EXHIBIT 4(ax)
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT, dated as of March 15, 2004 (this "Agreement"), by and between FPL
Group, Inc., a Florida corporation ("FPL Group"), and FPL Group Capital Trust I,
a Delaware statutory trust (the "Trust").
WHEREAS, the Trust intends to issue its common trust securities (the "Common
Trust Securities") to FPL Group and receive junior subordinated debentures
("Debentures") from FPL Group Capital Inc ("FPL Group Capital") guaranteed on a
subordinated basis by FPL Group and issue its trust preferred securities (the
"Preferred Trust Securities") to the public with such powers, preferences and
special rights and restrictions as are set forth in the Amended and Restated
Trust Agreement of the Trust dated as of March 15, 2004, by and among FPL Group,
as depositor, and the Trustees named therein, as the same may be amended from
time to time (the "Trust Agreement");
WHEREAS, FPL Group Capital, the issuer of the Debentures, is a wholly-owned
subsidiary of FPL Group;
NOW, THEREFORE, in consideration of the acceptance of the Preferred Trust
Securities by each holder thereof, which acceptance FPL Group hereby agrees
shall benefit FPL Group and FPL Group Capital and which acceptance FPL Group
acknowledges will be made in reliance upon the execution and delivery of this
Agreement, FPL Group, including in its capacity as Debenture Guarantor, and the
Trust hereby agree as follows:
ARTICLE I
Section 1.01. Definitions. Each capitalized term used herein and not otherwise
defined herein shall have the definition of that term in the Trust Agreement.
Section 1.02. Assumption by FPL Group. Subject to the terms and conditions
hereof, FPL Group hereby irrevocably and unconditionally assumes the full
payment, when and as due, of any and all Obligations (as hereinafter defined) to
each person or entity to whom the Trust is now or hereafter becomes indebted or
liable (the "Beneficiaries"). As used herein, "Obligations" means any
indebtedness, expenses or liabilities of the Trust, other than obligations of
the Trust to pay to holders of any Preferred Trust Securities and Common Trust
Securities the amounts due such holders pursuant to the terms of the Preferred
Trust Securities, the Common Trust Securities, the Subordinated Indenture
(including Article Fourteen thereunder) or the Preferred Trust Securities
Guarantee Agreement referenced below, as the case may be. This Agreement is
intended to be for the sole benefit of, and to be enforceable by, all such
Beneficiaries, whether or not such Beneficiaries have received notice hereof.
Section 1.03. Term of Agreement. This Agreement shall terminate and be of no
further force and effect upon the date on which there are no Beneficiaries
remaining; provided, however, that this Agreement shall continue to be effective
or shall be reinstated, as the case may be, if at any time any holder of
Preferred Trust Securities or any Beneficiary must restore payment of any sums
paid under the Preferred Trust Securities, under any Obligation, under the
Preferred Trust Securities Guarantee Agreement dated the date hereof by and
between FPL Group and The Bank of New York, as guarantee trustee, or under this
Agreement for any reason whatsoever. This Agreement is continuing, irrevocable,
unconditional and absolute.
Section 1.04. Waiver of Notice. FPL Group hereby waives notice of acceptance of
this Agreement and of any Obligation to which it applies or may apply, and FPL
Group hereby waives presentment, demand for payment, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
Section 1.05. No Impairment. The obligations, covenants, agreements and duties
of FPL Group under this 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 extension of time for the payment by the Trust of all or any portion of
the Obligations or for the performance of any other obligation under, arising
out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of the
Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) 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 Trust or any of the assets of the
Trust.
Neither the Trust nor any Beneficiary shall have any obligation to give notice
to, or obtain the consent of, FPL Group with respect to the happening of any of
the foregoing.
Section 1.06. Enforcement. A Beneficiary may enforce this Agreement directly
against FPL Group, and FPL Group waives any right or remedy to require that any
action be brought against the Trust or any other person or entity before
proceeding against FPL Group.
ARTICLE II
Section 2.01. Binding Effect. All of the obligations, covenants and agreements
contained in this Agreement shall bind the successors, assigns, receivers,
trustees and representatives of FPL Group and shall inure to the benefit of the
Beneficiaries and their successors and assigns.
Section 2.02. Amendment. So long as there remains any Beneficiary or any
Preferred Trust Securities of any series shall be outstanding, this Agreement
shall not be modified or amended in any manner adverse to such Beneficiary or to
the holders of the Preferred Trust Securities.
Section 2.03. Notices. Any notice, request or other communication required or
permitted to be given hereunder shall be given in writing by delivering the same
against receipt therefor by facsimile transmission (confirmed by mail) or by
registered or certified mail, addressed as follows (and if so given, shall be
deemed given when mailed), to wit:
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FPL Group Capital Trust I
c/o Xxxx X. Xxxxxx, Administrative Trustee
000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
FPL Group, Inc.
000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Section 2.04. Governing Law. THIS 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, EXCEPT TO THE EXTENT THAT THE LAWS OF ANY OTHER JURISDICTION
ARE MANDATORILY APPLICABLE.
Section 2.05. Counterparts. This 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.
[SIGNATURE PAGE FOLLOWS]
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THIS AGREEMENT AS TO EXPENSES AND LIABILITIES is executed in New York, New York
as of the day and year first above written.
FPL GROUP, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Treasurer and Assistant Secretary
FPL GROUP CAPITAL TRUST I
By /s/ Xxxx X. Xxxxxx
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not in his individual capacity, but
solely as Administrative Trustee
