereby guaranteed have been, or have
been deemed pursuant to the provisions of Article Seven of the
Indenture to have been, fully paid and performed.
If, in accordance with the last paragraph of Section
701 of the Indenture, any Debt Securities are retroactively
deemed not to have been paid, and any satisfaction of the
Issuer's indebtedness in respect thereof is retroactively deemed
not to have been effected, the obligations of the Guarantor
hereunder shall be deemed retroactively not to have been
terminated or discharged.
5.06 CERTAIN RIGHTS, REMEDIES AND POWERS OF GUARANTEED
PERSONS. The Guarantee Trustee, the Indenture Trustee and the
Holders of Debt Securities 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 under 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.
5.07 GOVERNING LAW. This Guarantee Agreement shall be
construed in accordance with and governed by the laws of the
State of New York, without regard to conflict of laws principles
thereunder, except to the extent that the law of any other
jurisdiction shall be mandatorily applicable.
5.08 DELAYS. No failure, omission or delay on the
part of the Guarantee Trustee or the Indenture Trustee in
exercising any of their respective rights hereunder or in taking
any action to collect or enforce payment of any obligation to
which this Guarantee Agreement applies, against the Issuer, shall
operate as a waiver of any such right or in any manner prejudice
the rights of the Guarantee Trustee or the Indenture Trustee
against the Guarantor.
5.09 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.
ARTICLE VI
MISCELLANEOUS
6.01 AMENDMENTS. This Guarantee Agreement may only be
amended by an instrument in writing duly executed by the
Guarantor and the Guarantee Trustee. Except with respect to any
changes which add additional debt securities to this Guarantee or
which do not materially adversely affect the right of Holders (in
which case no consent of Holders will be required), this
Guarantee Agreement may only be amended with the prior written
approval of the Holders of a majority in aggregate principal
amount of outstanding Debt Securities; provided, that, the right
of any Holder to receive payment under this Guarantee Agreement
on the due date of the Debt Securities held by such Holder, or to
institute suit for the enforcement of such payment on or after
such due date, shall not be impaired or affected without the
consent of such Holder.
6.02 SUBSIDIARY. The Guarantor represents that the
Issuer is the wholly-owned corporate subsidiary of the Guarantor
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 of the Guarantor under this Guarantee
Agreement.
6.03 USURIOUS INTEREST. It is not the intention of
the Guarantee Trustee nor the Guarantor to obligate the Guarantor
to pay interest in excess of that legally permitted to be paid by
the Guarantor under applicable law and should it be determined
that the Guarantor is required to pay usurious interest on any
Debt Security, the obligations of the Guarantor shall be limited
to paying the maximum rate permitted under said applicable law.
This provision shall not limit in any respect, other than the
payment of such interest as may be usurious, the obligation of
the Guarantor to pay the principal amount due plus other amounts
due on the Debt Securities.
6.04 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 Debt Securities then outstanding; provided, however, that,
the obligations of the Guarantor under this Guarantee Agreement
may not be assigned or otherwise transferred without the prior
written consent of the Guarantee Trustee and the Indenture
Trustee except pursuant to any merger, consolidation, conveyance
or other transfer that would not constitute an Event of Default
under the Indenture, in which case no such prior written consent
shall be required.
6.05 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, telecopied 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 Guarantee Trustee and the Holders of the Debt
Securities:
FPL Group, Inc.
000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Facsimile No: ____________
Attention: _______________
(b) if given to the Issuer, at the Issuer's address
set forth below or such other address as the Issuer may give
notice of to the Guarantee Trustee and the Holders:
FPL Group Capital Inc
000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Facsimile No: __________
Attention:_______________
(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 Debt
Securities:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 X
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No: (000) 000-0000
Attention: Corporate Trust Administration
(d) if given to the Indenture Trustee, to the address
set forth below or such other address as the Indenture Trustee
may give notice of to the Guarantor and the Holders of the Debt
Securities:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 X
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No: (000) 000-0000
Attention: Corporate Trust Administration
(e) if given to any Holder, 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, telecopied 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.
6.06 BENEFIT. This Guarantee Agreement is solely for
the benefit of the Indenture Trustee for the benefit of the
Holders and, subject to Section 3.01(a), is not separately
transferable from the Debt Securities.
This instrument 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.
THIS GUARANTEE AGREEMENT is executed 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:
