GUARANTEE AGREEMENT
Between
FPL Group, Inc.
(as Guarantor)
and
The Bank of New York
(as Guarantee Trustee)
dated as of
June 1, 1999
TABLE OF CONTENTS
Page
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 Guaranteed Debt Securities 3
2.03 Reports by Guarantee Trustee 3
2.04 Periodic Reports by Guarantor 4
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 5
3.01 Powers and Duties of Guarantee Trustee 5
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 11
5.01 Guarantee 11
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 13
5.08 Delays 13
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 14
6.05 Notices 14
6.06 Benefit 15
CROSS-REFERENCE TABLE*
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
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 June 1, 1999, 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 Guaranteed 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 June 1, 1999 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 may issue debentures, notes or other evidence of
indebtedness, in one or more series, in an unlimited amount from time to time
(the "Debt Securities").
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.
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.
"Guaranteed Debt Securities" means all of the Debt
Securities other than the Debt Securities that, by their terms, are expressly
not entitled to the benefit of this Guarantee Agreement.
"Holder" means a Person in whose name a Guaranteed Debt
Security is registered in the Security Register (as defined 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.
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 Guaranteed Debt Securities.
(a) The Guarantor shall furnish or cause to be
furnished to the Guarantee Trustee (a) semiannually, not later than June 1
and December 1 in each year, commencing December 1, 1999 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. Not later than July
15 of each year, commencing July 15, 2000 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 Guaranteed 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 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.
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 Guaranteed 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 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 Guaranteed 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 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 Guaranteed 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, at the expense
of the Guarantor, 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
Guaranteed 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 Guaranteed Debt Securities.
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 101 Barclay Street, Floor 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 Guaranteed Debt Securities or the
Indenture, any failure to enforce the provisions of such Guaranteed Debt
Securities or the Indenture, or any waiver, modification or indulgence
granted to the Issuer with respect thereto by the Holders of such Guaranteed
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 Guaranteed 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 Guaranteed Debt Securities have made, 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
Guaranteed Debt Securities 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 Guaranteed 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
Guaranteed 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 that 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 written approval of the Holders of a majority in aggregate principal
amount of outstanding Guaranteed Debt Securities; provided, that, the right
of any Holder to receive payment under this Guarantee Agreement on the due
date of the Guaranteed 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 Guaranteed 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
Guaranteed 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 Guaranteed 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 Guaranteed Debt Securities:
FPL Group, Inc.
700 Universe Boulevard
Juno Beach, Florida 33408
Facsimile No: (561) 694-6299
Attention: Treasurer
(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
700 Universe Boulevard
Juno Beach, Florida 33408
Facsimile No: (561) 694-6299
Attention: Treasurer
(c) if given to the Guarantee Trustee, to the address
set forth below or such other address as the Guarantee Trustee may give
notice of to the Guarantor and the Holders of the Guaranteed Debt Securities:
The Bank of New York
101 Barclay Street, Floor 21 W
New York, New York 10286
Facsimile No: (212) 815-5915
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 Guaranteed Debt Securities:
The Bank of New York
101 Barclay Street, Floor 21 W
New York, New York 10286
Facsimile No: (212) 815-5915
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
Guaranteed 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, in New York, New York,
as of the day and year first above written.
FPL Group, Inc.,
as Guarantor
By: DILEK SAMIL
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Name: Dilek Samil
Title: Treasurer
The Bank of New York,
as Guarantee Trustee
By: ANNETTE L. KOS
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Name: Annette L. Kos
Title: Assistant Vice President