AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON
SEPTEMBER 29, 1998
REGISTRATION STATEMENT NO. 333-
=================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
FPL GROUP, INC. FLORIDA 59-2449419
FPL GROUP CAPITAL INC FLORIDA 59-2576416
(Exact name of (State or other (I.R.S. Employer
registrant as jurisdiction of Identification No.)
specified incorporation or
in its charter) organization)
700 Universe Boulevard
Juno Beach, Florida 33408
(561) 694-4000
(Address, including zip code, and telephone number, including
area code, of registrants' principal executive offices)
---------------
Dennis P. Coyle Jeffrey I. Mullens, Robert J. Reger, Jr.,
General Counsel P.A. Esq.
and Secretary Steel Hector & Davis Thelen Reid & Priest
FPL Group, Inc. LLP LLP
700 Universe 1900 Phillips Point 40 West 57th Street
Boulevard West New York, New York
Juno Beach, 777 South Flagler Drive 10019
Florida 33408 West Palm Beach, (212) 603-2000
(561) 694-4644 Florida 33401
(561) 650-7257
(Names and addresses, including zip codes, and telephone numbers,
including area codes, of agents for service)
---------------
It is respectfully requested that the Commission send copies of
all notices, orders and communications to:
S. K. Waite, Esq.
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004
(212) 858-1000
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE
PUBLIC: From time to time after the effective date of this
registration statement as determined by market conditions and
other factors.
---------------
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment
plans, please check the following box. [ ]
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment
plans, check the following box. [X]
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
[ ]
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box. [ ]
<TABLE>
CALCULATION OF REGISTRATION FEE
===========================================================================
PROPOSED PROPOSED
TITLE OF EACH MAXIMUM MAXIMUM
CLASS OF OFFERING AGGREGATE AMOUNT OF
SECURITIES TO AMOUNT TO BE PRICE PER OFFERING REGISTRATION
BE REGISTERED REGISTERED UNIT (1) PRICE (1) FEE
FPL Group $300,000,000 100% $ 300,000,000 $ 88,500
Capital Inc
Debt
Securities
FPL Group, $625,000,000(2) (3) (3) (4)
Inc. Guarantee
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(1) Estimated solely for purposes of calculating the
registration fee pursuant to Rule 457(o) under the
Securities Act of 1933, as amended (the "Securities Act").
(2) The amount of FPL Group, Inc. Guarantee registered pursuant
hereto is sufficient to guarantee the FPL Group Capital Inc
Debt Securities registered pursuant hereto and an aggregate
of $325,000,000 of unissued FPL Group Capital Inc Debt
Securities registered pursuant to Registration Statement File
No. 33-47813 and Registration Statement File No. 33-69786.
(3) The value attributable to the FPL Group, Inc. Guarantee, if
any, is reflected in the market price of the FPL Group
Capital Inc Debt Securities registered pursuant hereto or
pursuant to Registration Statement File No. 33-47813 or
Registration Statement File No. 33-69786.
(4) Pursuant to Rule 457(n) under the Securities Act, no
separate fee for the FPL Group, Inc. Guarantee
attributable to the FPL Group Capital Inc Debt Securities
registered pursuant hereto shall be payable. No separate fee
for the FPL Group, Inc. Guarantee attributable to the FPL
Group Capital Inc Debt Securities previously registered
pursuant to Registration Statement File No. 33-47813 and
Registration Statement File No. 33-69786 shall be payable
as such fee was paid with such previously filed Registration
Statements.
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT, THE PROSPECTUS
FILED AS PART OF THIS REGISTRATION STATEMENT WILL BE USED AS A
COMBINED PROSPECTUS IN CONNECTION WITH THIS REGISTRATION
STATEMENT, REGISTRATION STATEMENT FILE NO. 33-47813 AND
REGISTRATION STATEMENT FILE NO. 33-69786.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON
SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE
DATE UNTIL THE REGISTRANTS SHALL FILE A FURTHER AMENDMENT WHICH
SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL
THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OR UNTIL THIS REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT
TO SAID SECTION 8(A), MAY DETERMINE.
=================================================================
<PAGE>
SUBJECT TO COMPLETION, DATED SEPTEMBER , 1998
---------
PROSPECTUS
$625,000,000
FPL GROUP CAPITAL INC
DEBT SECURITIES
ABSOLUTELY AND UNCONDITIONALLY GUARANTEED BY
FPL GROUP, INC.
FPL Group Capital Inc, a Florida corporation (the "Company"),
which is a wholly-owned subsidiary of FPL Group, Inc., a Florida
corporation ("FPL Group"), intends from time to time to issue and
sell up to $625,000,000 aggregate principal amount of its
unsecured debt securities entitled notes, debentures or other
designations of indebtedness ("Offered Debt Securities") on terms
to be determined when the agreement to sell is made or at the
time of sale. For each issue of Offered Debt Securities for
which this Prospectus is being delivered there is an accompanying
Prospectus Supplement or Prospectus Supplements (each a
"Prospectus Supplement") that set forth the series designation,
aggregate principal amount of the issue, purchase price, maturity
date, interest rate or rates (which may be either fixed or
variable) and/or the method of determining such rate or rates,
times of payment of interest, whether all or a portion of the
Offered Debt Securities will be issued in global form, redemption
terms, if any, and other specific terms of the offering and the
Offered Debt Securities.
The Offered Debt Securities will be fully and unconditionally
guaranteed pursuant to a Guarantee Agreement (the "Guarantee")
between FPL Group, as Guarantor (the "Guarantor"), and The Bank
of New York, as Guarantee Trustee (the "Guarantee Trustee"). The
Guarantee will be an unsecured obligation of FPL Group, and will
rank pari passu with all other unsecured and unsubordinated
indebtedness of FPL Group.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR BY ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The Company may sell the Offered Debt Securities directly or
through agents designated from time to time or to or through
underwriters or dealers or a group of underwriters. See "Plan of
Distribution." If any agents of the Company or any underwriters
are involved in the sale of the Offered Debt Securities in
respect of which this Prospectus is being delivered, the names of
such agents or underwriters, the initial price to the public, any
applicable commissions or discounts and the net proceeds to the
Company with respect to such Offered Debt Securities are set
forth in the Prospectus Supplement. See "Plan of Distribution"
for possible indemnification arrangements for underwriters or
agents.
THE DATE OF THIS PROSPECTUS IS SEPTEMBER__, 1998
Information contained herein is subject to completion or
amendment. A registration statement relating to these securities
has been filed with the Securities and Exchange Commission.
These securities may not be sold nor may offers to buy be
accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell
or the solicitation of an offer to buy nor shall there be any
sale of these securities in any jurisdiction in which such offer,
solicitation, or sale would be unlawful prior to registration or
qualification under the securities laws of any such jurisdiction.
<PAGE>
AVAILABLE INFORMATION
FPL Group is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended ("Exchange Act"), and
in accordance therewith files reports and other information with
the Securities and Exchange Commission ("SEC"). Such reports and
other information can be inspected and copied at the public
reference facilities maintained by the SEC at Room 1024, 450
Fifth Street, N.W., Washington, D.C. 20549 and at the SEC's
Regional Offices at 7 World Trade Center, Suite 1300, New York,
New York 10048, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661 and 1401 Brickell Avenue, Suite 200, Miami,
Florida 33131. Copies of such material can also be obtained from
the Public Reference Section of the SEC at 450 Fifth Street,
N.W., Washington, D.C. 20549, at prescribed rates. In addition,
the SEC maintains a World Wide Web site (http://www.sec.gov) that
contains reports and other information filed by FPL Group. In
addition, securities of FPL Group are listed on the New York
Stock Exchange, and reports, proxy statements and other
information concerning FPL Group may be inspected at the offices
of The New York Stock Exchange, Inc. ("NYSE"), 20 Broad Street,
New York, New York 10005.
The Company and FPL Group have filed with the SEC a combined
registration statement on Form S-3 (together with all exhibits
thereto, the "Registration Statement") under the Securities Act
of 1933, as amended (the "Securities Act"), with respect to the
securities offered hereby. This Prospectus does not contain all
the information set forth in the Registration Statement and the
exhibits and schedules thereto, certain portions of which have
been omitted pursuant to the rules and regulations of the SEC.
The information so omitted may be obtained from the SEC's
principal office in Washington, D.C. upon payment of the fees
prescribed by the SEC. For further information, reference is
hereby made to the Registration Statement. Any statements
contained herein concerning the provisions of any document filed
as an exhibit to the Registration Statement or otherwise filed
with the SEC are not necessarily complete, and in each instance
reference is made to the copy of such document so filed, each
such statement being qualified in its entirety by such reference.
In 1994, the SEC granted conditional relief to the Company
from the reporting requirements of the Exchange Act, and
therefore, the Company has not, since such time, filed periodic
reports and other information pursuant to the requirements of the
Exchange Act. Since such time, FPL Group has included in its
Exchange Act reports summarized financial information relating to
the Company as described in Rule 1-02(aa)(1) of Regulation S-X
promulgated under the Securities Act. FPL Group will continue to
so include this information but does not intend to include in its
consolidated financial statements any other separate financial
information with respect to the Company because the Company has
determined that this information is not material to the holders
of the Offered Debt Securities.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by FPL Group with the SEC are
incorporated by reference in this prospectus:
1. Annual Report on Form 10-K for the year ended December 31,
1997.
2. Quarterly Reports on Form 10-Q for the quarters ended March
31, 1998 and June 30, 1998.
All documents filed by FPL Group pursuant to Sections 13(a),
13(c), 14, or 15(d) of the Exchange Act subsequent to the date of
the initial Registration Statement of which this Prospectus is a
part and prior to the effectiveness of the Registration Statement
shall be deemed to be incorporated by reference into this
Prospectus and to be a part hereof. All documents filed by FPL
Group with the SEC pursuant to Section 13(a), 15(c), 14, or 15(d)
of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the securities
covered by this Prospectus shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the
date of filing such documents.
2
<PAGE>
Any statement contained in a document incorporated by
reference, or deemed to be incorporated by reference, shall be
deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in
any other subsequently filed document or in any accompanying
Prospectus Supplement modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this
Prospectus.
FPL Group undertakes to provide without charge to each person,
including any beneficial owner, to whom this Prospectus is
delivered, upon written or oral request of any such person, a
copy of any and all of the documents referred to above that have
been incorporated by reference in this Prospectus excluding the
exhibits thereto (unless such exhibits are specifically
incorporated by reference into such documents). Requests for such
copies should be directed to: Robert J. Reger, Jr., Esq., Thelen
Reid & Priest LLP, 40 West 57th Street, New York, New York 10019,
telephone (212) 603-2000.
FPL Group will prepare and file annually with The Bank of New
York, the trustee under the Indenture (as hereinafter defined),
pursuant to which the Offered Debt Securities will be issued, its
audited financial statements (with an opinion expressed by
independent public accountants) for the prior fiscal year and,
quarterly, its unaudited financial statements.
SAFE HARBOR STATEMENT UNDER
THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995
In connection with the safe harbor provisions of the Private
Securities Litigation Reform Act of 1995 ("Reform Act"), FPL
Group and the Company are hereby filing cautionary statements
identifying important factors that could cause FPL Group's and
the Company's actual results to differ materially from those
projected in forward-looking statements (as such term is defined
in the Reform Act) made by or on behalf of FPL Group or the
Company which are made in this registration statement, in
presentations, in response to questions or otherwise. Any
statements that express, or involve discussions as to,
expectations, beliefs, plans, objectives, assumptions or future
events or performance (often, but not always, through the use of
words or phrases such as "will likely result", "are expected to",
"will continue", "is anticipated", "estimated", "projection" or
"outlook") are not statements of historical facts and may be
forward-looking. Forward-looking statements involve estimates,
assumptions and uncertainties that could cause actual results to
differ materially from those expressed in the forward-looking
statements. Accordingly, any such statements are qualified in
their entirety by reference to, and are accompanied by, the
following important factors that could cause FPL Group's or the
Company's actual results to differ materially from these
contained in forward-looking statements made by or on behalf of
FPL Group or the Company.
Any forward-looking statement speaks only as of the date on
which such statement is made, and neither FPL Group nor the
Company undertakes any obligation to update any forward-looking
statement or statements to reflect events or circumstances after
the date on which such statement is made or to reflect the
occurrence of unanticipated events. New factors emerge from time
to time, and it is not possible for management to predict all of
such factors, nor can it assess the impact of each such factor on
the business or the extent to which any factor, or combination of
factors, may cause actual results to differ materially from those
contained in any forward-looking statements.
Some important factors that could cause actual results or
outcomes to differ materially from those discussed in the
forward-looking statements include prevailing governmental
policies and regulatory actions with respect to allowed rates of
return, industry and rate structure, operation of nuclear power
facilities, acquisition and disposal of assets and facilities,
operation and construction of plant facilities, recovery of fuel
and purchased power costs, decommissioning costs, and present or
prospective wholesale and retail competition (including but not
limited to retail wheeling and transmission costs).
3
<PAGE>
The business and profitability of FPL Group and the Company
are also influenced by economic and geographic factors including
political and economic risks, changes in and compliance with
environmental and safety laws and policies, weather conditions
(including natural disasters such as hurricanes), population
growth rates and demographic patterns, competition for retail and
wholesale customers, pricing and transportation of commodities,
market demand for energy from plants or facilities, changes in
tax rates or policies or in rates of inflation, unanticipated
development project delays or changes in project costs,
unanticipated changes in operating expenses and capital
expenditures, capital market conditions, competition for new
energy development opportunities, legal and administrative
proceedings (whether civil, such as environmental, or criminal)
and settlements, and any unanticipated impact of the year 2000,
including delays or changes in cost of year 2000 compliance, or
the failure of major suppliers, customers and others with whom
FPL Group or the Company does business to resolve their own year
2000 issues on a timely basis.
All such factors are difficult to predict, contain
uncertainties which may materially affect actual results, and are
beyond the control of FPL Group and the Company.
THE COMPANY
The Company, a Florida corporation incorporated in 1985 and a
wholly-owned subsidiary of FPL Group, holds the capital stock and
provides funding for the operations of FPL Group's non-utility
subsidiaries. The Company's business activities mainly consist of
independent power projects and agricultural operations. Reference
is made to FPL Group's latest Annual Report on Form 10-K for a
description of the Company's business. The Company's principal
executive offices are located at 700 Universe Boulevard, Juno
Beach, Florida 33408, and its telephone number is (561) 694-4000.
FPL GROUP, INC.
FPL Group, a Florida corporation, is a holding company. FPL
Group's principal subsidiary, Florida Power & Light Company, is
engaged in the generation, transmission, distribution and sale of
electric energy in Florida. Other operations are conducted
through the Company. FPL Group's principal executive offices are
located at 700 Universe Boulevard, Juno Beach, Florida 33408,
telephone (561) 694-4000.
USE OF PROCEEDS
Except as otherwise described in the Prospectus Supplement
accompanying this Prospectus, the net proceeds to be received
from the sale of the Offered Debt Securities will be added to the
Company's general funds and will be used to repay all or a
portion of short-term borrowings outstanding at the time of such
sales, to redeem or purchase certain of the Company's outstanding
long-term debt obligations or for other corporate purposes.
Proceeds not immediately required for the foregoing purposes will
be temporarily invested in short-term instruments.
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the consolidated ratio of
earnings to fixed charges for FPL Group for the periods
indicated:
Six
Months
Ended
June 30, Years ended December 31,
-------- -----------------------------------------------
1998 1997 1996 1995 1994 1993
---- ---- ---- ---- ---- ----
4.10 3.97 4.08 3.86 3.45 2.74
4
<PAGE>
DESCRIPTION OF OFFERED DEBT SECURITIES
The Offered Debt Securities will be issued in one or more
series under an Indenture (as amended and
supplemented from time to time, the "Indenture") between the
Company and The Bank of New York or other financial institutions
to be named, as Trustee (each an "Indenture Trustee"), which is
filed as an exhibit to the Registration Statement of which this
Prospectus forms a part. The following description of the terms
of the Offered Debt Securities does not purport to be complete
and is qualified in its entirety by reference to (i) the
Indenture and (ii) one or more Board of Directors resolutions or
officer's certificates establishing the Offered Debt Securities
to which a form of Offered Debt Security is attached. Whenever
particular provisions or defined terms in the Indenture are
referred to under this DESCRIPTION OF OFFERED DEBT SECURITIES,
such provisions or defined terms are incorporated by reference
herein.
GENERAL. The Indenture provides for the issuance of
-------
debentures, notes or other evidence of indebtedness by the
Company in an unlimited amount from time to time. The Offered
Debt Securities and all other debentures, notes or other
evidences of indebtedness of the Company issued under the
Indenture are collectively referred to herein as the "Debt
Securities."
The Offered Debt Securities of each series will be unsecured
obligations of the Company. The Indenture does not limit the
Company's ability to provide collateral security with respect to
other Debt Securities. All Debt Securities issued under the
Indenture will rank equally and ratably with all other Debt
Securities issued under the Indenture, except to the extent that
the Company elects to provide collateral security with respect to
any Debt Security without providing such collateral security
to all Outstanding Debt Securities. The Indenture does not
limit other unsecured debt. The Company is a holding company
that derives substantially all of its income from its
subsidiaries. The Debt Securities therefore will be effectively
subordinated to debt and preferred stock at the subsidiary level.
The Indenture contains no limit on the amount of debt and
preferred stock issuable by the Company's subsidiaries.
The applicable Prospectus Supplement or Prospectus Supplements
will describe the following terms of the Offered Debt Securities:
(1) the title of the Offered Debt Securities; (2) any limit upon
the aggregate principal amount of the Offered Debt Securities;
(3) the date or dates on which the principal of the Offered Debt
Securities is payable; (4) the rate or rates at which the Offered
Debt Securities will bear interest, the date or dates from which
any such interest will accrue, the Interest Payment Dates on
which any such interest will be payable and the Regular Record
Date for any interest payable on any Interest Payment Date and
the Person or Persons to whom interest on such Offered Debt
Securities will be payable on any Interest Payment Date, if other
than the Persons in whose names such Offered Debt Securities are
registered at the close of business on the Regular Record Date
for such interest; (5) the place or places at which or methods by
which the Offered Debt Securities will be payable and
registration of transfer or exchange of the Offered Debt
Securities may be effected and notices and demands to or upon the
Company in respect of the Offered Debt Securities and the
Indenture may be served; the Security Registrar and any Paying
Agent or Agents for such Offered Debt Securities; and, if such is
the case, that the principal of such Offered Debt Securities will
be payable without presentment or surrender thereof; (6) the
period or periods within, or date or dates on which, the price or
prices at which and the terms and conditions upon which Offered
Debt Securities may be redeemed, in whole or in part, at the
option of the Company and any restrictions on such redemptions;
(7) the obligation or obligations, if any, of the Company to
redeem or purchase any of the Offered Debt Securities pursuant to
any sinking fund or other mandatory redemption provisions or at
the option of the Holder thereof, and the period or periods
within which, or the date or dates on which, the price or prices
at which and the terms and conditions upon which the Offered Debt
Securities will be redeemed or purchased, in whole or in part,
pursuant to such obligation, and applicable exceptions to the
requirements of a notice of redemption in the case of mandatory
redemption or redemption at the option of the Holder; (8) the
denominations in which any Offered Debt Securities will be
issuable, if other than denominations of $1,000 and any integral
multiple thereof; (9) the currency or currencies in which the
principal of or any premium or interest on the Offered Debt
Securities will be payable (if other than in Dollars); (10) if
the principal of or any premium or interest on the Offered Debt
Securities is to be payable, at the election of the Company or
the Holder thereof, in a coin or currency other than that in
which the Offered Debt Securities are stated to be payable, the
period or periods within which and the terms and conditions upon
5
<PAGE>
which, such election is to be made; (11) if the principal of or
premium or interest on the Offered Debt Securities is to be
payable, or is to be payable at the election of the Company or a
Holder thereof, in securities or other property, the type and
amount of such securities or other property, and the period or
periods within which, and the terms and conditions upon which,
any such election may be made; (12) if the amount payable in
respect of principal of or any premium or interest on the Offered
Debt Securities may be determined with reference to an index or
other fact or event ascertainable outside of the Indenture, the
manner in which such amounts will be determined; (13) if other
than the principal amount thereof, the portion of the principal
amount of the Offered Debt Securities which will be payable upon
declaration of acceleration of the Maturity thereof; (14) any
Events of Default, in addition to those specified in the
Indenture, with respect to the Offered Debt Securities and any
covenants of the Company for the benefit of the Holders of the
Offered Debt Securities, in addition to those specified in the
Indenture; (15) the terms, if any, pursuant to which the Offered
Debt Securities may be converted into or exchanged for shares of
capital stock or other securities of the Company or any other
Person; (16) the obligations or instruments, if any, which will
be considered to be Eligible Obligations in respect of such
Offered Debt Securities denominated in a currency other than
Dollars or in a composite currency, and any additional or
alternative provisions for the reinstatement of the Company's
indebtedness in respect of such Offered Debt Securities after the
satisfaction and discharge thereof; (17) if the Offered Debt
Securities are to be issued in global form, (i) any limitations
on the rights of the Holder or Holders of such Offered Debt
Securities to transfer or exchange the same or to obtain the
registration of transfer thereof, (ii) any limitations on the
rights of the Holder or Holders thereof to obtain certificates
therefor in definitive form in lieu of temporary form and (iii)
any and all other matters incidental to such Offered Debt
Securities; (18) if the Offered Debt Securities are to be
issuable as bearer securities any and all matters incidental
thereto; (19) to the extent not addressed in item (17) above, any
limitations on the rights of the Holders of the Offered Debt
Securities to transfer or exchange the Offered Debt Securities or
to obtain the registration of transfer thereof, and if a service
charge will be made for the registration of transfer or exchange
of the Offered Debt Securities, the amount or terms thereof; (20)
any exceptions to the provisions governing payments due on legal
holidays or any variations in the definition of Business Day with
respect to such Offered Debt Securities; (21) other than the
Guarantee, any collateral security, assurance, or guarantee for
the Offered Debt Securities; and (22) any other terms of the
Offered Debt Securities, not inconsistent with the provisions of
the Indenture. (Indenture, Section 301).
Offered Debt Securities may be sold at a discount below their
principal amount. Certain special United States Federal income
tax considerations, if any, applicable to Offered Debt Securities
sold at an original issue discount may be described in the
applicable Prospectus Supplement. In addition, certain special
United States Federal income tax or other considerations, if any,
applicable to any Offered Debt Securities which are denominated
in a currency or currency unit other than Dollars may be
described in the applicable Prospectus Supplement.
Except as may otherwise be described in the applicable
Prospectus Supplement, the covenants contained in the Indenture
would not afford Holders of Offered Debt Securities protection in
the event of a highly-leveraged transaction involving the
Company.
PAYMENT AND PAYING AGENTS. Except as may be provided in the
-------------------------
applicable Prospectus Supplement, interest on each Offered Debt
Security payable on each Interest Payment Date will be paid to
the Person in whose name such Offered Debt Security is registered
as of the close of business on the Regular Record Date relating
to such Interest Payment Date; provided, however, that interest
payable at stated maturity will be paid to the Person to whom
principal is paid. However, if there has been a default in the
payment of interest on any Offered Debt Security, such defaulted
interest may be payable to the Holder of such Offered Debt
Security as of the close of business on a date selected by the
Indenture Trustee which is not more than 15 days and not less
than 10 days prior to the date proposed by the Company for
payment on such defaulted interest or in any other lawful manner
not inconsistent with the requirements of any securities exchange
on which such Offered Debt Security may be listed, if the
Indenture Trustee deems such manner of payment practicable
(Indenture, Section 307).
6
<PAGE>
Unless otherwise specified in the applicable Prospectus
Supplement, the principal of and premium, if any, and interest
on, the Offered Debt Securities at Maturity will be payable upon
presentation of the Offered Debt Securities at the principal
corporate trust office of The Bank of New York, in The City of
New York, as Paying Agent for the Company. The Company may
change the Place of Payment on the Offered Debt Securities, may
appoint one or more additional Paying Agents (including the
Company) and may remove any Paying Agent, all at its discretion
(Indenture, Section 602).
REGISTRATION AND TRANSFER. Unless otherwise specified in the
-------------------------
applicable Prospectus Supplement, the transfer of Offered Debt
Securities may be registered, and Offered Debt Securities may be
exchanged for other Offered Debt Securities of the same series or
Tranche, of authorized denominations and of like tenor and
aggregate principal amount, at the principal corporate trust
office of The Bank of New York in The City of New York, as
Security Registrar for the Offered Debt Securities. The Company
may change the place for registration of transfer and exchange of
the Debt Securities and may designate one or more additional
places for such registration and exchange, all at its discretion.
Except as otherwise provided in the applicable Prospectus
Supplement, no service charge will be made for any transfer or
exchange of the Offered Debt Securities, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of the Offered Debt
Securities. The Company will not be required to execute or to
provide for the registration of transfer of, or the exchange of,
(a) any Debt Security during a period of 15 days prior to giving
any notice of redemption or (b) any Debt Security selected for
redemption in whole or in part, except the unredeemed portion of
any Debt Security being redeemed in part (Indenture, Section
305).
DEFEASANCE. The principal amount of any series of Debt
----------
Securities issued under the Indenture will be deemed to have been
paid for purposes of the Indenture and the entire indebtedness of
the Company in respect thereof will be deemed to have been
satisfied and discharged if there shall have been irrevocably
deposited with the Indenture Trustee or any Paying Agent, in
trust: (a) money in an amount which will be sufficient, or (b)
in the case of a deposit made prior to the Maturity of the Debt
Securities of such series, Eligible Obligations (as defined
below), the principal of and the interest on which when due,
without any regard to reinvestment thereof, will provide moneys
which, together with the money, if any, deposited with or held by
the Indenture Trustee, will be sufficient, or (c) a combination
of (a) and (b) which will be sufficient, to pay when due the
principal of and premium, if any, and interest, if any, due and
to become due on the Debt Securities of such series or portions
thereof, on or prior to Maturity. For this purpose, Eligible
Obligations include direct obligations of, or obligations
unconditionally guaranteed by, the United States entitled to the
benefit of the full faith and credit thereof and certificates,
depositary receipts or other instruments which evidence a direct
ownership interest in such obligations or in any specific
interest or principal payments due in respect thereof and which
do not contain provisions permitting the redemption or other
prepayment thereof at the option of the issuer thereof
(Indenture, Section 701).
CONSOLIDATION, MERGER, AND SALE OF ASSETS. Under the terms of
-----------------------------------------
the Indenture, the Company may not consolidate with or merge into
any other entity or convey, transfer or lease its properties and
assets substantially as an entirety to any entity, unless (i) the
entity formed by such consolidation or into which the Company is
merged or the entity which acquires by conveyance or transfer, or
which leases, the property and assets of the Company
substantially as an entirety shall be a entity organized and
existing under the laws of the United States, any state thereof
or the District of Columbia and such entity expressly assumes the
Company's obligations on all Outstanding Debt Securities and
under the Indenture, (ii) immediately after giving effect to the
transaction, no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing, and (iii) the
Company shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel as provided in
the Indenture (Indenture, Section 1101). The terms of the
Indenture do not restrict the Company in a merger in which the
Company is the surviving entity.
EVENTS OF DEFAULT. Each of the following will constitute an
-----------------
Event of Default under the Indenture with respect to the Debt
Securities of any series: (a) failure to pay any interest on the
Debt Securities of such series within 30 days after the same
becomes due and payable; (b) failure to pay principal or premium,
if any, on the Debt Securities of such series when due and
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<PAGE>
payable; (c) failure to perform, or breach of, any other covenant
or warranty of the Company in the Indenture (other than a
covenant or warranty of the Company in the Indenture solely for
the benefit of one or more series of Debt Securities other than
such series) for 90 days after written notice to the Company by
the Indenture Trustee, or to the Company and the Indenture
Trustee by the Holders of at least 33% in principal amount of the
Debt Securities of such series Outstanding under the Indenture as
provided in the Indenture; (d) certain events of bankruptcy,
insolvency or reorganization of the Company; and (e) any other
Event of Default specified with respect to the Debt Securities of
such series (Indenture, Section 801).
An Event of Default with respect to the Debt Securities of a
particular series may not necessarily constitute an Event of
Default with respect to Debt Securities of any other series
issued under the Indenture.
REMEDIES. If an Event of Default applicable to the Debt
--------
Securities of one or more series, but not applicable to all
Outstanding Debt Securities, shall have occurred and be
continuing, either the Indenture Trustee or the Holders of not
less than 33% in aggregate principal amount of the Debt
Securities of each such series may then declare the principal
amount of all Debt Securities of such series (or, if any of the
Debt Securities of such series are Discount Securities, such
portion of the principal amount of such Debt Securities as may be
specified in the terms thereof as contemplated by the Indenture)
and interest accrued thereon to be due and payable immediately,
by a notice in writing to the Company (and to the Indenture
Trustee if given by Holders), and, upon receipt by the Company of
notice of such declaration of acceleration, such principal amount
(or specified amount) and interest accrued thereon shall become
immediately due and payable. If an Event of Default applicable to
all Outstanding Debt Securities, including any Event of Default
arising out of the bankruptcy, insolvency or reorganization of
the Company, shall have occurred and be continuing, either the
Indenture Trustee or the Holders of not less than 33% in
principal amount of all Debt Securities then Outstanding
(considered as one class), and not the Holders of the Debt
Securities of any one of such series, may declare the principal
of all Debt Securities (or, if any of the Debt Securities of such
series are Discount Securities, such portion of the principal
amount of such Debt Securities as may be specified in the terms
thereof as contemplated by the Indenture) and interest accrued
thereon to be due and payable immediately, by a notice in writing
to the Company (and to the Indenture Trustee if given by
Holders), and, upon receipt by the Company of notice of such
declaration of acceleration, such principal amount (or specified
amount) and interest accrued thereon shall become immediately due
and payable.
At any time after the declaration of acceleration with respect
to the Debt Securities of any series has been made and before a
judgment or decree for payment of the money due has been
obtained, the Event or Events of Default giving rise to such
declaration of acceleration will, without further act, be deemed
to have been waived, and such declaration and its consequences
will, without further act, be deemed to have been rescinded and
annulled, if
(a) the Company has paid or deposited with the Indenture
Trustee a sum sufficient to pay
(1) all overdue interest on all Debt Securities of such
series;
(2) the principal of and premium, if any, on any Debt
Securities of such series which have become due
otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed
therefor in such Debt Securities;
(3) interest upon overdue interest at the rate or rates
prescribed therefor in such Debt Securities, to the
extent that payment of such interest is lawful; and
(4) all amounts due to the Indenture Trustee under the
Indenture; and
(b) any other Event or Events of Default with respect to Debt
Securities of such series, other than the nonpayment of the
principal of the Debt Securities of such series which has become
due solely by such declaration of acceleration, have been cured
or waived as provided in the Indenture (Indenture, Section 802).
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<PAGE>
Subject to the provisions of the Indenture relating to the
duties of the Indenture Trustee in case an Event of Default shall
occur and be continuing, the Indenture Trustee will be under no
obligation to exercise any of its rights or powers under the
Indenture at the request or direction of any of the Holders,
unless such Holders shall have offered to the Indenture Trustee
reasonable indemnity (Indenture, Section 903). If an Event of
Default has occurred and is continuing in respect of a series of
Debt Securities, subject to such provisions for the
indemnification of the Indenture Trustee, the Holders of a
majority in principal amount of the Outstanding Debt Securities
of such series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to
the Indenture Trustee, or exercising any trust or power conferred
on the Indenture Trustee, with respect to the Debt Securities of
such series; provided, however, that if an Event of Default
occurs and is continuing with respect to more than one series of
Debt Securities, the Holders of a majority in aggregate principal
amount of the Outstanding Debt Securities of all such series,
considered as one class, will have the right to make such
direction, and not the Holders of the Debt Securities of any one
of such series; and provided, further, that such direction will
not be in conflict with any rule of law or with the Indenture,
and could not involve the Indenture Trustee in personal liability
in circumstances where indemnity would not, in the Indenture
Trustee's sole discretion, be adequate (Indenture, Section 812).
No Holder of Debt Securities of any series will have any right
to institute any proceeding with respect to the Indenture, or for
the appointment of a receiver or a trustee, or for any other
remedy thereunder, unless (i) such Holder has previously given to
the Indenture Trustee written notice of a continuing Event of
Default with respect to the Debt Securities of such series, (ii)
the Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of all series in respect of which an
Event of Default shall have occurred and be continuing,
considered as one class, have made written request to the
Indenture Trustee, and such Holder or Holders have offered
reasonable indemnity to the Indenture Trustee to institute such
proceeding in respect of such Event of Default in its own name as
trustee and (iii) the Indenture Trustee has failed to institute
any proceeding, and has not received from the Holders of a
majority in aggregate principal amount of the Outstanding Debt
Securities of such series a direction inconsistent with such
request, within 60 days after such notice, request and offer
(Indenture, Section 807). However, such limitations do not apply
to a suit instituted by a Holder of a Debt Security for the
enforcement of payment of the principal of or any premium or
interest on such Debt Security on or after the applicable due
date specified in such Debt Security (Indenture, Section 808).
The Company will be required to furnish to the Indenture
Trustee annually a statement by an appropriate officer as to such
officer's knowledge of the Company's compliance with all
conditions and covenants under the Indenture, such compliance to
be determined without regard to any period of grace or
requirement of notice under the Indenture (Indenture, Section
606).
MODIFICATION AND WAIVER. Without the consent of any Holder of
-----------------------
Debt Securities, the Company and the Indenture Trustee may enter
into one or more supplemental indentures for any of the following
purposes: (a) to evidence the assumption by any permitted
successor to the Company of the covenants of the Company in the
Indenture and in the Debt Securities; or (b) to add one or more
covenants of the Company or other provisions for the benefit of
all Holders or for the benefit of the Holders of, or to remain in
effect only so long as there shall be Outstanding, Debt
Securities of one or more specified series, or one or more
specified Tranches thereof, or to surrender any right or power
conferred upon the Company by the Indenture; or (c) to add any
additional Events of Default with respect to Outstanding Debt
Securities; or (d) to change or eliminate any provision of the
Indenture or to add any new provision to the Indenture, provided
that if such change, elimination or addition will adversely
affect the interests of the Holders of Debt Securities of any
series or Tranche in any material respect, such change,
elimination or addition will become effective with respect to
such series or Tranche only (1) when the consent of the Holders
of Debt Securities of such series or Tranche has been obtained in
accordance with the Indenture, or (2) when no Debt Securities of
such series or Tranche remain Outstanding under the Indenture; or
(e) to provide collateral security for all but not part of the
Debt Securities; or (f) to establish the form or terms of Debt
Securities of any other series or Tranche as permitted by the
Indenture; or (g) to provide for the authentication and delivery
of bearer securities and coupons appertaining thereto
representing interest, if any, thereon and for the procedures for
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<PAGE>
the registration, exchange and replacement thereof and for the
giving of notice to, and the solicitation of the vote or consent
of, the Holders thereof, and for any and all other matters
incidental thereto; or (h) to evidence and provide for the
acceptance of appointment of a successor Indenture Trustee with
respect to the Debt Securities of one or more series and to add
to or change any of the provisions of the Indenture as shall be
necessary to provide for or to facilitate the administration of
the trusts under the Indenture by more than one trustee; or (i)
to provide for the procedures required to permit the utilization
of a non certificated system of registration for the Debt
Securities of all or any series or Tranche; or (j) to change any
place where (1) the principal of and premium, if any, and
interest, if any, on all or any series or Tranche of Debt
Securities shall be payable, (2) all or any series or Tranche of
Debt Securities may be surrendered for registration of transfer
or exchange and (3) notices and demands to or upon the Company in
respect of Debt Securities and the Indenture may be served; or
(k) to cure any ambiguity or inconsistency or to add or change
any other provisions with respect to matters and questions
arising under the Indenture, provided such changes or additions
shall not adversely affect the interests of the Holders of Debt
Securities of any series or Tranche in any material respect
(Indenture, Section 1201).
The Holders of a majority in aggregate principal amount of the
Debt Securities of all series then Outstanding may waive
compliance by the Company with certain restrictive provisions of
the Indenture (Indenture, Section 607). The Holders of a
majority in principal amount of the Outstanding Debt Securities
of any series may waive any past default under the Indenture with
respect to such series, except a default in the payment of
principal, premium, or interest and certain covenants and
provisions of the Indenture that cannot be modified or be amended
without the consent of the Holder of each Outstanding Debt
Security of such series affected (Indenture, Section 813).
Without limiting the generality of the foregoing, if the Trust
Indenture Act is amended after the date of the Indenture in such
a way as to require changes to the Indenture or the incorporation
therein of additional provisions or so as to permit changes to,
or the elimination of, provisions which, at the date of the
Indenture or at any time thereafter, were required by the Trust
Indenture Act to be contained in the Indenture, the Indenture
will be deemed to have been amended so as to conform to such
amendment of the Trust Indenture Act or to effect such changes,
additions or elimination, and the Company and the Indenture
Trustee may, without the consent of any Holders, enter into one
or more supplemental indentures to evidence or effect such
amendment (Indenture, Section 1201).
Except as provided above, the consent of the Holders of a
majority in aggregate principal amount of the Debt Securities of
all series then Outstanding, considered as one class, is required
for the purpose of adding any provisions to, or changing in any
manner, or eliminating any of the provisions of, the Indenture or
modifying in any manner the rights of the Holders of such Debt
Securities under the Indenture pursuant to one or more
supplemental indentures; provided, however, that if less than all
of the series of Debt Securities Outstanding are directly
affected by a proposed supplemental indenture, then the consent
only of the Holders of a majority in aggregate principal amount
of Outstanding Debt Securities of all series so directly
affected, considered as one class, shall be required; and
provided, further, that if the Debt Securities of any series
shall have been issued in more than one Tranche and if the
proposed supplemental indenture shall directly affect the rights
of the Holders of Debt Securities of one or more, but less than
all, of such Tranches, then the consent only of the Holders of a
majority in aggregate principal amount of the Outstanding Debt
Securities of all Tranches so directly affected, considered as
one class, will be required; and provided further, that no such
amendment or modification may (a) change the Stated Maturity of
the principal of, or any installment of principal of or interest
on, any Debt Security, or reduce the principal amount thereof or
the rate of interest thereon (or the amount of any installment of
interest thereon) or change the method of calculating such rate
or reduce any premium payable upon the redemption thereof, or
change the coin or currency (or other property) in which any Debt
Security or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity of any Debt Security
(or, in the case of redemption, on or after the redemption date)
without, in any such case, the consent of the Holder of such Debt
Security, (b) reduce the percentage in principal amount of the
Outstanding Debt Security of any series, or any Tranche thereof,
the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with any provision of the
Indenture or any default thereunder and its consequences, or
reduce the requirements for quorum or voting, without, in any
such case, the consent of the Holder of each Outstanding Debt
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<PAGE>
Security of such series or Tranche, or (c) modify certain of the
provisions of the Indenture relating to supplemental indentures,
waivers of certain covenants and waivers of past defaults with
respect to the Debt Securities of any series or Tranche, without
the consent of the Holder of each Outstanding Debt Security
affected thereby. A supplemental indenture which changes or
eliminates any covenant or other provision of the Indenture which
has expressly been included solely for the benefit of one or more
particular series of Debt Securities or one or more Tranches
thereof, or modifies the rights of the Holders of Debt Securities
of such series with respect to such covenant or other provision,
will be deemed not to affect the rights under the Indenture of
the Holders of the Debt Securities of any other series or Tranche
(Indenture, Section 1201).
The Indenture provides that in determining whether the Holders
of the requisite principal amount of the Outstanding Debt
Securities have given any request, demand, authorization,
direction, notice, consent or waiver under the Indenture, or
whether a quorum is present at the meeting of the Holders of Debt
Securities, Debt Securities owned by the Company or any other
obligor upon the Debt Securities or any affiliate of the Company
or of such other obligor (unless the Company, such affiliate or
such obligor owns all Debt Securities Outstanding under the
Indenture, determined without regard to this provision) shall be
disregarded and deemed not to be Outstanding.
If the Company shall solicit from Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by Company Order, fix in advance
a record date for the determination of Holders entitled to give
such request, demand, authorization, direction, notice, consent,
waiver or other such Act, but the Company shall have no
obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for the purposes
of determining whether Holders of the requisite proportion of the
Outstanding Debt Securities have authorized or agreed or
consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose the
Outstanding Debt Securities shall be computed as of the record
date. Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall bind
every future Holder of the same Debt Security and the Holder of
every Debt Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Indenture
Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Debt Security
(Indenture, Section 104).
RESIGNATION OF INDENTURE TRUSTEE. The Indenture Trustee may
--------------------------------
resign at any time with respect to the Debt Securities of one or
more series by giving written notice thereof to the Company or
may be removed at any time with respect to the Debt Securities of
one or more series by Act of the Holders of a majority in
principal amount of the Outstanding Debt Securities of such
series delivered to the Indenture Trustee and the Company. No
resignation or removal of the Indenture Trustee and no
appointment of a successor trustee will become effective until
the acceptance of appointment by a successor trustee in
accordance with the requirements of the Indenture. So long as no
Event of Default or event which, after notice or lapse of time,
or both, would become an Event of Default has occurred and is
continuing and except with respect to an Indenture Trustee
appointed by Act of the Holders, if the Company has delivered to
the Indenture Trustee a resolution of its Board of Directors
appointing a successor trustee and such successor has accepted
such appointment in accordance with the terms of the Indenture,
the Indenture Trustee will be deemed to have resigned and the
successor will be deemed to have been appointed as trustee in
accordance with the Indenture (Indenture, Section 910).
NOTICES. Notices to Holders of Debt Securities will be given
-------
by mail to the addresses of such Holders as they may appear in
the security register therefor.
TITLE. The Company, the Indenture Trustee, and any agent of
-----
the Company or the Indenture Trustee, may treat the Person in
whose name a Debt Security is registered as the absolute owner
thereof (whether or not such Debt Security may be overdue) for
11
<PAGE>
the purpose of making payments and for all other purposes
irrespective of notice to the contrary.
GOVERNING LAW. The Indenture and the Debt Securities will be
-------------
governed by, and construed in accordance with, the laws of the
State of New York, without regard to conflict of law principles
thereunder, except to the extent that the law of any other
jurisdiction shall be mandatorily applicable.
REGARDING THE INDENTURE TRUSTEE. The Indenture Trustee under
-------------------------------
the Indenture is The Bank of New York. In addition to acting as
Indenture Trustee, The Bank of New York acts as Security
Registrar and Paying Agent under the Indenture, as Guarantee
Trustee under the Guarantee and as trustee under an Indenture
dated as of March 1, 1987 of the Company (the "1987 Indenture").
The Company also maintains various banking and trust
relationships with The Bank of New York.
SUPPORT AGREEMENT. The Company and FPL Group entered into a
-----------------
Support Agreement dated as of December 18, 1985 (the "Support
Agreement"). The Holders of the Offered Debt Securities are not
entitled to enforce the covenants and agreements contained in the
Support Agreement. The Support Agreement may be modified or
terminated at any time without the consent of such Holders.
DESCRIPTION OF THE GUARANTEE
GENERAL. Set forth below is a summary of information
-------
concerning the Guarantee that will be executed and delivered by
FPL Group for the benefit of the Indenture Trustee, which will
hold the Guarantee for the benefit of Holders of the Offered Debt
Securities. The Guarantee will be qualified as an indenture
under the Trust Indenture Act of 1939, as amended (Trust
Indenture Act). The Bank of New York will act as Guarantee
Trustee under the Guarantee for the purposes of compliance with
the Trust Indenture Act. The terms of the Guarantee will be
those set forth in the Guarantee and those made part of the
Guarantee by the Trust Indenture Act. The following description
of the terms of the Guarantee does not purport to be complete and
is qualified in its entirety by reference to the Guarantee and
the Trust Indenture Act. Whenever particular provisions or
defined terms in the Guarantee are referred to under this
DESCRIPTION OF THE GUARANTEE, such provisions or defined terms
are incorporated by reference herein.
In accordance with the terms of the Guarantee, FPL Group will
absolutely and unconditionally guarantee to each holder of an
Offered Debt Security issued by the Company and authenticated and
delivered by the Indenture Trustee the prompt and full payment,
when and as the same shall become due and payable, whether upon
acceleration, redemption or stated maturity, according to the
terms of the Offered Debt Securities and the Indenture, of the
principal, interest and premium, if any, due on such Offered Debt
Security but only in the case of a failure of the Company to pay
or provide for punctual payment of any such amounts on or before
the expiration of any applicable grace periods. In the
Guarantee, FPL Group has waived its right to require the
Guarantee Trustee, the Indenture Trustee or the Holders to
exhaust their remedies against the Company prior to bringing suit
against FPL Group.
The Guarantee will be an unsecured obligation of FPL Group,
and will rank pari passu with all other unsecured and
unsubordinated indebtedness of FPL Group.
The Guarantee will constitute a guarantee of payment when due
(i.e., the guaranteed party may institute a legal proceeding
directly against FPL Group to enforce its rights under the
Guarantee without first instituting a legal proceeding against
any other person or entity) and not of collection.
EFFECTIVE SUBORDINATION. FPL Group is a holding company that
-----------------------
derives substantially all of its income from its operating
subsidiaries. The Guarantee therefore will be effectively
subordinated to debt and preferred stock at FPL Group's
subsidiary level. FPL Group has also guaranteed all other debt
securities outstanding under the 1987 Indenture. The aggregate
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amount of debt securities outstanding under the 1987 Indenture as
of September 25, 1998 is $125,000,000. Neither the Indenture nor
the Guarantee places any limit on the amount of debt or preferred
stock issuable by the subsidiaries of FPL Group.
EVENTS OF DEFAULT. An event of default under the Guarantee
-----------------
will occur upon the failure of FPL Group to perform any of its
payment obligations under the Guarantee. The Holders of the
Offered Debt Securities covered by such Guarantee having a
majority of the aggregate principal amount of such Offered Debt
Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of the Guarantee or to direct the
exercise of any trust or power conferred upon the Guarantee
Trustee under the Guarantee.
The Guarantee Trustee must give to the Holders of Offered
Debt Securities covered by the Guarantee, in the manner and to
the extent provided in subsection (c) of Section 313 of the Trust
Indenture Act, notice of all defaults known to the Guarantee
Trustee, within ninety days after the occurrence thereof.
The Guarantee Trustee, the Indenture Trustee and the Holders
shall have all of the rights and remedies available under
applicable law and may proceed by appropriate court action to
enforce the terms of the Guarantee and to recover damages for the
breach of the Guarantee. 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 Company in respect of any obligations
under the Guarantee, 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 Company be first
asserted, prosecuted or exhausted.
FPL Group will be required to file annually with the Guarantee
Trustee an officer's certificate as to FPL Group's compliance
with all conditions under the Guarantee.
MODIFICATION. The Guarantor and the Guarantee Trustee may,
------------
without the consent of any Holder of Offered Debt Securities,
agree to any changes to the Guarantee which add additional debt
securities to the Guarantee or which do not materially adversely
affect the right of Holders. The Guarantee may be amended with
the prior approval of the Holders of a majority in aggregate
principal amount of all Offered Debt Securities covered by the
Guarantee; provided, that the right of any Holder to receive
payment under the Guarantee on the due date of the Offered Debt
Securities held by such Holder, or to institute suit for the
enforcement of such payment on or after such due date, may not
be impaired or affected without the consent of such Holder.
REGARDING THE GUARANTEE TRUSTEE. The Guarantee Trustee, prior
-------------------------------
to the occurrence of a default by FPL Group in performance of the
Guarantee, will undertake to perform only such duties as are
specifically set forth in the Guarantee and, after default with
respect to the Guarantee, must exercise the same degree of care
as a prudent individual would exercise in the conduct of his or
her own affairs.
TERMINATION OF THE GUARANTEE. The Guarantee will terminate
----------------------------
and be of no further force and effect upon full payment of all
Debt Securities covered thereby.
GOVERNING LAW. The Guarantee will be governed by and
-------------
construed in accordance with 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.
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PLAN OF DISTRIBUTION
The Company may sell the Offered Debt Securities in any of
three ways: (i) through underwriters or dealers, (ii) directly to
a limited number of purchasers or to a single purchaser, or (iii)
through agents. The Prospectus Supplement with respect to the
Offered Debt Securities sets forth the terms of the offering of
the Offered Debt Securities, including the name or names of
underwriters, the respective amounts underwritten, the purchase
price of such Offered Debt Securities and the proceeds to the
Company from such sale, any underwriting discounts and other
items constituting underwriters' compensation, any initial public
offering price and any discounts or concessions allowed or
reallowed or paid to dealers. Any initial public offering price
and any discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time.
If underwriters are used in the sale, the Offered Debt
Securities will be acquired by the underwriters for their own
account and may be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time
of the sale. The Offered Debt Securities may be offered to the
public either through underwriting syndicates represented by one
or more managing underwriters as may be designated by the
Company, or directly by one or more of such firms. The
underwriter or underwriters with respect to a particular
underwritten offering of Offered Debt Securities are named in the
Prospectus Supplement relating to such offering and, if an
underwriting syndicate is used, the managing underwriter or
underwriters are set forth on the cover page of such Prospectus
Supplement. Unless otherwise set forth in the Prospectus
Supplement, the obligations of the underwriters to purchase the
Offered Debt Securities will be subject to certain conditions
precedent, and the underwriters will be obligated to purchase all
such Offered Debt Securities if any are purchased.
Offered Debt Securities may be sold directly by the Company or
through agents designated by the Company from time to time. The
Prospectus Supplement sets forth the name of any agent involved
in the offer or sale of the Offered Debt Securities in respect of
which the Prospectus Supplement is delivered as well as any
commissions payable by the Company to such agent. Unless
otherwise indicated in the Prospectus Supplement, any such agent
is acting on a best efforts basis for the period of its
appointment.
If so indicated in the Prospectus Supplement, the Company will
authorize agents, underwriters or dealers to solicit offers by
certain specified institutions to purchase Offered Debt
Securities from the Company at the public offering price set
forth in the Prospectus Supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date
in the future. Such contracts will be subject to those conditions
set forth in the Prospectus Supplement, and the Prospectus
Supplement will set forth the commission payable for solicitation
of such contracts.
Agents and underwriters may be entitled under agreements
entered into with the Company to indemnification by the Company
against certain civil liabilities, including liabilities under
the Securities Act.
EXPERTS
The audited consolidated financial statements of FPL Group and
subsidiaries appearing in FPL Group's Annual Report on Form 10-K
incorporated herein by reference have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their report
included in said Annual Report on Form 10-K, which report is
incorporated herein by reference, and have been so incorporated
in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
Legal conclusions and opinions specifically attributed to
counsel herein and in the documents incorporated herein by
reference have been reviewed by Steel Hector & Davis LLP, West
Palm Beach, Florida, counsel to FPL Group and to the Company, and
are set forth on the authority of said firm as experts.
14
<PAGE>
LEGAL OPINIONS
The legality of the Offered Debt Securities and the Guarantee
will be passed upon for the Company and FPL Group by Steel Hector
& Davis LLP, West Palm Beach, Florida and Thelen Reid & Priest
LLP, New York, New York, co-counsel to FPL Group and the Company,
and for any underwriter, dealer or agent by Winthrop, Stimson,
Putnam & Roberts, New York, New York. Thelen Reid & Priest LLP
and Winthrop, Stimson, Putnam & Roberts may rely as to all
matters of Florida law upon the opinion of Steel Hector & Davis
LLP. Steel Hector & Davis LLP may rely as to all matters of New
York law on an opinion of Thelen Reid & Priest LLP.
------------------------------
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO
GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN
THOSE CONTAINED IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT
IN CONNECTION WITH AN OFFER MADE BY THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY FPL GROUP, THE COMPANY OR ANY OTHER PERSON, UNDERWRITER,
DEALER OR AGENT. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE
IN THE AFFAIRS OF FPL GROUP OR THE COMPANY SINCE THE DATE HEREOF
OR THEREOF. THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT DO NOT
CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY JURISDICTION
IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH
THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO
DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
15
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of
the securities being registered, other than underwriting and/or
agents compensation, are:
Filing Fee for Registration Statement . . . . . . . . $ 88,500
Legal and Accounting Fees . . . . . . . . . . . . . . $ 125,000*
Printing (S-3, Prospectus, Prospectus Supplement, etc.)$ 15,000*
Fees of the Trustees . . . . . . . . . . . . . . . . $ 10,000*
Rating Agencies' Fees . . . . . . . . . . . . . . . . $ 75,000*
Miscellaneous . . . . . . . . . . . . . . . . . . . . $ 13,500*
Total . . . . . . . . . . . . . . . . . . . . $ 327,000*
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 607.0850 of the Florida Statutes generally permits
each registrant to indemnify its directors, officers, employees
or other agents who are subject to any third-party actions
because of their service to the registrant if such persons acted
in good faith and in a manner they reasonably believed to be in,
or not opposed to, the best interests of the registrant. If the
proceeding is a criminal one, such person must also have had no
reasonable cause to believe his conduct was unlawful. In
addition, each registrant may indemnify its directors, officers,
employees or other agents who are subject to derivative actions
against expenses and amounts paid in settlement which do not
exceed, in the judgment of the board of directors, the estimated
expense of litigating the proceeding to conclusion, actually and
reasonably incurred in connection with the defense or settlement
of such proceeding, if such person acted in good faith and in a
manner such person reasonably believed to be in, or not opposed
to, the best interests of the registrant. To the extent that a
director, officer, employee or other agent is successful on the
merits or otherwise in defense of a third-party or derivative
action, such person will be indemnified against expenses actually
and reasonably incurred in connection therewith. This Section
also permits a corporation further to indemnify such persons by
other means unless a judgment or other final adjudication
establishes that such person's actions or omissions which were
material to the cause of action constitute (1) a crime (unless
such person had reasonable cause to believe his conduct was
lawful or had no reasonable cause to believe it unlawful), (2) a
transaction from which he derived an improper personal benefit,
(3) a transaction in violation of Florida Statutes Section
607.0834 (unlawful distributions to shareholders), or (4) willful
misconduct or a conscious disregard for the best interests of the
corporation in a proceeding by or in the right of the corporation
to procure a judgment in its favor or in a proceeding by or in
the right of a shareholder.
Furthermore, Florida Statutes Section 607.0831 provides, in
general, that no director shall be personally liable for monetary
damages to a registrant or any other person for any statement,
vote, decision, or failure to act, regarding corporate management
or policy, unless: (a) the director breached or failed to perform
his duties as a director; and (b) the director's breach of, or
failure to perform, those duties constitutes (i) a violation of
criminal law, unless the director had reasonable cause to believe
his conduct was lawful or had no reasonable cause to believe his
conduct was unlawful, (ii) a transaction from which the director
derived an improper personal benefit, either directly or
indirectly, (iii) a circumstance under which the liability
provisions of Florida Statutes Section 607.0834 are applicable,
(iv) in a proceeding by or in the right of a registrant to
procure a judgment in its favor or by or in the right of a
shareholder, conscious disregard for the best interest of a
registrant, or willful misconduct, or (v) in a proceeding by or
in the right of someone other than a registrant or a shareholder,
recklessness or an act or omission which was committed in bad
faith or with malicious purpose or in a manner exhibiting wanton
II-1
<PAGE>
and willful disregard of human rights, safety, or property. The
term "recklessness," as used above, means the action, or omission
to act, in conscious disregard of a risk: (a) known, or so
obvious that it should have been known, to the directors; and (b)
known to the director, or so obvious that it should have been
known, to be so great as to make it highly probable that harm
would follow from such action or omission.
Each registrant's Bylaws provide generally that such
registrant shall, to the fullest extent permitted by law,
indemnify all directors and officers of such registrant,
directors, officers, or other employees serving as a fiduciary of
an employee benefit plan of such registrant, as well as any
employees or agents of such registrant or other persons serving
at the request of such registrant in any capacity with any entity
or enterprise other than such registrant to whom such registrant
has agreed to grant indemnification (each, an "Indemnified
Person") to the extent that any such person is made a party or
threatened to be made a party or called as a witness or is
otherwise involved in any action, suit, or proceeding in
connection with his status as an Indemnified Person. Such
indemnification covers all expenses incurred by any Indemnified
Person (including attorneys' fees) and all liabilities and losses
(including judgments, fines and amounts to be paid in settlement)
incurred thereby in connection with any such action, suit or
proceeding.
In addition, each registrant carries insurance permitted by
the laws of Florida on behalf of directors, officers, employees
or agents which may cover, among other things, liabilities under
the Securities Act.
ITEM 16. EXHIBITS.
1 Form of Underwriting Agreement.
*3(a) Restated Articles of Incorporation of FPL Group dated
December 31, 1984, as amended through December 17, 1990
(filed as Exhibit 4(a) to Post-Effective Amendment No. 5
to Form S-8, File No. 33-18669).
*3(b) Amendment to FPL Group's Restated Articles of
Incorporation dated June 27, 1996 (filed as Exhibit 3 to
Form 10-Q for the quarter ended June, 30, 1996, File No.
1-8841).
*3(c) By-Laws of FPL Group dated November 15, 1993 (filed as
Exhibit 3(ii) to Form 10-K for the year ended December
31, 1993, File No. 1-8841).
*3(d) Articles of Incorporation of the Company (filed as
Exhibit 3.1 to Registration Statement No. 33-6215).
*3(e) By-Laws of the Company dated January 4, 1988 (filed as
Exhibit 4(b) to Registration Statement No. 33-69786).
4(a) Form of Indenture relating to Debt Securities.
4(b) Form of Officer's Certificate relating to the Offered
Debt Securities, including form of Offered Debt
Securities.
4(c) Form of Guarantee Agreement.
5(a) Opinion and Consent of Steel Hector & Davis LLP, counsel
to the Company.
5(b) Opinion and Consent of Thelen Reid & Priest LLP, counsel
to the Company.
*12 Consolidated ratio of earnings to fixed charges (filed as
Exhibit 12 to Report on Form 10-Q of FPL Group, Inc. for the
quarter ended June 30, 1998, File No. 1-8841).
23(a) Independent Auditors' Consent of Deloitte & Touche LLP.
II-2
<PAGE>
23(b) Consent of Thelen Reid & Priest LLP (included in opinion,
attached hereto as Exhibit 5(b)).
23(c) Consent of Steel Hector & Davis LLP (included in opinion,
attached hereto as Exhibit 5(a)).
24 Powers of Attorney (included on the signature pages of
this registration statement).
25(a) Statement of Eligibility on Form T-1 of The Bank of New
York, as Guarantee Trustee.
25(b) Statement of Eligibility on Form T-1 of The Bank of New
York, as Indenture Trustee.
*Incorporated herein by reference as indicated.
ITEM 17. UNDERTAKINGS.
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
registration statement (i) to include any prospectus
required by Section 10(a)(3) of the Securities Act; (ii)
to reflect in the Prospectus any facts or events arising
after the effective date of the registration statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement; or (iii) to include any material
information with respect to the plan of distribution not
previously disclosed in the registration statement or
any material change to such information in the
registration statement, provided, however, that the
registrants need not file a post-effective amendment to
include the information required to be included by
subsection (i) or (ii) if such information is contained
in periodic reports filed by the registrants pursuant to
Section 13 or Section 15(d) of the Exchange Act, which
are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement
relating to the securities offered therein, and the
offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of FPL Group's Annual Report
pursuant to Section 13(a) of the Exchange Act that is
incorporated by reference in the registration statement
shall be deemed to be a new registration statement
relating to the securities offered herein, and the
offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrants pursuant to the provisions
described under Item 15 above, or otherwise, the registrants have
been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by either registrant of expenses incurred or paid by a director,
officer or controlling person of such registrant in the
successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection
with the securities being registered, the registrant against
which the claim is asserted will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
POWER OF ATTORNEY
Each director and/or officer of the registrant whose signature
appears below hereby appoints the agents for service named in
this registration statement, and each of them severally, as his
attorney-in-fact to sign in his name and behalf, in any and all
capacities stated below and to file with the Securities and
Exchange Commission, any and all amendments, including post-
effective amendments, to this registration statement, and the
registrant hereby also appoints each such agent for service as
its attorney-in-fact with like authority to sign and file any
such amendments in its name and behalf.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
FPL Group, Inc. certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of Juno Beach, and State of Florida, on the 28th day of
September, 1998.
FPL GROUP, INC.
By:/s/ James L. Broadhead
----------------------
James L. Broadhead, Chairman of the Board,
President and Chief Executive Officer and Director
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ James L. Broadhead Principal September 28,
------------------------------ Executive 1998
James L. Broadhead Officer and
Chairman of the Board, Director
President, and
Chief Executive Officer
/s/ K. Michael Davis Principal September 28,
------------------------------ Financial and 1998
K. Michael Davis Accounting
Controller and Chief Officer
Accounting Officer
/s/ H. Jesse Arnelle Director September 28,
------------------------------ 1998
H. Jesse Arnelle
/s/ Sherry S. Barrat Director September 28,
------------------------------ 1998
Sherry S. Barrat
II-4
<PAGE>
Signature Title Date
--------- ----- ----
/s/ Robert M. Beall, II Director September 28,
------------------------------ 1998
Robert M. Beall, II
/s/ J. Hyatt Brown Director September 28,
------------------------------ 1998
J. Hyatt Brown
------------------------------ Director
Armando M. Codina
/s/ Marshall M. Criser Director September 28,
------------------------------ 1998
Marshall M. Criser
/s/ B.F. Dolan Director September 28,
------------------------------ 1998
B. F. Dolan
/s/ Willard D. Dover Director September 28,
------------------------------ 1998
Willard D. Dover
/s/ Alexander W. Dreyfoos, Jr. Director September 28,
------------------------------ 1998
Alexander W. Dreyfoos, Jr.
/s/ Paul J. Evanson Director September 28,
------------------------------ 1998
Paul J. Evanson
/s/ Drew Lewis Director September 28,
------------------------------ 1998
Drew Lewis
/s/ Frederic V. Malek Director September 28,
------------------------------ 1998
Frederic V. Malek
/s/ Paul R. Tregurtha Director September 28,
------------------------------ 1998
Paul R. Tregurtha
II-5
<PAGE>
POWER OF ATTORNEY
Each director and/or officer of the registrant whose signature
appears below hereby appoints the agents for service named in
this registration statement, and each of them severally, as his
attorney-in-fact to sign in his name and behalf, in any and all
capacities stated below and to file with the Securities and
Exchange Commission, any and all amendments, including post-
effective amendments, to this registration statement, and the
registrant hereby also appoints each such agent for service as
its attorney-in-fact with like authority to sign and file any
such amendments in its name and behalf.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
FPL Group Capital Inc certifies that it has reasonable grounds to
believe that it meets all requirements for filing on Form S-3 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Juno Beach, State of Florida, on the 28th day of September ,
1998.
FPL GROUP CAPITAL INC
By:/s/ James L. Broadhead
----------------------
James L. Broadhead
President, Chief Executive
Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ James L. Broadhead Principal Executive September
--------------------------- Officer and Director 28, 1998
James L. Broadhead
President and Chief
Executive Officer
/s/ K. Michael Davis Principal Financial September
-------------------------- and Accounting 28, 1998
K. Michael Davis Officer
Controller and Chief
Accounting Officer
/s/ Dilek Samil Director September
-------------------------- 28, 1998
Dilek Samil
/s/ Michael W. Yackira Director September
-------------------------- 28, 1998
Michael W. Yackira
II-6
<PAGE>
EXHIBIT INDEX
1 Form of Underwriting Agreement.
4(a) Form of Indenture relating to Debt Securities.
4(b) Form of Officer's Certificate relating to the Offered
Debt Securities, including form of Offered Debt
Securities.
4(c) Form of Guarantee Agreement.
5(a) Opinion and Consent of Steel Hector & Davis LLP, counsel
to the Company.
5(b) Opinion and Consent of Thelen Reid & Priest LLP, counsel
to the Company.
23(a) Independent Auditors' Consent of Deloitte & Touche LLP.
23(b) Consent of Thelen Reid & Priest LLP (included in opinion,
attached hereto as Exhibit 5(b)).
23(c) Consent of Steel Hector & Davis LLP (included in opinion,
attached hereto as Exhibit 5(a)).
24 Powers of Attorney (included on the signature pages of
this registration statement).
25(a) Statement of Eligibility on Form T-1 of The Bank of New
York, as Guarantee Trustee.
25(b) Statement of Eligibility on Form T-1 of The Bank of New
York, as Indenture Trustee.
<S> <C>
</TABLE>
EXHIBIT 1
FPL GROUP CAPITAL INC
DEBENTURES
ABSOLUTELY AND UNCONDITIONALLY GUARANTEED BY
FPL GROUP, INC.
------------------------------
UNDERWRITING AGREEMENT
-------------------------------
, 1998
----------
To the Representatives named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
1. Introductory. FPL Group Capital Inc, a Florida
-------------
corporation ("FPL Group Capital") and a wholly owned subsidiary
of FPL Group, Inc., a Florida corporation ("FPL Group" or the
"Guarantor"), proposes to issue and sell its debt securities of
the series designation, with the terms and in the principal
amount specified in Schedule I hereto (the "Debentures"). The
Debentures will be absolutely and unconditionally guaranteed by
FPL Group pursuant to and in accordance with the terms of the
Guarantee (as hereinafter defined). Each of FPL Group Capital
and the Guarantor hereby confirms its agreement with the several
Underwriters (as defined below) as set forth herein.
The term "Underwriters" as used herein shall be deemed to
mean the firm or corporation or the several firms or corporations
named in Schedule II hereto and any underwriter substituted as
provided in Section 6 hereof and the term "Underwriter" shall be
deemed to mean one of such Underwriters. If the firm or firms
listed in Schedule I hereto (the "Representatives") are the same
as the firm or firms listed in Schedule II hereto, then the terms
<PAGE>
"Underwriters" and "Representatives", as used herein, shall each
be deemed to refer to such firm or firms. The Representatives
represent that they have been authorized by each Underwriter to
enter into this agreement on behalf of such Underwriter and to
act for it in the manner herein provided. All obligations of the
Underwriters hereunder are several and not joint. If more than
one firm is named in Schedule I hereto, any action under or in
respect of this agreement may be taken by such firms jointly as
the Representatives or by one of the firms acting on behalf of
the Representatives and such action will be binding upon all the
Underwriters.
2. Description of Debentures and Guarantee. The
---------------------------------------------
Debentures will be a series of debentures issued by FPL Group
Capital under an Indenture, dated as of , to The Bank of New
--------
York, as Trustee, in substantially the form heretofore delivered to
the Representatives (together with any amendments or supplements
thereto, the "Indenture"). The Debentures will be absolutely and
unconditionally guaranteed by FPL Group pursuant to, and in
accordance with, the terms of a Guarantee Agreement, dated
, between FPL Group, as Guarantor, and The Bank of
----------------
New York, as Guarantee Trustee, in substantially the form
heretofore delivered to the Representatives (the "Guarantee").
3. Representations and Warranties of FPL Group Capital.
------------------------------------------------------
FPL Group Capital represents and warrants to the several Underwriters
that:
(a) FPL Group Capital has filed with the Securities
and Exchange Commission (the "Commission") a registration
statement on Form S-3, including a prospectus ("Registration
Statement No. 33-47813"), for the registration of
$200,000,000 aggregate principal amount of its debt
securities under the Securities Act of 1933, as amended (the
"Securities Act"), which registration statement has been
declared effective by the Commission. All but $25,000,000
aggregate principal amount of debt securities registered
with the Commission under the Securities Act pursuant to
Registration Statement No. 33-47813 have been previously
issued. FPL Group Capital has also filed with the
Commission a registration statement on Form S-3, including a
prospectus ("Registration Statement No. 33-69786"), for the
registration of $300,000,000 aggregate principal amount of
its debt securities under the Securities Act, which
registration statement has been declared effective by the
Commission. None of the securities registered with the
Commission under the Securities Act pursuant to Registration
Statement No. 33-69786 has been previously issued. FPL
Group Capital also filed with the Commission a registration
statement on Form S-3, including a prospectus, for the
registration of an additional $300,000,000 aggregate
principal amount of its debt securities (together with the
debt securities registered with the Commission under the
Securities Act pursuant to Registration Statement No.
33-47813 and Registration Statement No. 33-69786 which
remain unissued, the "Debt Securities") under the Securities
Act which registration statement has been declared effective
by the Commission. References herein to the term
"Registration Statement" as of any given date shall mean
Registration Statement No. 333- , as amended
-------------
or supplemented to such date,
including, as of such date, all documents incorporated by
reference therein pursuant to Item 12 of Form S-3
("Incorporated Documents"). References herein to the term
"Prospectus" as of any given date shall mean the combined
<PAGE>
prospectus forming a part of the Registration Statement, as
supplemented by a prospectus supplement relating to the
Debentures proposed to be filed pursuant to Rule 424 of the
general rules and regulations of the Securities Act ("Rule
424"), and as further amended or supplemented as of such
date (other than amendments or supplements relating to (i)
Debt Securities other than the Debentures or, (ii) when
referring to the Prospectus relating to a particular
offering of the Debentures, Debentures other than the
Debentures being offered on such date), including all
Incorporated Documents. References herein to the "Effective
Date" of the Registration Statement shall be deemed to refer
to the later of the time and date that the Registration
Statement was declared effective and the time and date of
the filing thereafter of FPL Group's most recent Annual
Report on Form 10-K, if such filing is made prior to the
Closing Date (as hereinafter defined). References herein to
the "Effective Date" of Registration Statement No. 33-47813
or Registration Statement 33-69786 shall be deemed to refer
to the time and date of the filing of the FPL Group
Capital's most recent Annual Report on Form 10-K. Prior to
the termination of the offering of the Debentures and
Guarantee, FPL Group Capital will not file any amendment to
the Registration Statement, Registration Statement No. 33-
47813, Registration Statement 33-69786 or any amendment or
supplement to the Prospectus without prior notice to the
Representatives, and to Winthrop, Stimson, Putnam & Roberts,
who are acting as Counsel for the several Underwriters
("Counsel for the Underwriters"), or any such amendment or
supplement to which the Representatives shall reasonably
object in writing, or which shall be unsatisfactory to
Counsel for the Underwriters.
(b) The Registration Statement, Registration Statement
No. 33-47813 and Registration Statement 33-69786, each at
its Effective Date, fully complied, and the Prospectus, both
on the date it is filed with the Commission pursuant to Rule
424 (such date, the "424 Date") and at the Closing Date, and
the Registration Statement and the Indenture at the Closing
Date, will fully comply, in all material respects with the
applicable provisions of the Securities Act and the Trust
Indenture Act of 1939, as amended (the "1939 Act"),
respectively, and, in each case, the applicable
instructions, rules and regulations of the Commission
thereunder; the Registration Statement, Registration
Statement No. 33-47813 and Registration Statement 33-69786,
each at its Effective Date, did not, and at the Closing
Date, the Registration Statement will not, contain an untrue
statement of a material fact, or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus, on the
424 Date and at the Closing Date, will not include an untrue
statement of a material fact or omit to state a material
fact necessary in order to make the statements contained
therein, in the light of the circumstances under which they
were made, not misleading; provided, that the foregoing
representations and warranties in this subsection (b) shall
not apply to statements or omissions made in reliance upon
and in conformity with information furnished in writing to
FPL Group Capital or FPL Group by or on behalf of any
Underwriter through the Representatives for use in
connection with the preparation of the Registration
Statement, Registration Statement No. 33-47813, Registration
Statement 33-69786 or the Prospectus, or to any statements in
-3-
<PAGE>
or omissions from the Statements of Eligibility on Form T-1,
or amendments thereto, of the respective Trustees under the
Indenture and the Guarantee or to any statements or
omissions made in the Prospectus relating to the DTC Book-
Entry-Only System that are based solely on information
contained in published reports of DTC.
(c) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof on the
part of FPL Group Capital to be fulfilled have been duly
authorized by all necessary corporate action of FPL Group
Capital in accordance with the provisions of its Articles of
Incorporation (the "FPL Group Capital Charter"), by-laws and
applicable law, and the Debentures when issued and delivered
as provided herein will constitute valid and binding
obligations of FPL Group Capital enforceable in accordance
with their terms, except as limited by bankruptcy,
insolvency or other laws affecting creditors' rights
generally and limitations on the availability of equitable
remedies.
(d) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof and the
compliance by FPL Group Capital with all the terms and
provisions of the Indenture will not result in a breach of
any of the terms or provisions of, or constitute a default
under, the FPL Group Capital Charter or by-laws, or any
indenture, mortgage, deed of trust or other agreement or
instrument to which FPL Group Capital is now a party, or
violate any law or any order, rule, decree or regulation
applicable to FPL Group Capital of any Federal or state
court, regulatory board or body or administrative agency
having jurisdiction over FPL Group Capital or any of its
property, except where such breach, default or violation
would not have a material adverse effect on the business,
properties or financial condition of FPL Group Capital and
its subsidiaries taken as a whole.
(e) FPL Group Capital and its direct significant
subsidiaries (as defined in Regulation S-X have good and
marketable title to all of the capital stock of their respective
significant subsidiaries (as defined in Regulation S-X) free
and clear of all liens and encumbrances, except such as do not
materially affect the value thereof.
(f) Each of FPL Group Capital's direct and indirect
significant subsidiaries (as defined in Regulation S-X) has
been duly incorporated, is validly existing and is in good
standing under the laws of its respective jurisdiction of
incorporation, and is duly qualified to do business and is
in good standing as a foreign corporation in each
jurisdiction in which its respective ownership of properties
or the conduct of its respective businesses requires such
qualification, except where the failure so to qualify would
not have a material adverse effect on the business,
properties or financial condition of FPL Group Capital and
its subsidiaries taken as a whole, and has the corporate
power and authority necessary to own or hold its respective
properties and to conduct the businesses in which it is
engaged.
-4-
<PAGE>
4. Representations and Warranties of FPL Group. FPL Group
-------------------------------------------
represents and warrants to the several Underwriters that:
(a) FPL Group has filed with the Commission the
Registration Statement, for the registration of the
Guarantee with respect to the Debt Securities under the
Securities Act, which registration statement has been
declared effective by the Commission. Prior to the
termination of the offering of the Debentures and Guarantee,
FPL Group will not file any amendment to the Registration
Statement or any amendment or supplement to the Prospectus
without prior notice to the Representatives, and to Counsel
for the Underwriters, or any such amendment or supplement to
which the Representatives shall reasonably object in
writing, or which shall be unsatisfactory to Counsel for the
Underwriters.
(b) The Registration Statement at its Effective Date
fully complied, and the Prospectus, both on the 424 Date and
at the Closing Date, and the Registration Statement and the
Guarantee at the Closing Date, will fully comply, in all
material respects with the applicable provisions of the
Securities Act and the 1939 Act, respectively and, in each
case, the applicable instructions, rules and regulations of
the Commission thereunder; at its Effective Date, the
Registration Statement did not, and at the Closing Date, the
Registration Statement will not, contain an untrue statement
of a material fact, or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus, on the
424 Date and at the Closing Date, will not include an untrue
statement of a material fact or omit to state a material
fact necessary in order to make the statements contained
therein, in the light of the circumstances under which they
were made, not misleading; and the Incorporated Documents,
when filed with the Commission, fully complied or will fully
comply in all material respects with the applicable
provisions of the Exchange Act and the applicable
instructions, rules and regulations of the Commission
thereunder; provided, that the foregoing representations and
warranties in this subsection (b) shall not apply to
statements or omissions made in reliance upon and in
conformity with information furnished in writing to FPL
Group Capital or FPL Group by or on behalf of any
Underwriter through the Representatives for use in
connection with the preparation of the Registration
Statement or the Prospectus, or to any statements in or
omissions from the Statements of Eligibility on Form T-1, or
amendments thereto, of the respective Trustees under the
Indenture and the Guarantee, or to any statements or
omissions made in the Prospectus relating to the DTC Book-
Entry-Only System that are based solely on published reports
of DTC.
(c) The financial statements included as part of or
incorporated by reference in the Registration Statement
present fairly the consolidated financial condition and
results of operations of FPL Group and its subsidiaries
taken as a whole, at the respective dates and for the
respective periods to which they apply; such financial
statements have been prepared in each case in accordance
with generally accepted accounting principles consistently
applied throughout the periods involved except as otherwise
indicated in the Registration Statement; and Deloitte &
Touche LLP, who have
-5-
<PAGE>
audited the audited financial statements of FPL Group, are
independent public accountants as required by the Securities
Act and the Exchange Act and the rules and regulations of
the Commission thereunder.
(d) Except as reflected in or contemplated by the
Registration Statement and the Prospectus, since the
respective most recent dates as of which information is
given in the Registration Statement and Prospectus, there
has not been any material adverse change in the business,
properties or financial condition of FPL Group and its
subsidiaries taken as a whole, nor has any transaction been
entered into by FPL Group or any of its subsidiaries that is
material to FPL Group and its subsidiaries taken as a whole,
other than changes and transactions contemplated by the
Registration Statement and Prospectus, and transactions in
the ordinary course of business. FPL Group and its
subsidiaries have no contingent obligation material to FPL
Group and its subsidiaries taken as a whole, which is not
disclosed in the Registration Statement and Prospectus.
(e) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof on the
part of FPL Group to be fulfilled have been duly authorized
by all necessary corporate action of FPL Group in
accordance with the provisions of its Articles of
Incorporation (the "FPL Group Charter"), by-laws and
applicable law, and the Guarantee when issued and delivered
as provided herein will constitute a valid and binding
obligation of FPL Group enforceable in accordance with its
terms, except as limited by bankruptcy, insolvency or other
laws affecting creditors rights generally and limitations
on the availability of equitable remedies.
(f) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof and the
compliance by FPL Group with all the terms and provisions of
the Guarantee will not result in a breach of any of the
terms or provisions of, or constitute a default under, the
FPL Group Charter or by-laws, or any indenture, mortgage,
deed of trust or other agreement or instrument to which FPL
Group or any of its subsidiaries is now a party, or violate
any law or any order, rule decree or regulation applicable
to FPL Group or any of its subsidiaries of any Federal or
state court, regulatory board or body or administrative
agency having jurisdiction over FPL Group or its
subsidiaries or any of their respective property, except
where such breach, default or violation would not have a
material adverse effect on the business, properties or
financial condition of FPL Group and its subsidiaries taken
as a whole.
(g) FPL Group has good and marketable title to all of
the common stock of its subsidiaries free and clear of all
liens and encumbrances, except such as do not materially
affect the value thereof.
(h) The Guarantee has been duly authorized, executed
and delivered by FPL Group and constitutes a valid and
binding agreement of FPL Group enforceable in accordance
with its terms, except as limited by bankruptcy, insolvency
and other laws affecting creditors rights generally and
equitable limitations on the enforceability of specific
remedies.
-6-
<PAGE>
Neither the execution and delivery of the Guarantee nor the
performance by FPL Group of any of its obligations
thereunder requires any consent, approval, authorization,
registration or qualification of or by any governmental
agency or body.
(i) Each of FPL Group s direct and indirect
significant subsidiaries (as defined in Regulation S-X) has
been duly incorporated, is validly existing and is in good
standing under the laws of its respective jurisdiction of
incorporation, and is duly qualified to do business and is
in good standing as a foreign corporation in each
jurisdiction in which its respective ownership of properties
or the conduct of its respective businesses requires such
qualification, except where the failure so to qualify would
not have a material adverse effect on the business,
properties or financial condition of FPL Group and its
subsidiaries taken as a whole, and has the corporate power
and authority necessary to own or hold its respective
properties and to conduct the businesses in which it is
engaged.
5. Purchase and Sale. On the basis of the representations
-----------------
and warranties herein contained, and subject to the terms and
conditions in this agreement set forth, FPL Group Capital agrees
to sell to the respective Underwriters named in Schedule II
hereto, severally and not jointly, and the respective
Underwriters agree, severally and not jointly, to purchase from
FPL Group Capital, the respective principal amounts of Debentures
set forth opposite their respective names in Schedule II hereto
at the purchase price set forth in Schedule I hereto.
6. Public Offering. The Underwriters propose to make a bona
---------------
fide public offering of the Debentures and Guarantee as set forth
in the Prospectus, such public offering to be made as soon after
the execution of this agreement as practicable, subject, however,
to the terms and conditions of this agreement.
7. Time and Place of Closing, Default of Underwriter.
-------------------------------------------------
Delivery of the Debentures and Guarantee and payment therefor by
certified or official bank check or checks, payable to the order
of FPL Group Capital in New York Clearing House or similar next
day funds, or by wire transfer in Federal funds, shall be made at
the time, date and place set forth in Schedule I, or at such
other time, date or place as shall be agreed upon in writing by
FPL Group Capital and the Representatives. The hour and date of
such delivery and payment are herein called the "Closing Date".
The Debentures shall be delivered to The Depository Trust
Company ("DTC") or to The Bank of New York, as custodian for DTC,
in fully registered global form registered in the name of DTC, as
depository, or its nominee, for the respective accounts specified
by the Representatives not later than the close of business on
the business day preceding the Closing Date. For the purpose of
expediting the checking of the Debentures by the Representatives
on behalf of the Underwriters, FPL Group Capital agrees to make
such Debentures available to the Representatives for such purpose
at the office of Thelen Reid & Priest LLP, 40 West 57th Street,
New York, New York 10019, not later than 2:00 P.M., New York City
time, on the business day preceding the Closing Date, or at such
other time
-7-
<PAGE>
and place as may be agreed upon by FPL Group Capital and the
Representatives.
If any Underwriter shall fail to purchase and pay for the
principal amount of the Debentures which such Underwriter has
agreed to purchase and pay for hereunder (otherwise than by
reason of any failure on the part of FPL Group Capital or FPL
Group to comply with any of the provisions contained herein), the
non-defaulting Underwriters shall be obligated to take up and pay
for (in addition to the respective principal amount of the
Debentures set forth opposite their respective names in Schedule
II hereto) the principal amount of the Debentures which such
defaulting Underwriter or Underwriters failed to take up and pay
for, up to a principal amount thereof equal to, in the case of
each such remaining Underwriter, ten percent (10%) of the
principal amount of the Debentures set forth opposite the name of
such remaining Underwriter in said Schedule II, and such
remaining Underwriters shall have the right, within 24 hours of
receipt of such notice, either to take up and pay for (in such
proportion as may be agreed upon among them), or to substitute
another Underwriter or Underwriters, satisfactory to FPL Group
Capital, to take up and pay for, the remaining principal amount
of the Debentures which the defaulting Underwriter or
Underwriters agreed but failed to purchase. If any unpurchased
Debentures still remain, then FPL Group Capital shall be entitled
to a further period of 24 hours within which to procure another
party or other parties, members of the National Association of
Securities Dealers, Inc. (or, if not members of such Association,
who are not eligible for membership in said Association and who
agree (i) to make no sales within the United States, its
territories or its possessions or to persons who are citizens
thereof or residents therein and (ii) in making sales to comply
with said Association's Conduct Rules) and satisfactory to the
Representatives to purchase such Debentures on the terms herein
set forth. In the event that, within the respective prescribed
periods, the non-defaulting Underwriters notify FPL Group Capital
that they have arranged for the purchase of such Debentures, or
FPL Group Capital notifies the non-defaulting Underwriters that
it has arranged for the purchase of such Debentures, the
non-defaulting Underwriters or FPL Group Capital shall have the
right to postpone the Closing Date for a period of not more than
three full business days beyond the expiration of the respective
prescribed periods in order to effect whatever changes may thus
be made necessary in the Registration Statement, Registration
Statement No. 33-47813, Registration Statement 33-69786 or the
Prospectus or in any other documents or arrangements. In the
event that neither the non-defaulting Underwriters nor FPL Group
Capital has arranged for the purchase of such Debentures by
another party or parties as above provided, then this agreement
shall terminate without any liability on the part of FPL Group
Capital, FPL Group or any Underwriter (other than an Underwriter
which shall have failed or refused, otherwise than for some
reason sufficient to justify, in accordance with the terms
hereof, the cancellation or termination of its obligations
hereunder, to purchase and pay for the Debentures which such
Underwriter has agreed to purchase as provided in Section 5
hereof), except as otherwise provided in subsections (c) and (e)
of Section 8 hereof.
8. Covenants of FPL Group Capital and FPL Group. FPL Group
---------------------------------------------
Capital and FPL Group agree with the several Underwriters that:
-8-
<PAGE>
(a) FPL Group Capital and FPL Group will promptly file
the Prospectus with the Commission pursuant to Rule 424
under the Securities Act.
(b) FPL Group Capital will deliver to the
Representatives and to Counsel for the Underwriters one
signed copy of each of the Registration Statement,
Registration Statement No. 33-47813 and Registration
Statement 33-69786 or, if a signed copy is not available,
one conformed copy of each of the Registration Statement,
Registration Statement No. 33-47813 and Registration
Statement 33-69786 certified by an officer of FPL Group
Capital to be in the form as originally filed, including all
Incorporated Documents and exhibits, except those
incorporated by reference, which relate to the Debentures,
including a signed or conformed copy of each consent and
certificate included therein or filed as an exhibit thereto.
FPL Group Capital will deliver to the Underwriters through
the Representatives as soon as practicable after the date of
this agreement as many copies of the Prospectus as the
Representatives may reasonably request for the purposes
contemplated by the Securities Act. FPL Group Capital and
FPL Group will promptly advise the Representatives of the
issuance of any stop order under the Securities Act with
respect to Registration Statement No. 33-69786, Registration
Statement No. 33-47813 or the Registration Statement or the
institution of any proceedings therefor of which it shall
have received notice prior to the termination of the
offering of the Debentures hereunder. FPL Group Capital and
FPL Group will each use its best efforts to prevent the
issuance of any such stop order and to secure the prompt
removal thereof, if issued.
(c) FPL Group Capital will pay all expenses in
connection with (i) the preparation and filing of the
Registration Statement and Prospectus, (ii) the issuance and
delivery of the Debentures and Guarantee as provided in
Section 7 hereof, (iii) the preparation, execution and
delivery of the Indenture, and (iv) the printing and
delivery to the Representatives for the account of the
Underwriters, in reasonable quantities, of copies of the
Registration Statement, Registration Statement No. 33-47813
and Registration Statement 33-69786 and the Prospectus and
the Indenture. FPL Group Capital will pay all taxes, if any
(but not including any transfer taxes), on the issuance of
the Debentures and Guarantee. FPL Group Capital shall not,
however, be required to pay any amount for any expenses of
the Representatives or any of the Underwriters, except as
provided in Sections 9 and 10 hereof and except that if this
agreement shall be terminated in accordance with the
provisions of Sections 9, 10 or 12 hereof, FPL Group Capital
will pay the fees and disbursements of Counsel for the
Underwriters, whose fees and disbursements the Underwriters
agree to pay in any other event. Neither FPL Group Capital
nor FPL Group shall in any event be liable to any of the
several Underwriters for damages on account of loss of
anticipated profits.
(d) During a period of nine months after the date of
this agreement, if any event relating to or affecting FPL
Group Capital or FPL Group shall occur which, in the opinion
of FPL Group Capital or FPL Group, should be set forth in a
supplement to or an amendment of the Prospectus in order to
make the Prospectus not misleading in light of the
-9-
<PAGE>
circumstances when it is delivered to a purchaser, FPL Group
Capital and FPL Group will forthwith at their expense
prepare and furnish to the Representatives a reasonable
number of copies of a supplement or supplements or an
amendment or amendments to the Prospectus which will
supplement or amend the Prospectus so that as supplemented
or amended it will not include any untrue statement of a
material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a
purchaser, not misleading; provided that should such event
relate solely to activities of any of the Underwriters, then
the Underwriters shall assume the expense of preparing and
furnishing copies of any such amendment or supplement. In
case any Underwriter is required to deliver a Prospectus
after the expiration of nine months after the date of this
agreement, FPL Group Capital upon the request of the
Representatives will furnish to the Representatives, at the
expense of such Underwriter, a reasonable quantity of a
supplemented or amended Prospectus or supplements or
amendments to the Prospectus complying with Section 10 of
the Securities Act.
(e) FPL Group Capital and FPL Group will furnish such
proper information as may be lawfully required and otherwise
cooperate in qualifying the Debentures and Guarantee for
offer and sale under the blue sky laws of such jurisdictions
as the Representatives may designate and will pay filing
fees in the aggregate not exceeding $5,000, provided that
neither FPL Group Capital nor FPL Group shall be required to
qualify as a foreign corporation or dealer in securities, or
to file any consents to service of process under the laws of
any jurisdiction, or to meet other requirements deemed by
FPL Group Capital or FPL Group to be unduly burdensome.
(f) FPL Group will make generally available to its
security holders (including holders of the Debentures), as
soon as practicable, an earnings statement (which need not
be audited, unless required so to be under Section 11(a) of
the Securities Act) of FPL Group in reasonable detail
covering the 12 months beginning not later than the first
day of the quarter next succeeding the month in which
occurred the effective date of the Registration Statement as
defined in Rule 158 under the Securities Act.
9. Conditions of Underwriters' Obligations. The several
---------------------------------------
obligations of the Underwriters to purchase and pay for the
Debentures shall be subject to the accuracy of, and compliance
with, the representations and warranties of FPL Group Capital and
FPL Group contained herein on the Closing Date, to the
performance by FPL Group Capital and FPL Group of their
obligations to be performed hereunder on or prior to the Closing
Date and to the following conditions:
(a) No stop order suspending the effectiveness of
Registration Statement No. 33-69786, Registration Statement
No. 33-47813 or the Registration Statement shall be in
effect on the Closing Date; no order of the Commission
directed to the adequacy of any Incorporated Document shall
have been issued; no proceedings for either such purpose
shall be pending before, or threatened by, the Commission on
such date;
-10-
<PAGE>
and the Representatives shall have received, prior to
payment for the Debentures, a certificate dated the Closing
Date and signed by an officer of FPL Group Capital and FPL
Group to the effect that, to the best of their knowledge, no
such order is in effect and no proceedings for either such
purpose are pending before, or to the knowledge of FPL Group
Capital and FPL Group threatened by, the Commission.
(b) At the Closing Date, the Representatives shall
have received from Steel Hector & Davis LLP, counsel to FPL
Group Capital and FPL Group, a favorable opinion (with a
copy thereof for each of the Underwriters), which opinion
will not pass upon compliance with provisions of the blue
sky laws of any jurisdiction, in form and substance
satisfactory to counsel for the Underwriters, to the effect
that:
(i) FPL Group Capital and FPL Group are validly
organized and existing corporations in good standing
under the laws of the State of Florida, and have valid
franchises, licenses and permits adequate for the
conduct of their respective businesses;
(ii) FPL Group Capital and FPL Group are
corporations duly authorized by their respective
Articles of Incorporation to conduct the businesses
which they are now conducting as set forth in the
Prospectus;
(iii) the Indenture has been duly and validly
authorized by all necessary corporate action, has been
duly and validly executed and delivered, and is a valid
and binding instrument enforceable in accordance with
its terms, except as limited by bankruptcy, insolvency
or other laws affecting creditors' rights generally and
limitations on the availability of equitable remedies;
(iv) the Debentures are valid and binding
obligations of FPL Group Capital enforceable in
accordance with their terms, except as limited by
bankruptcy, insolvency or other laws affecting
creditors' rights generally and limitations on the
availability of equitable remedies, and are entitled to
the benefits afforded by the Indenture;
(v) the Guarantee has been duly and validly
authorized by all necessary corporate action, has been
duly and validly executed and delivered and is a valid
and binding obligation of FPL Group enforceable in
accordance with its terms, except as limited by
bankruptcy, insolvency or other laws affecting
creditors rights generally and limitations on the
availability of equitable remedies;
(vi) to the best of the knowledge of said Counsel,
FPL Group Capital and its direct significant subsidiaries
(as defined in Regulation S-X) have good and marketable
title to all of the capital stock of its significant
subsidiaries
(as defined in Regulation S-X) free and clear of all
liens and encumbrances, except such as do not
materially affect the value thereof, and FPL Group has
good and marketable title to all of the common stock of
its subsidiaries free
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<PAGE>
and clear of all liens and encumbrances, except such as
do not materially affect the value thereof;
(vii) the Registration Statement, Registration
Statement No. 33-47813 and Registration Statement 33-
69786, each at its Effective Date, and the Prospectus,
at the 424 Date (except as to the financial statements
and other financial or statistical data contained or
incorporated by reference therein, upon which such
opinion need not pass), complied as to form in all
material respects with the applicable requirements of
the Securities Act and the applicable instructions,
rules and regulations of the Commission thereunder and
the Incorporated Documents (except as to the financial
statements and other financial or statistical data
contained or incorporated by reference therein, upon
which such opinion need not pass), at the time they
were filed with the Commission, complied as to form in
all material respects with the applicable requirements
of the Exchange Act and the applicable instructions,
rules and regulations of the Commission thereunder;
each of Registration Statement No. 33-69786,
Registration Statement No. 33-47813 and the
Registration Statement has become, and is, at the
Closing Date, effective under the Securities Act, and
to the best of the knowledge of said Counsel, no
proceedings for a stop order with respect to
Registration Statement No. 33-69786, Registration
Statement No. 33-47813 or the Registration Statement
are pending or threatened under Section 8 of the
Securities Act;
(viii) the consummation of the transactions
herein contemplated and the fulfillment of the terms
hereof and the compliance by FPL Group Capital with all
the terms and provisions of the Indenture and by FPL
Group with all the terms and provisions of the
Guarantee will not result in a breach of any of the
terms or provisions of, or constitute a default under,
the FPL Group Capital Charter or by-laws or the FPL
Group Charter or by-laws, or any indenture, mortgage,
deed of trust or other agreement or instrument the
terms of which are known to such Counsel to which FPL
Group Capital or FPL Group or any of their respective
subsidiaries, as the case may be, is now a party,
except where such breach or default would not have a
material adverse effect on the business, properties or
financial condition of FPL Group Capital or FPL Group,
each together with its respective subsidiaries taken as
a whole, as the case may be;
(ix) nothing has come to the attention of said
Counsel that would lead them to believe that the
Registration Statement, Registration Statement No. 33-
47813 or Registration Statement 33-69786 (except as to
the financial statements and other financial or
statistical data contained or incorporated by reference
therein, upon which such opinion need not pass and
except for those parts of the Registration Statement,
Registration Statement No. 33-47813 and Registration
Statement 33-69786 that constitute the Statements of
Eligibility on Form T-1, upon which such opinion need
not pass), each at its Effective Date, contained any
untrue statement of a material fact or omitted to state
a material fact required to be stated therein or
necessary
-12-
<PAGE>
to make the statements therein not misleading or that
the Prospectus, at the 424 Date and at the Closing Date
(except as aforesaid), included or includes, any untrue
statement of a material fact or omitted or omits to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading, provided
that such Counsel may state that their belief is based
upon their participation in the preparation of the
Registration Statement, Registration Statement No. 33-
47813, Registration Statement 33-69786 and the
Prospectus and any supplements and amendments thereto
and review and discussion of the contents thereof, but
is without independent check or verification except
as specified;
(x) to the best of the knowledge of said Counsel,
no approval, authorization, consent or order of any
public board or body (other than in connection or in
compliance with the provisions of the blue sky laws of
any jurisdiction) is legally required for the
authorization of the issuance and sale of the
Debentures and Guarantee;
(xi) the statements made in the Prospectus under
the headings "Description of Offered Debt Securities",
"Certain Terms of the Debentures" and "Description of
the Guarantee", insofar as they purport to constitute
summaries of the documents referred to therein,
constitute accurate summaries of the terms of such
documents in all material respects;
(xii) the Indenture and the Guarantee are duly
qualified under the 1939 Act;
(xiii) this agreement has been duly and validly
authorized, executed and delivered by FPL Group Capital
and FPL Group; and
(xiv) except as stated or referred to in the
Prospectus, there are no material pending legal
proceedings to which FPL Group Capital or any of its
subsidiaries or FPL Group or any of its subsidiaries is
a party or of which property of FPL Group Capital or
any of its subsidiaries or FPL Group or any of its
subsidiaries is the subject which if determined
adversely would have a material effect on FPL Group
Capital and its subsidiaries taken as a whole or FPL
Group and its subsidiaries taken as a whole, as the
case may be, and, to the best of the knowledge of said
Counsel, no such proceeding is known to be contemplated
by governmental authorities.
In said opinion such Counsel may rely as to all matters
of New York law on an opinion of Thelen Reid & Priest
LLP.
(c) At the Closing Date, the Representatives shall
have received from Thelen Reid & Priest LLP, counsel to FPL
Group
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<PAGE>
Capital and FPL Group, a favorable opinion (with a copy
thereof for each of the Underwriters), which opinion will
not pass upon compliance with provisions of the blue sky
laws of any jurisdiction, in form and substance satisfactory
to Counsel for the Underwriters, to the same effect with
respect to matters enumerated in paragraphs (iii) to (xiii)
of subsection (b) of this Section 9. In said opinion, such
counsel may rely as to all matters of Florida law on an
opinion of Steel Hector & Davis LLP, and will not pass upon
the incorporation of FPL Group or FPL Group Capital or
franchises.
(d) At the Closing Date, the Representatives shall
have received from Counsel for the Underwriters a favorable
opinion (with a copy thereof for each of the Underwriters)
to the same effect with respect to the matters enumerated in
(iii)-(v), (vii) and (ix)-(xiii) of subsection (b) of this
Section 9. In said opinion such Counsel may rely as to all
matters of Florida law on the opinion of Steel Hector &
Davis LLP, and will not pass upon the incorporation of FPL
Group or FPL Group Capital or franchises.
(e) At the Closing Date, the Representatives shall
have received from Deloitte & Touche LLP a letter (with
copies thereof for each of the Underwriters) to the effect
that (i) they are independent public accountants with
respect to FPL Group within the meaning of the Securities
Act and the Exchange Act and the applicable published rules
and regulations thereunder; (ii) in their opinion, the
consolidated financial statements of FPL Group audited by
them and incorporated by reference in the Prospectus comply
as to form in all material respects with the applicable
accounting requirements of the Securities Act and the
Exchange Act and the published rules and regulations
thereunder; (iii) on the basis of performing a review of
interim financial information as described in SAS No. 71,
Interim Financial Information, on the unaudited condensed
consolidated financial statements of FPL Group incorporated
by reference in the Prospectus, reading the latest available
interim unaudited consolidated financial statements of FPL
Group since the close of FPL Group's most recent audited
fiscal year, reading the minutes and consents of the Board
of Directors and the Finance Committee of the Board of
Directors and Shareholders of FPL Group since the end of the
most recent audited fiscal year, and inquiries of officials
of FPL Group who have responsibility for financial and
accounting matters (it being understood that the foregoing
procedures do not constitute an audit made in accordance
with generally accepted auditing standards and they would
not necessarily reveal matters of significance with respect
to the comments made in such letter, and accordingly that
Deloitte & Touche LLP makes no representation as to the
sufficiency of such procedures for the several Underwriters'
purposes), nothing has come to their attention which caused
them to believe that (a) the unaudited condensed
consolidated financial statements of FPL Group incorporated
by reference in the Prospectus (1) do not comply as to form
in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and
the published rules and regulations thereunder and (2)
except as disclosed in the Prospectus, are not in conformity
with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited
consolidated financial statements of FPL Group incorporated
by reference in the Prospectus; (b) at the date of the
latest available interim
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<PAGE>
balance sheet read by them and at a specified date not more
than five days prior to the Closing Date there was any
change in the capital stock or long-term debt of FPL Group
and its subsidiaries, or decrease in their consolidated net
assets, in each case as compared with amounts shown in the
most recent condensed consolidated balance sheet
incorporated by reference in the Prospectus, except in all
instances for changes or decreases which the Prospectus
discloses have occurred or may occur, or as occasioned by
the declaration, provision for, or payment of dividends, or
as occasioned by the sale of common stock pursuant to any
employee benefit plan or the dividend reinvestment plan or
the repurchase of common stock by FPL Group or which are
described in such letter; (c) for the period from the date
of the most recent condensed consolidated balance sheet
incorporated by reference in the Prospectus to the latest
available interim balance sheet read by them and for the
period from the date of the latest available interim balance
sheet read by them to a specified date not more than five
days prior to the Closing Date, there were any decreases, as
compared with the corresponding period in the preceding
year, in total consolidated operating revenues or in net
income, except in all instances for decreases which the
Prospectus discloses have occurred or may occur, or which
are described in such letter; and (iv) they have carried out
certain procedures and made certain findings, as specified
in such letter, with respect to certain amounts included in
the Prospectus and Exhibit 12 to the Registration Statement
and such other items as the Representatives may reasonably
request.
(f) Since the respective most recent dates as of which
information is given in the Registration Statement and
Prospectus, and up to the Closing Date, (i) there shall have
been no material adverse change in the business, properties
or financial condition of (a) FPL Group Capital and its
subsidiaries taken as a whole or (b) FPL Group and its
subsidiaries taken as a whole, except in each case as
reflected in or contemplated by the Registration Statement
and Prospectus, and (ii) there shall have been no material
transaction entered into by (a) FPL Group Capital or any of
its subsidiaries that is material to FPL Group Capital and
its subsidiaries taken as a whole or (b) FPL Group or any of
its subsidiaries that is material to FPL Group and its
subsidiaries taken as a whole, in each case other than
transactions disclosed by the Registration Statement and the
Prospectus, and transactions in the ordinary course of
business; and at the Closing Date, the Representatives shall
have received a certificate to such effect from each of FPL
Group Capital and FPL Group signed by an officer of FPL
Group Capital or FPL Group, as the case may be.
(g) All legal proceedings to be taken in connection
with the issuance and sale of the Debentures and the
Guarantee shall have been satisfactory in form and substance
to Counsel for the Underwriters.
In case any of the conditions specified above in this
Section 9 shall not have been fulfilled, this agreement may be
terminated by the Representatives, upon mailing or delivering
written notice thereof to FPL Group Capital. Any such termination
shall be without liability of any party to any other party except
as otherwise provided in subsections (c) and (e) of Section 8
hereof and except
-15-
<PAGE>
that in the event of such termination by the Representatives, FPL
Group Capital shall reimburse the Underwriters for out-of-pocket
expenses reasonably incurred by them in connection with the
transactions contemplated by this agreement, not in excess,
however, of an aggregate of $5,000.
10. Condition of FPL Group Capital's and FPL Group's
------------------------------------------------
Obligations. The obligation of FPL Group Capital to deliver the
-----------
Debentures and the obligation of FPL Group to deliver the
Guarantee shall be subject to the following condition:
(a) No stop order suspending the effectiveness of
Registration Statement No. 33-69786, Registration Statement
No. 33-47813 or the Registration Statement, and no order
directed to the adequacy of any Incorporated Document, shall
be in effect at the Closing Date, and no proceedings for
either such purpose shall be pending before, or threatened
by, the Commission on such date.
In case the condition specified in this Section 10 shall not
have been fulfilled, this agreement may be terminated by FPL
Group Capital and FPL Group upon mailing or delivering written
notice thereof to the Representatives. Any such termination shall
be without liability of any party to any other party, except as
otherwise provided in subsections (c) and (e) of Section 8 hereof
and except that in the event of such termination FPL Group
Capital shall reimburse the Underwriters for out-of-pocket
expenses reasonably incurred by them in connection with the
transactions contemplated by this agreement, not in excess,
however, of an aggregate of $5,000.
11. Indemnification.
---------------
(a) FPL Group Capital and FPL Group, jointly and
severally, agree to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter
within the meaning of Section 15 of the Securities Act
against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become
subject under the Securities Act or any other statute or
common law and to reimburse each such Underwriter and
controlling person for any legal or other expenses
(including, to the extent hereinafter provided, reasonable
counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or
liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities,
expenses or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus (if used prior
to the Effective Date of the Registration Statement),
including all Incorporated Documents, or in the Registration
Statement, Registration Statement No. 33-47813, Registration
Statement 33-69786 or the Prospectus, or the omission or
alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the
indemnity agreement contained in this paragraph shall not
apply to any such losses, claims, damages, liabilities,
expenses or actions arising out of, or based upon, any such
untrue statement or alleged untrue statement, or any such
omission or alleged omission, if such statement or omission
was made in reliance
-16-
<PAGE>
upon and in conformity with information furnished herein, to
FPL Group Capital or to FPL Group in writing by or on behalf
of any Underwriter, through the Representatives, for use in
connection with the preparation of the Registration
Statement, Registration Statement No. 33-47813, Registration
Statement 33-69786 or the Prospectus or any amendment or
supplement to either thereof, or arising out of, or based
upon, statements in or omissions from the Statements of
Eligibility on Form T-1 of the respective Trustees under the
Indenture and the Guarantee; and provided, further, that the
indemnity agreement contained in this paragraph in respect
of any preliminary prospectus shall not inure to the benefit
of any Underwriter (or of any person controlling such
Underwriter) on account of any such losses, claims, damages,
liabilities, expenses or actions arising from the sale of
the Debentures to any person if such Underwriter shall have
failed to send or give to such person (i) with or prior to
the written confirmation of such sale, a copy of the
Prospectus or the Prospectus as amended or supplemented, if
any amendments or supplements thereto shall have been
furnished at or prior to the time of written confirmation of
the sale involved, but exclusive of any Incorporated
Documents unless the alleged omission or alleged untrue
statement with respect to such preliminary prospectus is not
corrected in the Prospectus or the Prospectus as amended or
supplemented at the time of confirmation, or (ii) with or
prior to the delivery of such Debentures to such person, a
copy of any amendment or supplement to the Prospectus which
shall have been furnished subsequent to such written
confirmation and prior to the delivery of such Debentures to
such person, but exclusive of any Incorporated Documents
unless the alleged omission or alleged untrue statement with
respect to such preliminary prospectus was not corrected in
such amendment or supplement at the time of such delivery of
such Debentures. The indemnity agreement of FPL Group
Capital and FPL Group contained in this paragraph and the
representations and warranties of FPL Group Capital and FPL
Group contained in Section 3 and Section 4 hereof,
respectively, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf
of any Underwriter or any such controlling person, and shall
survive the delivery of the Debentures. The Underwriters
agree promptly to notify each of FPL Group Capital and FPL
Group, and each other Underwriter, of the commencement of
any litigation or proceedings against them or any of them or
any such controlling person in connection with the issuance
and sale of the Debentures.
(b) Each Underwriter agrees to indemnify and hold
harmless each of FPL Group Capital and FPL Group, their
respective officers and directors, each other Underwriter,
and each person who controls any thereof within the meaning
of Section 15 of the Securities Act against any and all
losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the
Securities Act or other statute or common law, and to
reimburse each of them for any legal or other expenses
(including, to the extent hereinafter provided, reasonable
counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or
liabilities, or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities,
expenses or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, Registration
-17-
<PAGE>
Statement No. 33-47813, Registration Statement 33-69786 or
the Prospectus or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading if
such statement or omission was made in reliance upon and in
conformity with information furnished herein, to FPL Group
Capital or FPL Group in writing by or on behalf of such
Underwriter, through the Representatives or otherwise, for
use in connection with the preparation of the Registration
Statement, Registration Statement No. 33-47813, Registration
Statement 33-69786 or the Prospectus or any amendment or
supplement to any thereof. The indemnity agreement of the
respective Underwriters contained in this paragraph shall
remain operative and in full force and effect, regardless of
any investigation made by or on behalf of FPL Group Capital,
FPL Group or any of its officers or directors or any such
other Underwriter or any such controlling person, and shall
survive the delivery of the Debentures. FPL Group Capital
and FPL Group agree promptly to notify the Representatives
of the commencement of any litigation or proceedings against
FPL Group Capital, FPL Group (or any controlling person of
either thereof) or any of its officers or directors in
connection with the issuance and sale of the Debentures.
(c) FPL Group Capital, FPL Group and the several
Underwriters each agree that, upon the receipt of notice of
the commencement of any action against it, its officers and
directors, or any person controlling it as aforesaid, in
respect of which indemnity may be sought on account of any
indemnity agreement contained herein, it will promptly give
written notice of the commencement thereof to the party or
parties against whom indemnity shall be sought thereunder,
but the omission so to notify such indemnifying party or
parties of any such action shall not relieve such
indemnifying party or parties from any liability which it or
they may have to the indemnified party otherwise than on
account of such indemnity agreement. In case such notice of
any such action shall be so given, such indemnifying party
shall be entitled to participate at its own expense in the
defense or, if it so elects, to assume (in conjunction with
any other indemnifying parties) the defense of such action,
in which event such defense shall be conducted by counsel
chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall
be defendant or defendants in such action, and such
defendant or defendants shall bear the fees and expenses of
any additional counsel retained by them; but if the
indemnifying party shall elect not to assume the defense of
such action, such indemnifying party will reimburse such
indemnified party or parties for the reasonable fees and
expenses of any counsel retained by them; provided, however,
if the defendants in any such action include both the
indemnified party and the indemnifying party and counsel for
the indemnifying party shall have reasonably concluded that
there may be a conflict of interest involved in the
representation by such counsel of both the indemnifying
party and the indemnified party, the indemnified party or
parties shall have the right to select separate counsel,
satisfactory to the indemnifying party, to participate in
the defense of such action on behalf of such indemnified
party or parties at the expense of the indemnifying party
(it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one
separate counsel representing the indemnified parties who
are parties to such action).
-18-
<PAGE>
12. Termination. This agreement may be terminated by the
-----------
Representatives by delivering written notice thereof to FPL Group
Capital, at any time prior to the Closing Date if (a) after the
date hereof and at or prior to the Closing Date there shall have
occurred any general suspension of trading in securities on the
New York Stock Exchange, Inc. or there shall have been
established by the New York Stock Exchange, Inc. or by the
Commission or by any federal or state agency or by the decision
of any court any limitation on prices for such trading or any
restrictions on the distribution of securities, or a general
banking moratorium declared by New York or federal authorities,
or (b) there shall have occurred any new outbreak of hostilities,
including, but not limited to, an escalation of hostilities which
existed prior to the date of this agreement or other national or
international calamity or crisis, the effect of any such event
specified in (a) or (b) above on the financial markets of the
United States shall be such as to make it impracticable for the
Underwriters to enforce contracts for the sale of the Debentures.
This agreement may also be terminated at any time prior to the
Closing Date if in the judgment of the Representatives the
subject matter of any amendment or supplement to the Registration
Statement, Registration Statement No. 33-47813, Registration
Statement 33-69786 or the Prospectus prepared and furnished by
FPL Group Capital or FPL Group reflects a material adverse change
in the business, properties or financial condition of FPL Group
Capital and its subsidiaries taken as a whole or FPL Group and
its subsidiaries taken as a whole which renders it either
inadvisable to proceed with such offering, if any, or inadvisable
to proceed with the delivery of the Debentures to be purchased
hereunder. Any termination of this agreement pursuant to this
Section 12 shall be without liability of any party to any other
party except as otherwise provided in subsections (c) and (e) of
Section 8 hereof.
13. Miscellaneous. The validity and interpretation of this
-------------
agreement shall be governed by the laws of the State of New York.
This agreement shall inure to the benefit of FPL Group Capital,
FPL Group, the several Underwriters and, with respect to the
provisions of Section 11 hereof, each controlling person referred
to in said Section 11, and their respective successors. Nothing
in this agreement is intended or shall be construed to give to
any other person, firm or corporation any legal or equitable
right, remedy or claim under or in respect of this agreement or
any provision herein contained. The term "successors" as used in
this agreement shall not include any purchaser, as such
purchaser, of any Debentures from any of the several
Underwriters.
14. Notices. All communications hereunder shall be in
-------
writing or by telegram and, if to the Underwriters, shall be
mailed or delivered to the Representatives at the address set
forth in Schedule I hereto, or if to FPL Group Capital or FPL
Group, shall be mailed or delivered to it at 700 Universe
Boulevard, Juno Beach, Florida 33408, Attention: Treasurer.
-19-
<PAGE>
If the foregoing correctly sets forth our understanding,
please indicate your acceptance thereof in the space provided
below for that purpose, whereupon this letter and your acceptance
shall constitute a binding agreement between us.
Very truly yours,
FPL Group Capital Inc
By:
---------------------------
Name:
Title:
FPL Group, Inc.
By:
---------------------------
Name:
Title:
Accepted and delivered as of
the date first above written:
By:
---------------------------
Name:
Title:
Acting on their own behalf and as Representatives of the other
several Underwriters referred to in the foregoing agreement.
-20-
<PAGE>
SCHEDULE I
Underwriting Agreement dated
Registration Statement Nos. 33-47813, 33-69786, and 333-
------
Representatives and Addresses:
Securities:
Designation:
Principal Amount:
Indenture dated as of
Date of Maturity:
Interest Rate:
Purchase Price:
Public Offering Price:
Closing Date and Location:
<PAGE>
SCHEDULE II
Underwriter Principal Amount
----------- of Debentures
---------------------
TOTAL
--------------------
EXHIBIT 4(A)
---------------------------------------------
FPL GROUP CAPITAL INC
TO
THE BANK OF NEW YORK,
TRUSTEE
----------
INDENTURE
(FOR UNSECURED DEBT SECURITIES)
DATED AS OF 1, 1998
----------
---------------------------------------------
<PAGE>
TABLE OF CONTENTS
RECITAL OF THE COMPANY . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE . . . . . . . . . . . . . . . . . . . . . . . . . 1
Definitions and Other Provisions of General Application . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . 2
Authorized Officer . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . 3
Company Request or Company Order . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . 3
Corporation . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . 3
Discount Security . . . . . . . . . . . . . . . . . 3
Dollar or $ . . . . . . . . . . . . . . . . . . . . 3
Eligible Obligations . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . 3
Governmental Authority . . . . . . . . . . . . . . 3
Government Obligations . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . 4
Officer's Certificate . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . . . 6
Periodic Offering . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . 6
Regular Record Date . . . . . . . . . . . . . . . . 6
Required Currency . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . 6
Securities . . . . . . . . . . . . . . . . . . . . 6
Security Register and Security Registrar . . . . . 6
Special Record Date . . . . . . . . . . . . . . . . 7
Stated Interest Rate . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . 7
Tranche . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . 7
United States . . . . . . . . . . . . . . . . . . . 7
SECTION 102. Compliance Certificates and Opinions . . . 7
SECTION 103. Form of Documents Delivered to Trustee . . 8
SECTION 104. Acts of Holders . . . . . . . . . . . . . 9
SECTION 105. Notices, Etc. to Trustee and Company . . . 10
SECTION 106. Notice to Holders of Securities; Waiver . 11
SECTION 107. Conflict with Trust Indenture Act . . . . 11
SECTION 108. Effect of Headings and Table of Contents . 11
SECTION 109. Successors and Assigns . . . . . . . . . . 12
SECTION 110. Separability Clause . . . . . . . . . . . 12
SECTION 111. Benefits of Indenture . . . . . . . . . . 12
SECTION 112. Governing Law . . . . . . . . . . . . . . 12
SECTION 113. Legal Holidays . . . . . . . . . . . . . . 12
ARTICLE TWO . . . . . . . . . . . . . . . . . . . . . . . . . 12
Security Forms . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 201. Forms Generally . . . . . . . . . . . . . 12
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . 13
ARTICLE THREE . . . . . . . . . . . . . . . . . . . . . . . . 13
The Securities . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 301. Amount Unlimited; Issuable in Series . . . 13
SECTION 302. Denominations . . . . . . . . . . . . . . 16
SECTION 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . 17
SECTION 304. Temporary Securities . . . . . . . . . . . 19
SECTION 305. Registration, Registration of Transfer
and Exchange. . . . . . . . . . . . . . . 20
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . 21
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . 22
SECTION 308. Persons Deemed Owners . . . . . . . . . . 23
SECTION 309. Cancellation by Security Registrar . . . . 23
SECTION 310. Computation of Interest . . . . . . . . . 23
SECTION 311. Payment to Be in Proper Currency . . . . . 23
ARTICLE FOUR . . . . . . . . . . . . . . . . . . . . . . . . 24
Redemption of Securities . . . . . . . . . . . . . . . . . . 24
SECTION 401. Applicability of Article . . . . . . . . . 24
SECTION 402. Election to Redeem; Notice to Trustee . . 24
SECTION 403. Selection of Securities to Be Redeemed . . 24
SECTION 404. Notice of Redemption . . . . . . . . . . . 25
SECTION 405. Securities Payable on Redemption Date . . 26
SECTION 406. Securities Redeemed in Part . . . . . . . 26
ARTICLE FIVE . . . . . . . . . . . . . . . . . . . . . . . . 27
Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 501. Applicability of Article . . . . . . . . . 27
SECTION 502. Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . . 27
SECTION 503. Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . . 27
ARTICLE SIX . . . . . . . . . . . . . . . . . . . . . . . . . 28
Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 601. Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . . . 28
SECTION 602. Maintenance of Office or Agency . . . . . 28
SECTION 603. Money for Securities Payments to Be Held
in Trust . . . . . . . . . . . . . . . . . 29
SECTION 604. Corporate Existence . . . . . . . . . . . 30
SECTION 605. Maintenance of Properties . . . . . . . . 30
SECTION 606. Annual Officer's Certificate as to
Compliance. . . . . . . . . . . . . . . . 31
SECTION 607. Waiver of Certain Covenants . . . . . . . 31
ARTICLE SEVEN . . . . . . . . . . . . . . . . . . . . . . . . 31
Satisfaction and Discharge . . . . . . . . . . . . . . . . . 31
SECTION 701. Satisfaction and Discharge of Securities . 31
SECTION 702. Satisfaction and Discharge of Indenture . 33
SECTION 703. Application of Trust Money . . . . . . . . 34
ARTICLE EIGHT . . . . . . . . . . . . . . . . . . . . . . . . 34
Events of Default; Remedies . . . . . . . . . . . . . . . . . 34
SECTION 801. Events of Default . . . . . . . . . . . . 34
SECTION 802. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . 36
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by TRUSTEE . . . . . . . . . . 37
SECTION 804. Trustee May File Proofs of Claim . . . . . 37
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . 38
SECTION 806. Application of Money Collected . . . . . . 38
SECTION 807. Limitation on Suits . . . . . . . . . . . 38
SECTION 808. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . 39
SECTION 809. Restoration of Rights and Remedies . . . . 39
SECTION 810. Rights and Remedies Cumulative . . . . . . 39
SECTION 811. Delay or Omission Not Waiver . . . . . . . 40
SECTION 812. Control by Holders of Securities . . . . . 40
SECTION 813. Waiver of Past Defaults . . . . . . . . . 40
SECTION 814. Undertaking for Costs . . . . . . . . . . 41
SECTION 815. Waiver of Stay or Extension Laws . . . . . 41
ARTICLE NINE . . . . . . . . . . . . . . . . . . . . . . . . 41
The Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 901. Certain Duties and Responsibilities . . . 41
SECTION 902. Notice of Defaults . . . . . . . . . . . . 42
SECTION 903. Certain Rights of Trustee . . . . . . . . 43
SECTION 904. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . 44
SECTION 905. May Hold Securities . . . . . . . . . . . 44
SECTION 906. Money Held in Trust . . . . . . . . . . . 44
SECTION 907. Compensation and Reimbursement . . . . . . 45
SECTION 908. Disqualification; Conflicting Interests. . 45
SECTION 909. Corporate Trustee Required; Eligibility . 46
SECTION 910. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . 46
SECTION 911. Acceptance of Appointment by Successor . . 48
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . 49
SECTION 913. Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . 49
SECTION 914. Co-trustees and Separate Trustees. . . . . 50
SECTION 915. Appointment of Authenticating Agent . . . 51
ARTICLE TEN . . . . . . . . . . . . . . . . . . . . . . . . . 52
Holders' Lists and Reports by Trustee and Company . . . . . . 52
SECTION 1001. Lists of Holders . . . . . . . . . . . . 52
SECTION 1002. Reports by Trustee and Company . . . . . 53
ARTICLE ELEVEN . . . . . . . . . . . . . . . . . . . . . . . 53
Consolidation, Merger, Conveyance or Other Transfer . . . . . 53
SECTION 1101. Company May Consolidate, Etc., Only on
Certain Terms . . . . . . . . . . . . . 53
SECTION 1102. Successor Entity Substituted . . . . . . 54
ARTICLE TWELVE . . . . . . . . . . . . . . . . . . . . . . . 54
Supplemental Indentures . . . . . . . . . . . . . . . . . . . 54
SECTION 1201. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . 54
SECTION 1202. Supplemental Indentures With Consent of
Holders . . . . . . . . . . . . . . . . . 56
SECTION 1203. Execution of Supplemental Indentures . . 57
SECTION 1204. Effect of Supplemental Indentures . . . . 57
SECTION 1205. Conformity With Trust Indenture Act . . . 57
SECTION 1206. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . 57
SECTION 1207. Modification Without Supplemental
Indenture . . . . . . . . . . . . . . . . 58
ARTICLE THIRTEEN . . . . . . . . . . . . . . . . . . . . . . 58
Meetings of Holders; Action Without Meeting . . . . . . . . . 58
SECTION 1301. Purposes for Which Meetings May Be
Called . . . . . . . . . . . . . . . . . 58
SECTION 1302. Call, Notice and Place of Meetings . . . 58
SECTION 1303. Persons Entitled to Vote at Meetings . . 59
SECTION 1304. Quorum; Action . . . . . . . . . . . . . 59
SECTION 1305. Attendance at Meetings; Determination of
Voting Rights; Conduct
and Adjournment of Meetings . . . . . . . 60
SECTION 1306. Counting Votes and Recording Action of
Meetings . . . . . . . . . . . . . . . . 61
SECTION 1307. Action Without Meeting . . . . . . . . . 61
ARTICLE FOURTEEN . . . . . . . . . . . . . . . . . . . . . . 61
Immunity of Incorporators, Stockholders, Officers and Directors
61
SECTION 1401. Liability Solely Corporate . . . . . . . 61
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . 62
Signatures and Seals . . . . . . . . . . . . . . . . . . . . 62
Acknowledgements . . . . . . . . . . . . . . . . . . . . . . 63
<PAGE>
FPL GROUP CAPITAL INC
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF 1, 1998
----------
TRUST INDENTURE ACT SECTION INDENTURE SECTION
Sec.310 (a)(1) . . . . . . . . . . . . . . . . 909
(a)(2) . . . . . . . . . . . . . . . . 909
(a)(3) . . . . . . . . . . . . . . . . 914(b)
(a)(4) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . 908
. . . . . . . . . . . . . . . . . 910
Sec 311 (a) . . . . . . . . . . . . . . . . . 913
(b) . . . . . . . . . . . . . . . . . 913
(c) . . . . . . . . . . . . . . . . . 913
Sec 312 (a) . . . . . . . . . . . . . . . . 1001
(b) . . . . . . . . . . . . . . . . . 1001
(c) . . . . . . . . . . . . . . . . . 1001
Sec 313 (a) . . . . . . . . . . . . . . . . . 1002
(b) . . . . . . . . . . . . . . . . . 1002
(c) . . . . . . . . . . . . . . . . . 1002
(d) . . . . . . . . . . . . . . . . . 1002
Sec 314 (a) . . . . . . . . . . . . . . . . . 1002
(a)(4) . . . . . . . . . . . . . . . . 606
(b) . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . 102
Sec 315 (a) . . . . . . . . . . . . . . . . . 901
. . . . . . . . . . . . . . . . . 903
(b) . . . . . . . . . . . . . . . . . 902
(c) . . . . . . . . . . . . . . . . . 901
(d) . . . . . . . . . . . . . . . . . 901
(e) . . . . . . . . . . . . . . . . . 814
Sec 316 (a) . . . . . . . . . . . . . . . . . 812
. . . . . . . . . . . . . . . . . 813
(a)(1)(A) . . . . . . . . . . . . . . 802
. . . . . . . . . . . . . . . . . 812
(a)(1)(B) . . . . . . . . . . . . . . 813
(a)(2) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . 808
Sec 317 (a)(1) . . . . . . . . . . . . . . . . 803
(a)(2) . . . . . . . . . . . . . . . . 804
(b) . . . . . . . . . . . . . . . . . 603
Sec 318 (a) . . . . . . . . . . . . . . . . . 107
<PAGE>
INDENTURE, dated as of 1, 1998 between FPL GROUP
--------
CAPITAL INC, a corporation duly organized and existing under the
laws of the State of Florida (herein called the "Company"),
having its principal office at 700 Universe Boulevard, Juno
Beach, Florida 33408, and The Bank of New York, a New York
banking corporation having its principal corporate trust office
at 101 Barclay Street, Floor 21W, New York, New York 10286, as
Trustee (herein called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and deliv-
ery of this Indenture to provide for the issuance from time to
time of its unsecured debentures, notes or other evidences of
indebtedness (herein called the "Securities"), in an unlimited
aggregate principal amount to be issued in one or more series as
contemplated herein; and all acts necessary to make this
Indenture a valid agreement of the Company have been performed.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires,
capitalized terms used herein shall have the meanings assigned to
them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase
of the Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Securities or of any series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(b) all terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them
therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles in the United
States, and, except as otherwise herein expressly provided,
the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally
accepted in the United States at the date of such
computation or, at the election of the Company from time to
time, at the date of the execution and delivery of this
Indenture; provided, however, that in determining generally
accepted accounting principles applicable to the Company,
the Company shall, to the extent required, conform to any
order, rule or regulation of any administrative agency,
regulatory authority or other governmental body having
jurisdiction over the Company; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article Nine, are
defined in that Article.
"ACT", when used with respect to any Holder of a
Security, has the meaning specified in Section 104.
"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 through
one or more intermediaries, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"CONTROLLING" and "CONTROLLED" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" means any Person (other than the
Company or an Affiliate of the Company) authorized by the Trustee
to act on behalf of the Trustee to authenticate one or more
series of Securities.
"AUTHORIZED OFFICER" means the Chairman of the Board,
the President, any Vice President, the Treasurer, any Assistant
Treasurer or any other duly authorized officer of the Company.
"BOARD OF DIRECTORS" means either the board of
directors of the Company or any committee thereof duly authorized
to act in respect of matters relating to this Indenture.
"BOARD RESOLUTION" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"BUSINESS DAY", when used with respect to a Place of
Payment or any other particular location specified in the
Securities or this Indenture, means any day, other than a
Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or other
location are generally authorized or required by law, regulation
or executive order to remain closed, except as may be otherwise
specified as contemplated by Section 301.
"COMMISSION" means the Securities and Exchange Commis-
sion, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or, if at any time
after the date of execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body, if any, per-
forming such duties at such time.
"COMPANY" means the Person named as the "Company" in
the first paragraph of this Indenture until a successor Person
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such
successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written
request or order signed in the name of the Company by an
Authorized Officer and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at the
date of execution and delivery of this Indenture is located at
101 Barclay Street, Floor 21W, New York, New York 10286.
"CORPORATION" means a corporation, association, compa-
ny, limited liability company, joint stock company or business
trust.
"DEFAULTED INTEREST" has the meaning specified in
Section 307.
"DISCOUNT SECURITY" means any Security which provides
for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802. The term "INTEREST" with
respect to a Discount Security means interest, if any, borne by
such Security at a Stated Interest Rate.
"DOLLAR" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States as at the time
shall be legal tender for the payment of public and private
debts.
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a
currency other than Dollars or in a composite currency, such
other obligations or instruments as shall be specified with
respect to such Securities, as contemplated by Section 301.
"EVENT OF DEFAULT" has the meaning specified in Section
801.
"GOVERNMENTAL AUTHORITY" means the government of the
United States or of any State or Territory thereof or of the
District of Columbia or of any county, municipality or other
political subdivision of any of the foregoing, or any department,
agency, authority or other instrumentality of any of the
foregoing.
"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations the princi-
pal of and interest on which are unconditionally guaranteed
by, the United States and entitled to the benefit of the
full faith and credit thereof; and
(b) certificates, depositary receipts or other in-
struments which evidence a direct ownership interest in
obligations described in clause (a) above or in any specific
interest or principal payments due in respect thereof;
provided, however, that the custodian of such obligations or
specific interest or principal payments shall be a bank or
trust company (which may include the Trustee or any Paying
Agent) subject to Federal or state supervision or
examination with a combined capital and surplus of at least
$50,000,000; and provided, further, that except as may be
otherwise required by law, such custodian shall be obligated
to pay to the holders of such certificates, depositary
receipts or other instruments the full amount received by
such custodian in respect of such obligations or specific
payments and shall not be permitted to make any deduction
therefrom.
"HOLDER" means a Person in whose name a Security is
registered in the Security Register.
"INDENTURE" means this instrument as originally
executed and delivered and as it may from time to time be
supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities
established as contemplated by Section 301.
"INTEREST PAYMENT DATE", when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"MATURITY", when used with respect to any Security,
means the date on which the principal of such Security or an
installment of principal becomes due and payable as provided in
such Security or in this Indenture, whether at the Stated
Maturity, by declaration of acceleration, upon call for
redemption or otherwise.
"OFFICER'S CERTIFICATE" means a certificate signed by
an Authorized Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of
counsel, who may be counsel for the Company, or other counsel
acceptable to the Trustee.
"OUTSTANDING", when used with respect to Securities,
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this Indenture,
except:
(a) Securities theretofore canceled or delivered to
the Security Registrar for cancellation;
(b) Securities deemed to have been paid in accordance
with Section 701; and
(c) Securities which have been paid pursuant to Sec-
tion 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it and the Company that such Securities are
held by a bona fide purchaser or purchasers in whose hands
such Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders
of the requisite principal amount of the Securities Outstanding
under this Indenture, or the Outstanding Securities of any series
or Tranche, have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or whether or not
a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the
Company or of such other obligor (unless the Company,
such Affiliate or such obligor owns all Securities
Outstanding under this Indenture, or all Outstanding
Securities of each such series and each such Tranche,
as the case may be, determined without regard to this
clause (x)) shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice,
consent or waiver or upon any such determination as to
the presence of a quorum, only Securities which the
Trustee knows to be so owned shall be so disregarded;
provided, however, that Securities so owned which have
been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to
act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon
the Securities or any Affiliate of the Company or of
such other obligor;
(y) the principal amount of a Discount Security
that shall be deemed to be Outstanding for such
purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such
determination upon a declaration of acceleration of the
Maturity thereof pursuant to Section 802; and
(z) the principal amount of any Security which is
denominated in a currency other than Dollars or in a
composite currency that shall be deemed to be
Outstanding for such purposes shall be the amount of
Dollars which could have been purchased by the princi-
pal amount (or, in the case of a Discount Security, the
Dollar equivalent on the date determined as set forth
below of the amount determined as provided in (y)
above) of such currency or composite currency evidenced
by such Security, in each such case certified to the
Trustee in an Officer's Certificate, based (i) on the
average of the mean of the buying and selling spot
rates quoted by three banks which are members of the
New York Clearing House Association selected by the
Company in effect at 11:00 A.M. (New York time) in The
City of New York on the fifth Business Day preceding
any such determination or (ii) if on such fifth
Business Day it shall not be possible or practicable to
obtain such quotations from such three banks, on such
other quotations or alternative methods of deter-
mination which shall be as consistent as practicable
with the method set forth in (i) above;
provided, further, that, in the case of any Security the
principal of which is payable from time to time without
presentment or surrender, the principal amount of such Security
that shall be deemed to be Outstanding at any time for all
purposes of this Indenture shall be the original principal amount
thereof less the aggregate amount of principal thereof
theretofore paid.
"PAYING AGENT" means any Person, including the Company,
authorized by the Company to pay the principal of and premium, if
any, or interest, if any, on any Securities on behalf of the
Company.
"PERIODIC OFFERING" means an offering of Securities of
a series from time to time any or all of the specific terms of
which Securities, including without limitation the rate or rates
of interest, if any, thereon, the Stated Maturity or Maturities
thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents upon
the issuance of such Securities.
"PERSON" means any individual, Corporation,
partnership, joint venture, trust or unincorporated organization
or any Governmental Authority thereof.
"PLACE OF PAYMENT", when used with respect to the
Securities of any series, or any Tranche thereof, means the place
or places, specified as contemplated by Section 301, at which,
subject to Section 602, principal of and premium, if any, and
interest, if any, on the Securities of such series or Tranche are
payable.
"PREDECESSOR SECURITY" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and
delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed (to
the extent lawful) to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"REDEMPTION DATE", when used with respect to any
Security to be redeemed, means the date fixed for such redemption
by or pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any
Security to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture.
"REGULAR RECORD DATE" for the interest payable on any
Interest Payment Date on the Securities of any series means the
date specified for that purpose as contemplated by Section 301.
"REQUIRED CURRENCY" has the meaning specified in
Section 311.
"RESPONSIBLE OFFICER", when used with respect to the
Trustee, means any vice-president, any assistant vice-president,
any assistant secretary, any assistant treasurer, any trust
officer or any other officer of the 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 Indenture.
"SECURITIES" has the meaning stated in the first
recital of this Indenture and more particularly means any
securities authenticated and delivered under this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 305.
"SPECIAL RECORD DATE" for the payment of any Defaulted
Interest on the Securities of any series means a date fixed by
the Trustee pursuant to Section 307.
"STATED INTEREST RATE" means a rate (whether fixed or
variable) at which an obligation by its terms is stated to bear
simple interest. Any calculation or other determination to be
made under this Indenture by reference to the Stated Interest
Rate on a Security shall be made without regard to the effective
interest cost to the Company of such Security and without regard
to the Stated Interest Rate on, or the effective cost to the
Company of, any other indebtedness in respect of which the
Company's obligations are evidenced or secured in whole or in
part by such Security.
"STATED MATURITY", when used with respect to any
obligation or any installment of principal thereof or interest
thereon, means the date on which the principal of such obligation
or such installment of principal or interest is stated in such
Security to be due and payable (without regard to any provisions
for redemption, prepayment, acceleration, purchase or extension).
"TRANCHE" means a group of Securities which (a) are of
the same series and (b) have identical terms except as to
principal amount and/or date of issuance.
"TRUST INDENTURE ACT" means, as of any time, the Trust
Indenture Act of 1939, as amended, or any successor statute, as
in effect at such time.
"TRUSTEE" means the Person named as the "Trustee" in
the first paragraph of this Indenture until a successor Trustee
shall have become such with respect to one or more series of
Securities pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each
Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to
the Securities of any series shall mean the Trustee with respect
to Securities of that series.
"UNITED STATES" means the United States of America, its
Territories, its possessions and other areas subject to its
political jurisdiction.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this
Indenture, upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture,
the Company shall furnish to the Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied
with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or
request as to which the furnishing of such documents is speci-
fically required by any provision of this Indenture relating to
such particular application or request, no additional certificate
or opinion need be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall
include:
(a) a statement that each Person signing such cer-
tificate or opinion has read such covenant or condition and
the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(c) a statement that, in the opinion of each such
Person, such Person has made such examination or
investigation as is necessary to enable such Person 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 each
such Person, such condition or covenant has been complied
with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to the matters upon which such Officer's Certificate or
opinion are based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Company stating that the
information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
Whenever, subsequent to the receipt by the Trustee of
any Board Resolution, Officer's Certificate, Opinion of Counsel
or other document or instrument, a clerical, typographical or
other inadvertent or unintentional error or omission shall be
discovered therein, a new document or instrument may be
substituted therefor in corrected form with the same force and
effect as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution and/or
delivery thereof, such substitute document or instrument shall be
deemed to have been executed and/or delivered as of the date or
dates required with respect to the document or instrument for
which it is substituted. Anything in this Indenture to the
contrary notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at the
request of the Company which could not have been taken had the
original document or instrument not contained such error or
omission, the action so taken shall not be invalidated or
otherwise rendered ineffective but shall be and remain in full
force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the
generality of the foregoing, any Securities issued under the
authority of such defective document or instrument shall
nevertheless be the valid obligations of the Company entitled to
the benefits of this Indenture equally and ratably with all other
Outstanding Securities, except as aforesaid.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization,
direction, notice, consent, election, waiver or other action
provided by this Indenture to be made, given or taken by
Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing
or, alternatively, may be embodied in and evidenced by the
record of Holders voting in favor thereof, either in person
or by proxies duly appointed in writing, at any meeting of
Holders duly called and held in accordance with the
provisions of Article Thirteen, or a combination of such
instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when
such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments
and any such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments
and so voting at any such meeting. Proof of execution of
any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and (subject
to Section 901) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
The record of any meeting of Holders shall be proved in the
manner provided in Section 1306.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the
affidavit of a witness of such execution or by a certificate
of a notary public or other officer authorized by law to
take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged
to him the execution thereof or may be proved in any other
manner which the Trustee and the Company deem sufficient.
Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his
authority.
(c) The principal amount (except as otherwise
contemplated in clause (y) of the first proviso to the
definition of Outstanding) and serial numbers of Securities
held by any Person, and the date of holding the same, shall
be proved by the Security Register.
(d) Any request, demand, authorization, direction, no-
tice, consent, election, waiver or other Act of a Holder
shall bind every future Holder of the same Security and the
Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done
by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
(e) Until such time as written instruments shall have
been delivered to the Trustee with respect to the requisite
percentage of principal amount of Securities for the action
contemplated by such instruments, any such instrument
executed and delivered by or on behalf of a Holder may be
revoked with respect to any or all of such Securities by
written notice by such Holder or any subsequent Holder,
proven in the manner in which such instrument was proven.
(f) Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may,
and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any action taken by such
Act of Holders. If the Company shall so determine, new
Securities of any series, or any Tranche thereof, so
modified as to conform, in the opinion of the Trustee and
the Company, to such action may be prepared and executed by
the Company and authenticated and delivered by the Trustee
in exchange for Outstanding Securities of such series or
Tranche.
(g) If the Company shall solicit from Holders any
request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by
Company Order, fix in advance a record date for the
determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation to do
so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other
Act may be given before or after such record date, but only
the Holders of record at the close of business on the record
date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of
the Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose
the Outstanding Securities shall be computed as of the
record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice,
consent, election, waiver or Act of Holders or other document
provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with, the Trustee by any Holder or by the
Company, or the Company by the Trustee or by any Holder, shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and delivered personally to an
officer or other responsible employee of the addressee, or
transmitted by facsimile transmission or other direct written
electronic means to such telephone number or other electronic
communications address as the parties hereto shall from time to
time designate, or transmitted by registered mail, charges
prepaid, to the applicable address set opposite such party's name
below or to such other address as either party hereto may from
time to time designate:
If to the Trustee, to:
The Bank of New York
101 Barclay Street, Floor 21W
New York, New York 10286
Attention: Corporate Trust Administration
Telephone: (212) 815-5941
Telecopy: (212) 815-5915
If to the Company, to:
FPL Group Capital Inc
700 Universe Boulevard
Juno Beach, Florida 33408
Attention:
Telephone:
Telecopy:
Any communication contemplated herein shall be deemed
to have been made, given, furnished and filed if personally
delivered, on the date of delivery, if transmitted by facsimile
transmission or other direct written electronic means, on the
date of transmission, and if transmitted by registered mail, on
the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where
this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given, and shall be deemed given, to
Holders if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at the address of such Holder
as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the
giving of such notice.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable
to give such notice to Holders by mail, then such notification as
shall be made with the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder. In any case
where notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice
with respect to other Holders.
Any notice required by this Indenture may be waived in
writing by the Person entitled to receive such notice, either
before or after the event otherwise to be specified therein, and
such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or
conflicts with another provision hereof which is required or
deemed to be included in this Indenture by, or is otherwise
governed by, any of the provisions of the Trust Indenture Act,
such other provision shall control; and if any provision hereof
otherwise conflicts with the Trust Indenture Act, the Trust
Indenture Act shall control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings in this Indenture and
the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the
Company and Trustee shall bind their respective successors and
assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the
Securities shall be held to be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto,
their successors hereunder and the Holders any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by
and construed in accordance with 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.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption
Date or Stated Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities other than a
provision in Securities of any series, or any Tranche thereof, or
in the Board Resolution or Officer's Certificate which
establishes the terms of the Securities of such series or
Tranche, which specifically states that such provision shall
apply in lieu of this Section) payment of interest or principal
and premium, if any, need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at
such Place of Payment, with the same force and effect, and in the
same amount, as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, as the case may be,
and, if such payment is made or duly provided for on such
Business Day, no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be, to such
Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series shall be in
substantially the form or forms thereof established in the
indenture supplemental hereto establishing such series or in a
Board Resolution establishing such series, or in an Officer's
Certificate pursuant to such supplemental indenture or Board
Resolution, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as
evidenced by their execution of the Securities. If the form or
forms of Securities of any series are established in a Board
Resolution or in an Officer's Certificate pursuant to a Board
Resolution, such Board Resolution and Officer's Certificate, if
any, shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Sections
301 or 1201(g), the Securities of each series shall be issuable
in registered form without coupons. The definitive Securities
shall be produced in such manner as shall be determined by the
officers executing such Securities, as evidenced by their
execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
The Bank of New York as
Trustee
By:
--------------------------
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may
be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series.
Subject to the last paragraph of this Section, prior to the
authentication and delivery of Securities of any series there
shall be established by specification in a supplemental indenture
or in a Board Resolution, or in an Officer's Certificate pursuant
to a supplemental indenture or a Board Resolution:
(a) the title of the Securities of such series (which
shall distinguish the Securities of such series from
Securities of all other series);
(b) any limit upon the aggregate principal amount of
the Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
such series pursuant to Section 304, 305, 306, 406 or 1206
and, except for any Securities which, pursuant to Section
303, are deemed never to have been authenticated and
delivered hereunder);
(c) the Person or Persons (without specific
identification) to whom interest on Securities of such
series, or any Tranche thereof, shall be payable on any
Interest Payment Date, if other than the Persons in whose
names such Securities (or one or more Predecessor
Securities) are registered at the close of business on the
Regular Record Date for such interest;
(d) the date or dates on which the principal of the
Securities of such series or any Tranche thereof, is payable
or any formulary or other method or other means by which
such date or dates shall be determined, by reference to an
index or other fact or event ascertainable outside of this
Indenture or otherwise (without regard to any provisions for
redemption, prepayment, acceleration, purchase or
extension);
(e) the rate or rates at which the Securities of such
series, or any Tranche thereof, shall bear interest, if any
(including the rate or rates at which overdue principal
shall bear interest, if different from the rate or rates at
which such Securities shall bear interest prior to Maturity,
and, if applicable, the rate or rates at which overdue
premium or interest shall bear interest, if any), or any
formulary or other method or other means by which such rate
or rates shall be determined, by reference to an index or
other fact or event ascertainable outside of this Indenture
or otherwise; the date or dates from which such interest
shall accrue; the Interest Payment Dates on which such
interest shall be payable and the Regular Record Date, if
any, for the interest payable on such Securities on any
Interest Payment Date; and the basis of computation of
interest, if other than as provided in Section 310;
(f) the place or places at which or methods by which
(1) the principal of and premium, if any, and interest, if
any, on Securities of such series, or any Tranche thereof,
shall be payable, (2) registration of transfer of Securities
of such series, or any Tranche thereof, may be effected, (3)
exchanges of Securities of such series, or any Tranche
thereof, may be effected and (4) notices and demands to or
upon the Company in respect of the Securities of such
series, or any Tranche thereof, and this Indenture may be
served; the Security Registrar and any Paying Agent or
Agents for such series or Tranche; and if such is the case,
that the principal of such Securities shall be payable
without presentment or surrender thereof;
(g) the period or periods within which, or the date or
dates on which, the price or prices at which and the terms
and conditions upon which the Securities of such series, or
any Tranche thereof, may be redeemed, in whole or in part,
at the option of the Company and any restrictions on such
redemptions, including but not limited to a restriction on a
partial redemption by the Company of the Securities of any
series, or any Tranche thereof, resulting in delisting of
such Securities from any national exchange;
(h) the obligation or obligations, if any, of the
Company to redeem or purchase the Securities of such series,
or any Tranche thereof, pursuant to any sinking fund or
other mandatory redemption provisions or at the option of a
Holder thereof and the period or periods within which or the
date or dates on which, the price or prices at which and the
terms and conditions upon which such Securities shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation, and applicable exceptions to the requirements of
Section 404 in the case of mandatory redemption or
redemption at the option of the Holder;
(i) the denominations in which Securities of such
series, or any Tranche thereof, shall be issuable if other
than denominations of $1,000 and any integral multiple
thereof;
(j) the currency or currencies, including composite
currencies, in which payment of the principal of and premi-
um, if any, and interest, if any, on the Securities of such
series, or any Tranche thereof, shall be payable (if other
than in Dollars);
(k) if the principal of or premium, if any, or in-
terest, if any, on the Securities of such series, or any
Tranche thereof, are to be payable, at the election of the
Company or a Holder thereof, in a coin or currency other
than that in which the Securities are stated to be payable,
the period or periods within which, and the terms and
conditions upon which, such election may be made;
(l) if the principal of or premium, if any, or
interest, if any, on the Securities of such series, or any
Tranche thereof, are to be payable, or are to be payable at
the election of the Company or a Holder thereof, in
securities or other property, the type and amount of such
securities or other property, or the formulary or other
method or other means by which such amount shall be
determined, and the period or periods within which, and the
terms and conditions upon which, any such election may be
made;
(m) if the amount payable in respect of principal of
or premium, if any, or interest, if any, on the Securities
of such series, or any Tranche thereof, may be determined
with reference to an index or other fact or event
ascertainable outside of this Indenture, the manner in which
such amounts shall be determined to the extent not
established pursuant to clause (e) of this paragraph;
(n) if other than the principal amount thereof, the
portion of the principal amount of Securities of such
series, or any Tranche thereof, which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant
to Section 802;
(o) any Events of Default, in addition to those
specified in Section 801, with respect to the Securities of
such series, and any covenants of the Company for the
benefit of the Holders of the Securities of such series, or
any Tranche thereof, in addition to those set forth in
Article Six;
(p) the terms, if any, pursuant to which the
Securities of such series, or any Tranche thereof, may be
converted into or exchanged for shares of capital stock or
other securities of the Company or any other Person;
(q) the obligations or instruments, if any, which
shall be considered to be Eligible Obligations in respect of
the Securities of such series, or any Tranche thereof,
denominated in a currency other than Dollars or in a
composite currency, and any additional or alternative
provisions for the reinstatement of the Company's
indebtedness in respect of such Securities after the
satisfaction and discharge thereof as provided in Section
701;
(r) if the Securities of such series, or any Tranche
thereof, are to be issued in global form, (i) any
limitations on the rights of the Holder or Holders of such
Securities to transfer or exchange the same or to obtain the
registration of transfer thereof, (ii) any limitations on
the rights of the Holder or Holders thereof to obtain
certificates therefor in definitive form in lieu of
temporary form and (iii) any and all other matters
incidental to such Securities;
(s) if the Securities of such series, or any Tranche
thereof, are to be issuable as bearer securities, any and
all matters incidental thereto which are not specifically
addressed in a supplemental indenture as contemplated by
clause (g) of Section 1201;
(t) to the extent not established pursuant to clause
(r) of this paragraph, any limitations on the rights of the
Holders of the Securities of such Series, or any Tranche
thereof, to transfer or exchange such Securities or to
obtain the registration of transfer thereof; and if a
service charge will be made for the registration of transfer
or exchange of Securities of such series, or any Tranche
thereof, the amount or terms thereof;
(u) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities
of such series, or any Tranche thereof;
(v) any collateral security, assurance or guarantee
for the Securities of such series; and
(w) any other terms of the Securities of such series,
or any Tranche thereof, not inconsistent with the provisions
of this Indenture.
With respect to Securities of a series subject to a
Periodic Offering, the indenture supplemental hereto or the Board
Resolution which establishes such series, or the Officer's
Certificate pursuant to such supplemental indenture or Board
Resolution, as the case may be, may provide general terms or
parameters for Securities of such series and provide either that
the specific terms of Securities of such series, or any Tranche
thereof, shall be specified in a Company Order or that such terms
shall be determined by the Company or its agents in accordance
with procedures specified in a Company Order as contemplated by
clause (b) of Section 303.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities, or any Tranche
thereof, the Securities of each series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities, or any Tranche
thereof, the Securities shall be executed on behalf of the
Company by an Authorized Officer and may have the corporate seal
of the Company affixed thereto or reproduced thereon and attested
by any other Authorized Officer. The signature of any or all of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures
of individuals who were at the time of execution Authorized
Officers of the Company shall bind the Company, notwithstanding
that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such
Securities.
The Trustee shall authenticate and deliver Securities
of a series, for original issue, at one time or from time to time
in accordance with the Company Order referred to below, upon
receipt by the Trustee of:
(a) the instrument or instruments establishing the
form or forms and terms of such series, as provided in
Sections 201 and 301;
(b) a Company Order requesting the authentication and
delivery of such Securities and to the extent that the terms
of such Securities shall not have been established in an
indenture supplemental hereto or in a Board Resolution, or
in an Officer's Certificate pursuant to a supplemental
indenture or Board Resolution, all as contemplated by
Sections 201 and 301, either (i) establishing such terms or
(ii) in the case of Securities of a series subject to a
Periodic Offering, specifying procedures, acceptable to the
Trustee, by which such terms are to be established (which
procedures may provide, to the extent acceptable to the
Trustee, for authentication and delivery pursuant to oral or
electronic instructions from the Company or any agent or
agents thereof, which oral instructions are to be promptly
confirmed electronically or in writing), in either case in
accordance with the instrument or instruments delivered
pursuant to clause (a) above;
(c) the Securities of such series, executed on behalf
of the Company by an Authorized Officer;
(d) an Opinion of Counsel to the effect that:
(i) the form or forms of such Securities have
been duly authorized by the Company and have been
established in conformity with the provisions of this
Indenture;
(ii) the terms of such Securities have been duly
authorized by the Company and have been established in
conformity with the provisions of this Indenture; and
(iii) such Securities, when authenticated and
delivered by the Trustee and issued and delivered by
the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will have been
duly issued under this Indenture and will constitute
valid and legally binding obligations of the Company,
entitled to the benefits provided by this Indenture,
and enforceable in accordance with their terms,
subject, as to enforcement, to laws relating to or
affecting generally the enforcement of creditors'
rights, including, without limitation, bankruptcy and
insolvency laws and to general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at law);
provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to
receive such Opinion of Counsel only once at or prior to the time
of the first authentication of such Securities (provided that
such Opinion of Counsel addresses the authentication and delivery
of all Securities of such series) and that in lieu of the
opinions described in clauses (ii) and (iii) above Counsel may
opine that:
(x) when the terms of such Securities shall have
been established pursuant to a Company Order or Orders
or pursuant to such procedures (acceptable to the
Trustee) as may be specified from time to time by a
Company Order or Orders, all as contemplated by and in
accordance with the instrument or instruments delivered
pursuant to clause (a) above, such terms will have been
duly authorized by the Company and will have been
established in conformity with the provisions of this
Indenture; and
(y) such Securities, when authenticated and
delivered by the Trustee in accordance with this
Indenture and the Company Order or Orders or specified
procedures referred to in paragraph (x) above and
issued and delivered by the Company in the manner and
subject to any conditions specified in such Opinion of
Counsel, will have been duly issued under this Inden-
ture and will constitute valid and legally binding
obligations of the Company, entitled to the benefits
provided by the Indenture, and enforceable in
accordance with their terms, subject, as to
enforcement, to laws relating to or affecting generally
the enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency laws and
to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in
equity or at law).
With respect to Securities of a series subject to a
Periodic Offering, the Trustee may conclusively rely, as to the
authorization by the Company of any of such Securities, the form
and terms thereof and the legality, validity, binding effect and
enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 201 and 301 and this
Section, as applicable, at or prior to the time of the first
authentication of Securities of such series unless and until such
opinion or other documents have been superseded or revoked or
expire by their terms. In connection with the authentication and
delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume that the
Company's instructions to authenticate and deliver such
Securities do not violate any rules, regulations or orders of any
Governmental Authority having jurisdiction over the Company.
If the form or terms of the Securities of any series
have been established by or pursuant to a Board Resolution or an
Officer's Certificate as permitted by Sections 201 or 301, the
Trustee shall not be required to authenticate such Securities if
the issuance of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
Unless otherwise specified as contemplated by Section
301 with respect to any series of Securities, or any Tranche
thereof, each Security shall be dated the date of its
authentication.
Unless otherwise specified as contemplated by Section
301 with respect to any series of Securities, or any Tranche
thereof, no Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication sub-
stantially in the form provided for herein executed by the
Trustee or an Authenticating Agent by manual signature, and such
certificate upon any Security shall be conclusive evidence, and
the only evidence, that such Security has been duly authenticated
and delivered hereunder and is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder to the Company,
or any Person acting on its behalf, but shall never have been
issued and sold by the Company, and the Company shall deliver
such Security to the Security Registrar for cancellation as
provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by
an Officer's Certificate and an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any
series, or any Tranche thereof, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the defi-
nitive Securities in lieu of which they are issued, with such
appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities;
provided, however, that temporary Securities need not recite
specific redemption, sinking fund, conversion or exchange
provisions.
Unless otherwise specified as contemplated by Section
301 with respect to the Securities of any series, or any Tranche
thereof, after the preparation of definitive Securities of such
series or Tranche, the temporary Securities of such series or
Tranche shall be exchangeable, without charge to the Holder
thereof, for definitive Securities of such series or Tranche upon
surrender of such temporary Securities at the office or agency of
the Company maintained pursuant to Section 602 in a Place of
Payment for such Securities. Upon such surrender of temporary
Securities, the Company shall, except as aforesaid, execute and
the Trustee shall authenticate and deliver in exchange therefor
definitive Securities of the same series and Tranche, of
authorized denominations and of like tenor and aggregate
principal amount.
Until exchanged in full as hereinabove provided,
temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of
the same series and Tranche and of like tenor authenticated and
delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE.
The Company shall cause to be kept in each office
designated pursuant to Section 602, with respect to the
Securities of each series or any Tranche thereof, a register (all
registers kept in accordance with this Section being collectively
referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities of such series or
Tranche and the registration of transfer thereof. The Company
shall designate one Person to maintain the Security Register for
the Securities of each series on a consolidated basis, and such
Person is referred to herein, with respect to such series, as the
"Security Registrar." Anything herein to the contrary
notwithstanding, the Company may designate one or more of its
offices as an office in which a register with respect to the
Securities of one or more series, or any Tranche or Tranches
thereof, shall be maintained, and the Company may designate
itself the Security Registrar with respect to one or more of such
series. The Security Register shall be open for inspection by
the Trustee and the Company at all reasonable times.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or any
Tranche thereof, upon surrender for registration of transfer of
any Security of such series or Tranche at the office or agency of
the Company maintained pursuant to Section 602 in a Place of
Payment for such series or Tranche, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new
Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by
Section 301 with respect to the Securities of any series, or any
Tranche thereof, any Security of such series or Tranche may be
exchanged at the option of the Holder, for one or more new
Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount,
upon surrender of the Securities to be exchanged at any such
office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities delivered upon any registration of
transfer or exchange of Securities shall be valid obligations of
the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange shall (if so required by
the Company, the Trustee or the Security Registrar) be duly
endorsed or shall be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Trustee or the
Security Registrar, as the case may be, duly executed by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section
301 with respect to Securities of any series, or any Tranche
thereof, no service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other govern-
mental charge that may be imposed in connection with any regis-
tration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 406 or 1206 not involving any
transfer.
The Company shall not be required to execute or to
provide for the registration of transfer of or the exchange of
(a) Securities of any series, or any Tranche thereof, during a
period of 15 days immediately preceding the date notice is to be
given identifying the serial numbers of the Securities of such
series or Tranche called for redemption or (b) any Security so
selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of
the same series and Tranche, and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the
Trustee (a) evidence to their satisfaction of the ownership of
and the destruction, loss or theft of any Security and (b) such
security or indemnity as may be reasonably required by them to
save each of them and any agent of either of them harmless, then,
in the absence of notice to the Company or the Trustee that such
Security is held by a Person purporting to be the owner of such
Security, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and Tranche,
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, in case any such
mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in relation thereto and any other reasonable expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to
this Section in lieu of any destroyed, lost or stolen Security
shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone other than
the Holder of such new Security, and any such new Security shall
be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series
duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section
301 with respect to the Securities of any series, or any Tranche
thereof, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the related
Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Secu-
rities of such series (or their respective Predecessor
Securities) are registered at the close of business on a
date (herein called a "Special Record Date") for the payment
of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be
paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such De-
faulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the
Company, shall promptly cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at the address of such
Holder as it appears in the Security Register, not less than
10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date.
(b) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to the due presentment of a Security for
registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name
such Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of and
premium, if any, and (subject to Sections 305 and 307) interest,
if any, on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. CANCELLATION BY SECURITY REGISTRAR.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any
Person other than the Security Registrar, be delivered to the
Security Registrar and, if not theretofore canceled, shall be
promptly canceled by the Security Registrar. The Company may at
any time deliver to the Security Registrar for cancellation any
Securities previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever or which
the Company shall not have issued and sold, and all Securities so
delivered shall be promptly canceled by the Security Registrar.
No Securities shall be authenticated in lieu of or in exchange
for any Securities canceled as provided in this Section, except
as expressly permitted by this Indenture. All canceled
Securities held by the Security Registrar shall be disposed of in
accordance with the customary procedures of the Security
Registrar as at the time of disposition shall be in effect, and
the Security Registrar shall promptly deliver a certificate of
disposition to the Trustee and the Company unless, by a Company
Order delivered to the Security Registrar and the Trustee, the
Company shall direct that canceled Securities be returned to it.
The Security Registrar shall promptly deliver evidence of any
cancellation of a Security in accordance with this Section 309 to
the Trustee and the Company.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, or any Tranche thereof,
interest on the Securities of each series shall be computed on
the basis of a 360-day year consisting of twelve 30-day months
and for any period shorter than a full month, on the basis of the
actual number of days elapsed in such period.
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of the Securities of any series, or any
Tranche thereof, denominated in any currency other than Dollars
or in a composite currency (the "Required Currency"), except as
otherwise specified with respect to such Securities as
contemplated by Section 301, the obligation of the Company to
make any payment of the principal thereof, or the premium, if
any, or interest, if any, thereon, shall not be discharged or
satisfied by any tender by the Company, or recovery by the
Trustee, in any currency other than the Required Currency, except
to the extent that such tender or recovery shall result in the
Trustee timely holding the full amount of the Required Currency
then due and payable. If any such tender or recovery is in a
currency other than the Required Currency, the Trustee may take
such actions as it considers appropriate to exchange such
currency for the Required Currency. The costs and risks of any
such exchange, including without limitation the risks of delay
and exchange rate fluctuation, shall be borne by the Company, the
Company shall remain fully liable for any shortfall or
delinquency in the full amount of Required Currency then due and
payable, and in no circumstances shall the Trustee be liable
therefor except in the case of its negligence or willful
misconduct.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series, or any Tranche thereof, which
are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified
as contemplated by Section 301 for Securities of such series or
Tranche) in accordance with this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities
shall be evidenced by a Board Resolution or an Officer's
Certificate. The Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of
such Securities to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere
in this Indenture or (b) pursuant to an election of the Company
which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Offi-
cer's Certificate evidencing compliance with such restriction or
condition.
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series, or any
Tranche thereof, are to be redeemed, the particular Securities to
be redeemed shall be selected by the Security Registrar from the
Outstanding Securities of such series or Tranche not previously
called for redemption, by such method as shall be provided for
any particular series or Tranche, or, in the absence of any such
provision, by such method as the Security Registrar shall deem
fair and appropriate and which may, in any case, provide for the
selection for redemption of portions (equal to the minimum
authorized denomination for Securities of such series or Tranche
or any integral multiple thereof) of the principal amount of
Securities of such series or Tranche of a denomination larger
than the minimum authorized denomination for Securities of such
series or Tranche; provided, however, that if, as indicated in an
Officer's Certificate, the Company shall have offered to purchase
all or any principal amount of the Securities then Outstanding of
any series, or any Tranche thereof, and less than all of such
Securities as to which such offer was made shall have been
tendered to the Company for such purchase, the Security
Registrar, if so directed by Company Order, shall select for
redemption all or any principal amount of such Securities which
have not been so tendered.
The Security Registrar shall promptly notify the
Company and the Trustee in writing of the Securities selected for
redemption and, in the case of any Securities selected to be
redeemed in part, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed
or to be redeemed only in part, to the portion of the principal
amount of such Securities which has been or is to be redeemed.
SECTION 404. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner pro-
vided in Section 106 to the Holders of the Securities to be
redeemed not less than 30 nor more than 60 days prior to the
Redemption Date.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, or any Tranche thereof,
all notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price, or the formula pursuant to
which the Redemption Price is to be determined if the
Redemption Price cannot be determined at the time the notice
is given,
(c) if less than all the Securities of any series or
Tranche are to be redeemed, the identification of the
particular Securities to be redeemed and the portion of the
principal amount of any Security to be redeemed in part,
(d) that on the Redemption Date the Redemption Price,
together with accrued interest, if any, to the Redemption
Date, will become due and payable upon each such Security to
be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(e) the place or places where such Securities are to
be surrendered for payment of the Redemption Price and
accrued interest, if any, unless it shall have been
specified as contemplated by Section 301 with respect to
such Securities that such surrender shall not be required,
(f) that the redemption is for a sinking or other
fund, if such is the case,
(g) the CUSIP numbers, if any, assigned to such
Securities; provided however, that such notice may state
that no representation is made as to the correctness of
CUSIP numbers, and the redemption of such Securities shall
not be affected by any defect in or omission of such
numbers, and
(h) such other matters as the Company shall deem
desirable or appropriate.
Unless otherwise specified with respect to any
Securities in accordance with Section 301, with respect to any
notice of redemption of Securities at the election of the
Company, unless, upon the giving of such notice, such Securities
shall be deemed to have been paid in accordance with Section 701,
such notice may state that such redemption shall be conditional
upon the receipt by the Paying Agent or Agents for such
Securities, on or prior to the date fixed for such redemption, of
money sufficient to pay the principal of and premium, if any, and
interest, if any, on such Securities and that if such money shall
not have been so received such notice shall be of no force or
effect and the Company shall not be required to redeem such
Securities. In the event that such notice of redemption contains
such a condition and such money is not so received, the
redemption shall not be made and within a reasonable time
thereafter notice shall be given, in the manner in which the
notice of redemption was given, that such money was not so
received and such redemption was not required to be made, and the
Paying Agent or Agents for the Securities otherwise to have been
redeemed shall promptly return to the Holders thereof any of such
Securities which had been surrendered for payment upon such
redemption.
Notice of redemption of Securities to be redeemed at
the election of the Company, and any notice of non-satisfaction
of a condition for redemption as aforesaid, shall be given by the
Company or, at the Company's request, by the Security Registrar
in the name and at the expense of the Company. Notice of
mandatory redemption of Securities shall be given by the Security
Registrar in the name and at the expense of the Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid,
and the conditions, if any, set forth in such notice having been
satisfied, the Securities or portions thereof so to be redeemed
shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date
(unless, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price
and accrued interest, if any) such Securities or portions
thereof, if interest-bearing, shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with
such notice, such Security or portion thereof shall be paid by
the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided, however, that
no such surrender shall be a condition to such payment if so
specified as contemplated by Section 301 with respect to such
Security; and provided, further, that except as otherwise
specified as contemplated by Section 301 with respect to such
Security, any installment of interest on any Security the Stated
Maturity of which installment is on or prior to the Redemption
Date shall be payable to the Holder of such Security, or one or
more Predecessor Securities, registered as such at the close of
business on the related Regular Record Date according to the
terms of such Security and subject to the provisions of Section
307.
SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to be
redeemed only in part at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or
his attorney duly authorized in writing), the Company shall
execute, and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge, a new Security
or Securities of the same series and Tranche, of any authorized
denomination requested by such Holder and of like tenor and in
aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered.
ARTICLE FIVE
SINKING FUNDS
SECTION 501. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to
any sinking fund for the retirement of the Securities of any
series, or any Tranche thereof, except as otherwise specified as
contemplated by Section 301 for Securities of such series or
Tranche.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series, or any Tranche
thereof, is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series, or any
Tranche thereof, is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any
series, or any Tranche thereof, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section
502. Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of
which it was made as provided for by the terms of such
Securities.
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
The Company (a) may deliver to the Trustee Outstanding
Securities (other than any previously called for redemption) of a
series or Tranche in respect of which a mandatory sinking fund
payment is to be made and (b) may apply as a credit Securities of
such series or Tranche which have been (i) redeemed either at the
election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities or (ii)
repurchased by the Company in the open market, by tender offer or
otherwise, in each case in satisfaction of all or any part of
such mandatory sinking fund payment; provided, however, that no
Securities shall be applied in satisfaction of a mandatory
sinking fund payment if such Securities shall have been
previously so applied. Securities so applied shall be received
and credited for such purpose by the Trustee at the Redemption
Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory
sinking fund payment shall be reduced accordingly.
SECTION 503. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund
payment date for the Securities of any series, or any Tranche
thereof, the Company shall deliver to the Trustee an Officer's
Certificate specifying:
(a) the amount of the next succeeding mandatory
sinking fund payment for such series or Tranche;
(b) the amount, if any, of the optional sinking fund
payment to be made together with such mandatory sinking fund
payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking
fund payment which is to be satisfied by the payment of
cash; and
(e) the portion, if any, of such aggregate sinking
fund payment which is to be satisfied by delivering and
crediting Securities of such series or Tranche pursuant to
Section 502 and stating the basis for such credit and that
such Securities have not previously been so credited, and
the Company shall also deliver to the Trustee not later than
45 days prior to such sinking fund payment date, any
Securities to be so delivered.
If the Company shall not deliver such Officer's Certificate,
the next succeeding sinking fund payment for such series or
Tranche shall be made entirely in cash in the amount of the man-
datory sinking fund payment. Not less than 40 days before each
such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in
the manner specified in Section 403 and cause notice of the
redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 404. Such
notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in
Sections 405 and 406.
ARTICLE SIX
COVENANTS
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall pay the principal of and premium, if
any, and interest, if any, on the Securities of each series in
accordance with the terms of such Securities and this Indenture.
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for
the Securities of each series, or any Tranche thereof, an office
or agency where payment of such Securities shall be made, where
the registration of transfer or exchange of such Securities may
be effected and where notices and demands to or upon the Company
in respect of such Securities and this Indenture may be served.
The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of each such office
or agency and prompt notice to the Holders of any such change in
the manner specified in Section 106. If at any time the Company
shall fail to maintain any such required office or agency in
respect of Securities of any series, or any Tranche thereof, or
shall fail to furnish the Trustee with the address thereof,
payment of such Securities shall be made, registration of
transfer or exchange thereof may be effected and notices and
demands in respect thereof may be served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the
Trustee as its agent for all such purposes in any such event.
The Company may also from time to time designate one or
more other offices or agencies with respect to the Securities of
one or more series, or any Tranche thereof, for any or all of the
foregoing purposes and may from time to time rescind such
designations; provided, however, that, unless otherwise specified
as contemplated by Section 301 with respect to the Securities of
such series or Tranche, no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain
an office or agency for such purposes in each Place of Payment
for such Securities in accordance with the requirements set forth
above. The Company shall give prompt written notice to the
Trustee, and prompt notice to the Holders in the manner specified
in Section 106, of any such designation or rescission and of any
change in the location of any such other office or agency.
Anything herein to the contrary notwithstanding, any
office or agency required by this Section may be maintained at an
office of the Company, in which event the Company shall perform
all functions to be performed at such office or agency.
SECTION 603. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying
Agent with respect to the Securities of any series, or any
Tranche thereof, it shall, on or before each due date of the
principal of and premium, if any, and interest, if any, on any of
such Securities, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the
principal and premium or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided. The Company shall promptly notify the Trustee of any
failure by the Company (or any other obligor on such Securities)
to make any payment of principal of or premium, if any, or
interest, if any, on such Securities.
Whenever the Company shall have one or more Paying
Agents for the Securities of any series, or any Tranche thereof,
it shall, on or before each due date of the principal of and
premium, if any, and interest, if any, on such Securities,
deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so
becoming due, such sums to be held in trust for the benefit of
the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company shall
promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the
Securities of any series, or any Tranche thereof, other than the
Company or the Trustee, to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such
Paying Agent shall:
(a) hold all sums held by it for the payment of the
principal of and premium, if any, or interest, if any, on
such Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the
Company (or any other obligor upon such Securities) to make
any payment of principal of or premium, if any, or interest,
if any, on such Securities; and
(c) at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent and furnish to the Trustee such information as it
possesses regarding the names and addresses of the Persons
entitled to such sums.
The Company may at any time pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent and, if so stated
in a Company Order delivered to the Trustee, in accordance with
the provisions of Article Seven; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal of and premium, if any, or interest, if any, on any
Security and remaining unclaimed for two years after such
principal and premium, if any, or interest, if any, has become
due and payable shall be paid to the Company on Company Request,
or, if then held by the Company, shall be discharged from such
trust; and, upon such payment or discharge, the Holder of such
Security shall, as an unsecured general creditor and not as a
Holder of an Outstanding Security, look only to the Company for
payment of the amount so due and payable and remaining unpaid,
and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make
any such payment to the Company, may at the expense of the
Company cause to be mailed, on one occasion only, notice to such
Holder that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the
date of such mailing, any unclaimed balance of such money then
remaining will be paid to the Company.
SECTION 604. CORPORATE EXISTENCE.
Subject to the rights of the Company under Article
Eleven, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its
corporate existence.
SECTION 605. MAINTENANCE OF PROPERTIES.
The Company shall cause (or, with respect to property
owned in common with others, make reasonable effort to cause) all
its properties used or useful in the conduct of its business to
be maintained and kept in good condition, repair and working
order and shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) to be made
all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the Company, may
be necessary so that the business carried on in connection
therewith may be properly conducted; provided, however, that
nothing in this Section shall prevent the Company from
discontinuing, or causing the discontinuance of, the operation
and maintenance of any of its properties if such discontinuance
is, in the judgment of the Company, desirable in the conduct of
its business.
SECTION 606. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
Not later than July 1 in each year, commencing July 1,
____, the Company shall deliver to the Trustee an Officer's
Certificate which need not comply with Section 102, executed by
the principal executive officer, the principal financial officer
or the principal accounting officer of the Company, as to such
officer's knowledge of the Company's compliance with all
conditions and covenants under this Indenture, such compliance to
be determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION 607. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to
comply with any term, provision or condition set forth in (a)
Section 602 or any additional covenant or restriction specified
with respect to the Securities of any series, or any Tranche
thereof, as contemplated by Section 301 if before the time for
such compliance the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series and Tranches
with respect to which compliance with Section 602 or such
additional covenant or restriction is to be omitted, considered
as one class, shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with
such term, provision or condition and (b) Section 604, 605 or
Article Eleven if before the time for such compliance the Holders
of a majority in principal amount of Securities Outstanding under
this Indenture shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with
such term, provision or condition; but, in the case of (a) or
(b), no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of
the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and
effect.
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of the
principal amount thereof, shall be deemed to have been paid for
all purposes of this Indenture, and the entire indebtedness of
the Company in respect thereof shall be deemed to have been
satisfied and discharged, if there shall have been irrevocably
deposited with the Trustee or any Paying Agent (other than the
Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the
Maturity of such Securities or portions thereof, Eligible
Obligations, which shall not contain provisions permitting
the redemption or other prepayment thereof at the option of
the issuer thereof, the principal of and the interest on
which when due, without any regard to reinvestment thereof,
will provide moneys which, together with the money, if any,
deposited with or held by the Trustee or such Paying Agent,
shall be sufficient, or
(c) a combination of (a) or (b) which shall be
sufficient,
to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such Securities or
portions thereof on or prior to Maturity; provided, however, that
in the case of the provision for payment or redemption of less
than all the Securities of any series or Tranche, such Securities
or portions thereof shall have been selected by the Security
Registrar as provided herein and, in the case of a redemption,
the notice requisite to the validity of such redemption shall
have been given or irrevocable authority shall have been given by
the Company to the Trustee to give such notice, under
arrangements satisfactory to the Trustee; and provided, further,
that the Company shall have delivered to the Trustee and such
Paying Agent:
(x) if such deposit shall have been made prior to
the Maturity of such Securities, a Company Order
stating that the money and Eligible Obligations
deposited in accordance with this Section shall be held
in trust, as provided in Section 703;
(y) if Eligible Obligations shall have been
deposited, an Opinion of Counsel that the obligations
so deposited constitute Eligible Obligations and do not
contain provisions permitting the redemption or other
prepayment at the option of the issuer thereof, and an
opinion of an independent public accountant of
nationally recognized standing, selected by the Com-
pany, to the effect that the requirements set forth in
clause (b) above have been satisfied; and
(z) if such deposit shall have been made prior to
the Maturity of such Securities, an Officer's
Certificate stating the Company's intention that, upon
delivery of such Officer's Certificate, its
indebtedness in respect of such Securities or portions
thereof will have been satisfied and discharged as
contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or
both, in accordance with this Section, together with the
documents required by clauses (x), (y) and (z) above, the Trustee
shall, upon receipt of a Company Request, acknowledge in writing
that the Security or Securities or portions thereof with respect
to which such deposit was made are deemed to have been paid for
all purposes of this Indenture and that the entire indebtedness
of the Company in respect thereof has been satisfied and
discharged as contemplated in this Section. In the event that
all of the conditions set forth in the preceding paragraph shall
have been satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's Certificate
specified in clause (z) shall not have been delivered, such
Securities or portions thereof shall nevertheless be deemed to
have been paid for all purposes of this Indenture, and the
Holders of such Securities or portions thereof shall nevertheless
be no longer entitled to the benefits of this Indenture or of any
of the covenants of the Company under Article Six (except the
covenants contained in Sections 602, 603 and 604) or any other
covenants made in respect of such Securities or portions thereof
as contemplated by Section 301, but the indebtedness of the
Company in respect of such Securities or portions thereof shall
not be deemed to have been satisfied and discharged prior to
Maturity for any other purpose, and the Holders of such
Securities or portions thereof shall continue to be entitled to
look to the Company for payment of the indebtedness represented
thereby; and, upon Company Request, the Trustee shall acknowledge
in writing that such Securities or portions thereof are deemed to
have been paid for all purposes of this Indenture.
If payment at Stated Maturity of less than all of the
Securities of any series, or any Tranche thereof, is to be
provided for in the manner and with the effect provided in this
Section, the Security Registrar shall select such Securities, or
portions of principal amount thereof, in the manner specified by
Section 403 for selection for redemption of less than all the
Securities of a series or Tranche.
In the event that Securities which shall be deemed to
have been paid for purposes of this Indenture, and, if such is
the case, in respect of which the Company's indebtedness shall
have been satisfied and discharged, all as provided in this
Section do not mature and are not to be redeemed within the 60
day period commencing with the date of the deposit of moneys or
Eligible Obligations, as aforesaid, the Company shall, as
promptly as practicable, give a notice, in the same manner as a
notice of redemption with respect to such Securities, to the
Holders of such Securities to the effect that such deposit has
been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to
have been paid for purposes of this Indenture, as aforesaid, the
obligations of the Company and the Trustee in respect of such
Securities under Sections 304, 305, 306, 403, 404, 406, 503 (as
to notice of redemption), 602, 603, 907, 909, 910 and 915 and
this Article Seven shall survive.
The Company shall pay, and shall indemnify the Trustee
or any Paying Agent with which Eligible Obligations shall have
been deposited as provided in this Section against, any tax, fee
or other charge imposed on or assessed against such Eligible
Obligations or the principal or interest received in respect of
such Eligible Obligations, including, but not limited to, any
such tax payable by any entity deemed, for tax purposes, to have
been created as a result of such deposit.
Anything herein to the contrary notwithstanding, (a)
if, at any time after a Security would be deemed to have been
paid for purposes of this Indenture, and, if such is the case,
the Company's indebtedness in respect thereof would be deemed to
have been satisfied or discharged, pursuant to this Section
(without regard to the provisions of this paragraph), the Trustee
or any Paying Agent, as the case may be, shall be required to
return the money or Eligible Obligations, or combination thereof,
deposited with it as aforesaid to the Company or its
representative under any applicable Federal or State bankruptcy,
insolvency or other similar law, such Security shall thereupon be
deemed retroactively not to have been paid and any satisfaction
and discharge of the Company's indebtedness in respect thereof
shall retroactively be deemed not to have been effected, and such
Security shall be deemed to remain Outstanding and (b) any
satisfaction and discharge of the Company's indebtedness in
respect of any Security shall be subject to the provisions of the
last paragraph of Section 603.
SECTION 702. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be
of further effect (except as hereinafter expressly provided), and
the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture, when
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company;
provided, however, that if, in accordance with the last paragraph
of Section 701, any Security, previously deemed to have been paid
for purposes of this Indenture, shall be deemed retroactively not
to have been so paid, this Indenture shall thereupon be deemed
retroactively not to have been satisfied and discharged, as
aforesaid, and to remain in full force and effect, and the
Company shall execute and deliver such instruments as the Trustee
shall reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company and the
Trustee under Sections 304, 305, 306, 403, 404, 406, 503 (as to
notice of redemption), 602, 603, 907, 909, 910 and 915 and this
Article Seven shall survive.
Upon satisfaction and discharge of this Indenture as
provided in this Section, the Trustee shall assign, transfer and
turn over to the Company, subject to the lien provided by Section
907, any and all money, securities and other property then held
by the Trustee for the benefit of the Holders of the Securities
other than money and Eligible Obligations held by the Trustee
pursuant to Section 703.
SECTION 703. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money deposit-
ed pursuant to Section 701, nor the principal or interest
payments on any such Eligible Obligations, shall be withdrawn or
used for any purpose other than, and such Eligible Obligations
and money deposited and the principal and interest payments on
any such Eligible Obligations shall be held in trust for, the
payment of the principal of and premium, if any, and interest, if
any, on the Securities or portions of principal amount thereof in
respect of which such deposit was made, all subject, however, to
the provisions of Section 603; provided, however, that, so long
as there shall not have occurred and be continuing an Event of
Default, any cash received from such principal or interest
payments on such Eligible Obligations, if not then needed for
such purpose, shall, to the extent practicable, be invested in
Eligible Obligations of the type described in clause (b) in the
first paragraph of Section 701 maturing at such times and in such
amounts as shall be sufficient to pay when due the principal of
and premium, if any, and interest, if any, due and to become due
on such Securities or portions thereof on and prior to the
Maturity thereof, and interest earned from such reinvestment
shall be paid over to the Company as received, free and clear of
any trust, lien or pledge under this Indenture except the lien
provided by Section 907; and provided, further, that, so long as
there shall not have occurred and be continuing an Event of
Default, any moneys held in accordance with this Section on the
Maturity of all such Securities in excess of the amount required
to pay the principal of and premium, if any, and interest, if
any, then due on such Securities shall be paid over to the
Company free and clear of any trust, lien or pledge under this
Indenture except the lien provided by Section 907; and provided,
further, that if an Event of Default shall have occurred and be
continuing, moneys to be paid over to the Company pursuant to
this Section shall be held until such Event of Default shall have
been waived or cured.
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
SECTION 801. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect
to Securities of any series, means any one of the following
events:
(a) failure to pay interest, if any, on any Security
of such series within 30 days after the same becomes due and
payable; or
(b) failure to pay the principal of or premium, if
any, on any Security of such series at its Maturity; or
(c) failure to perform, or breach of, any covenant or
warranty of the Company in this Indenture (other than a
covenant or warranty a default in the performance of which
or breach of which is elsewhere in this Section specifically
dealt with or which has expressly been included in this
Indenture solely for the benefit of one or more series of
Securities other than such series) for a period of 90 days
after there has been given, by registered or certified mail,
to the Company by the Trustee, or to the Company and the
Trustee by the Holders of at least 33% in principal amount
of the Outstanding Securities of such series, a written
notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of
Default" hereunder, unless the Trustee, or the Trustee and
the Holders of a principal amount of Securities of such
series not less than the principal amount of Securities the
Holders of which gave such notice, as the case may be, shall
agree in writing to an extension of such period prior to its
expiration; provided, however, that the Trustee, or the
Trustee and the Holders of such principal amount of
Securities of such series, as the case may be, shall be
deemed to have agreed to an extension of such period if
corrective action is initiated by the Company within such
period and is being diligently pursued; or
(d) the entry by a court having jurisdiction in the
premises of (1) a decree or order for relief in respect of
the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (2) a decree or order
adjudging the Company a bankrupt or insolvent, or approving
as properly filed a petition by one or more Persons other
than the Company seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official for the Company or
for any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and any such
decree or order for relief or any such other decree or order
shall have remained unstayed and in effect for a period of
90 consecutive days; or
(e) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of
a decree or order for relief in respect of the Company in a
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition
or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to
the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the
Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors,
or the admission by it in writing of its inability to pay
its debts generally as they become due, or the authorization
of such action by the Board of Directors; or
(f) any other Event of Default specified with respect
to Securities of such series.
SECTION 802. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default applicable to the Securities of
one or more series, but not applicable to all Outstanding
Securities, shall have occurred and be continuing, either the
Trustee or the Holders of not less than 33% in aggregate
principal amount of the Securities of each such series may then
declare the principal amount of all Securities of such series
(or, if any of the Securities of such series are Discount
Securities, such portion of the principal amount of such
Securities as may be specified in the terms thereof as
contemplated by Section 301) and interest accrued thereon to be
due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and, upon
receipt by the Company of notice of such declaration of
acceleration, such principal amount (or specified amount) and
interest accrued thereon shall become immediately due and
payable. If an Event of Default applicable to all Outstanding
Securities shall have occurred and be continuing, either the
Trustee or the Holders of not less than 33% in principal amount
of all Securities then Outstanding (considered as one class), and
not the Holders of the Securities of any one of such series, may
declare the principal of all Securities (or, if any of the
Securities of such series are Discount Securities, such portion
of the principal amount of such Securities as may be specified in
the terms thereof as contemplated by Section 301) and interest
accrued thereon to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders),
and, upon receipt by the Company of notice of such declaration of
acceleration, such principal amount (or specified amount) and
interest accrued thereon shall become immediately due and
payable.
At any time after such a declaration of acceleration
with respect to Securities of any series shall have been made and
before a judgment or decree for payment of the money due shall
have been obtained by the Trustee as hereinafter in this Article
provided, the Event or Events of Default giving rise to such
declaration of acceleration shall, without further act, be deemed
to have been waived, and such declaration and its consequences
shall, without further act, be deemed to have been rescinded and
annulled, if
(a) the Company shall have paid or deposited with the
Trustee a sum sufficient to pay
(1) all overdue interest on all Securities of
such series;
(2) the principal of and premium, if any, on any
Securities of such series which have become due
otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed
therefor in such Securities;
(3) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate
or rates prescribed therefor in such Securities;
(4) all amounts due to the Trustee under Section
907;
and
(b) any other Event or Events of Default with respect
to Securities of such series, other than the non-payment of
the principal of Securities of such series which shall have
become due solely by such declaration of acceleration, shall
have been cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default
or impair any right consequent thereon.
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
If an Event of Default described in clause (a) or (b)
of Section 801 shall have occurred and be continuing, the Company
shall, upon demand of the Trustee, pay to it, for the benefit of
the Holders of the Securities of the series with respect to which
such Event of Default shall have occurred, the whole amount then
due and payable on such Securities for principal and premium, if
any, and interest, if any, and, to the extent permitted by law,
interest on premium, if any, and on any overdue principal and in-
terest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as
shall be sufficient to cover any amounts due to the Trustee under
Section 907.
If the Company shall fail to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of
an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such
proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and
collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any
other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of
any series shall have occurred and be continuing, the Trustee may
in its discretion proceed to protect and enforce its rights and
the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 804. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the
property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of
the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment
of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest, if any, owing and
unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim
for amounts due to the Trustee under Section 907) and of the
Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights
of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 805. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or
the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of
the Holders in respect of which such judgment has been recovered.
SECTION 806. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this
Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of
such money on account of principal or premium, if any, or
interest, if any, upon presentation of the Securities in respect
of which or for the benefit of which such money shall have been
collected and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 907;
SECOND: To the payment of the amounts then due and un-
paid upon the Securities for principal of and premium, if
any, and interest, if any, in respect of which or for the
benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal,
premium, if any, and interest, if any, respectively; and
THIRD: To the Company.
SECTION 807. LIMITATION ON SUITS.
No Holder shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(a) such Holder shall have previously given written
notice to the Trustee of a continuing Event of Default with
respect to the Securities of such series;
(b) the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series in
respect of which an Event of Default shall have occurred and
be continuing, considered as one class, shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(c) such Holder or Holders shall have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity shall have failed to
institute any such proceeding; and
(e) no direction inconsistent with such written
request shall have been given to the Trustee during such 60-
day period by the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series
in respect of which an Event of Default shall have occurred
and be continuing, considered as one class;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders or
to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 808. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is
absolute and unconditional, to receive payment of the principal
of and premium, if any, and (subject to Section 307) interest, if
any, on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any
such payment, and such rights shall not be impaired without the
consent of such Holder.
SECTION 809. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture
and such proceeding shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to the
Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, and Trustee
and such Holder shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and
remedies of the Trustee and such Holder shall continue as though
no such proceeding had been instituted.
SECTION 810. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 811. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every
right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 812. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and be
continuing in respect of a series of Securities, the Holders of a
majority in principal amount of the Outstanding Securities of
such series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series; provided,
however, that if an Event of Default shall have occurred and be
continuing with respect to more than one series of Securities,
the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all such series, considered as one
class, shall have the right to make such direction, and not the
Holders of the Securities of any one of such series; and
provided, further, that
(a) such direction shall not be in conflict with any
rule of law or with this Indenture, and could not involve
the Trustee in personal liability in circumstances where
indemnity would not, in the Trustee's sole discretion, be
adequate, and
(b) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
SECTION 813. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders
of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences,
except a default
(a) in the payment of the principal of or premium, if
any, or interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which
under Section 1202 cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease to
exist, and any and all Events of Default arising therefrom shall
be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 814. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder by
his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant
in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted
by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in aggregate principal amount of the
Outstanding Securities of all series in respect of which such
suit may be brought, considered as one class, or to any suit
instituted by any Holder for the enforcement of the payment of
the principal of or premium, if any, or interest, if any, on any
Security on or after the Stated Maturity or Maturities expressed
in such Security (or, in the case of redemption, on or after the
Redemption Date).
SECTION 815. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or
the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE NINE
THE TRUSTEE
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of
Default with respect to Securities of any series,
(i) the Trustee undertakes to perform, with
respect to Securities of such series, such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee;
and
(ii) in the absence of bad faith on its part, the
Trustee may, with respect to Securities of such series,
conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions
which by any provisions hereof are specifically
required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default with respect to
Securities of any series, shall have occurred and be continuing,
the Trustee shall exercise, with respect to the Securities of
such series, such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their
exercise, 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 Indenture shall be construed
to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this subsection shall not be construed to
limit the effect of subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible
Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) the 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 principal amount of the
Outstanding Securities of any one or more series, as
provided herein, relating to the time, method and place
of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with
respect to the Securities of such series; and
(iv) no provision of this Indenture shall require
the 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 it shall
have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section.
SECTION 902. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default hereunder
with respect to the Securities of any series to the Holders of
Securities of such series in the manner and to the extent
required to do so by the Trust Indenture Act, unless such default
shall have been cured or waived; provided, however, that in the
case of any default of the character specified in Section 801(c),
no such notice to Holders shall be given until at least 45 days
after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or
lapse of time, or both, would become, an Event of Default.
SECTION 903. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 901 and to the
applicable provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be 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
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request
or Company Order, or as otherwise expressly provided herein,
and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel of its
selection and the written advice of such counsel or any
Opinion of Counsel 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
thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any Holder pursuant
to this Indenture, unless such Holder shall have offered to
the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the 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 Trustee, in its discretion, may
make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it
shall (subject to applicable legal requirements) be entitled
to examine, during normal business hours, the books, records
and premises of the Company, personally or by agent or
attorney;
(g) the 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
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;
(h) except as otherwise provided in Section 801, the
Trustee shall not be charged with knowledge of any Event of
Default with respect to the Securities of any series for
which it is acting as Trustee unless either (1) a
Responsible Officer of the Trustee shall have actual
knowledge of the Event of Default or (2) written notice of
such Event of Default shall have been given to the Trustee
by the Company, any other obligor on such Securities or by
any Holder of such Securities;
(i) the 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
Indenture; and
(j) the rights, privileges, protections, immunities
and benefits given to the Trustee, including, without
limitation, its right to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its
capacities hereunder.
SECTI ON 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities
(except the Trustee's certificates of authentication) shall be
taken as the statements of the Company, and neither the Trustee
nor any Authenticating Agent assumes responsibility for their
correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 905. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any
Paying Agent, any Security Registrar or any other agent of the
Company or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities and, subject to
Sections 908 and 913, may otherwise deal with the Company with
the same rights it would have if it were not the Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
SECTION 906. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not
be segregated from other funds, except to the extent required by
law. The Trustee shall be under no liability for interest on or
investment of any money received by it hereunder except as
expressly provided herein or otherwise agreed with, and for the
sole benefit of, the Company.
SECTION 907. COMPENSATION AND REIMBURSEMENT.
The Company shall
(a) pay to the Trustee from time to time such
compensation for all services rendered by it hereunder as
the Company and the Trustee shall from time to time agree in
writing (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,
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably incurred or
made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel),
except to the extent that any such expense, disbursement or
advance may be attributable to the Trustee's negligence,
wilful misconduct or bad faith; and
(c) indemnify the Trustee and hold it harmless from
and against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the
trust or trusts hereunder or the performance of its duties
hereunder, 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, except to the extent any such loss, liability or
expense may be attributable to its negligence, wilful
misconduct or bad faith.
As security for the performance of the obligations of
the Company under this Section, the Trustee shall have a lien
prior to the Securities upon all property and funds held or
collected by the Trustee as such other than property and funds
held in trust under Section 703 (except as otherwise provided in
Section 703). "Trustee" for purposes of this Section shall
include any predecessor Trustee; provided, however, that the
negligence, wilful misconduct or bad faith of any Trustee
hereunder shall not affect the rights of any other Trustee
hereunder.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 801(d)
or Section 801(e), the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration
under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section 907 shall survive the
termination of this Indenture.
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting
interest within the meaning of the Trust Indenture Act, it shall
either eliminate such conflicting interest or resign to the
extent, in the manner and with the effect, and subject to the
conditions, provided in the Trust Indenture Act and this
Indenture. For purposes of Section 310(b)(1) of the Trust
Indenture Act and to the extent permitted thereby, the Trustee,
in its capacity as trustee in respect of the Securities of any
series, shall not be deemed to have a conflicting interest
arising from its capacity as trustee in respect of the Securities
of any other series.
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which
shall be
(a) a Corporation organized and doing business under
the laws of the United States, any State or Territory
thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State authority, or
(b) if and to the extent permitted by the Commission
by rule, regulation or order upon application, a Corporation
or other Person organized and doing business under the laws
of a foreign government, authorized under such laws to
exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000 or the Dollar equivalent
of the applicable foreign currency and subject to
supervision or examination by authority of such foreign
government or a political subdivision thereof substantially
equivalent to supervision or examination applicable to
United States institutional trustees,
and, in either case, qualified and eligible under this Article
and the Trust Indenture Act. If such Corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of such supervising or examining authority, then for
the purposes of this Section, 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. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 910. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements
of Section 911.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written notice
thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 911 shall not have been
delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the Holders of
a majority in principal amount of the Outstanding Securities of
such series delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 908
after written request therefor by the Company or by any
Holder who has been a bona fide Holder for at least six
months, or
(2) the Trustee shall cease to be eligible under
Section 909 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of re-
habilitation, conservation or liquidation,
then, in any such case, (x) the Company by a Board Resolution may
remove the Trustee with respect to all Securities or (y) subject
to Section 814, any Holder who has been a bona fide Holder for at
least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause (other than as contemplated
in clause (y) in subsection (d) of this Section), with
respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with
the applicable requirements of Section 911. If, within one
year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect
to the Securities of any series shall be appointed by Act of
the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements
of Section 911, become the successor Trustee with respect to
the Securities of such series and to that extent supersede
the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on
behalf of itself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such
series.
(f) So long as no event which is, or after notice or
lapse of time, or both, would become, an Event of Default
shall have occurred and be continuing, and except with
respect to a Trustee appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities
pursuant to subsection (e) of this Section, if the Company
shall have delivered to the Trustee (i) a Board Resolution
appointing a successor Trustee, effective as of a date
specified therein, and (ii) an instrument of acceptance of
such appointment, effective as of such date, by such
successor Trustee in accordance with Section 911, the
Trustee shall be deemed to have resigned as contemplated in
subsection (b) of this Section, the successor Trustee shall
be deemed to have been appointed by the Company pursuant to
subsection (e) of this Section and such appointment shall be
deemed to have been accepted as contemplated in Section 911,
all as of such date, and all other provisions of this
Section and Section 911 shall be applicable to such
resignation, appointment and acceptance except to the extent
inconsistent with this subsection (f).
(g) The Company (or, should the Company fail so to act
promptly, the successor trustee at the expense of the
Company) shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with
respect to the Securities of any series by mailing written
notice of such event by first-class mail, postage prepaid,
to all Holders of Securities of such series as their names
and addresses appear in the Security Register. Each notice
shall include the name of the successor Trustee with respect
to the Securities of such series and the address of its
corporate trust office.
SECTION 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of all
series, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee,
without any further act, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee,
such retiring Trustee shall, upon payment of all sums owed
to it, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of
the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of one or
more (but not all) series, the Company, the retiring Trustee
and each successor Trustee with respect to the Securities of
such series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-
trustees of the same trust and that each such Trustee shall
be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent pro-
vided therein and each such successor Trustee, without any
further act, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which
the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such
retiring Trustee, upon payment of all sums owed to it, shall
duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any instruments which fully vest in
and confirm to such successor Trustee all such rights,
powers and trusts referred to in subsection (a) or (b) of
this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any Corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
Corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such Corporation shall be otherwise
qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of
the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver
the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the
Company or any other obligor upon the Securities (other than by
reason of a relationship described in Section 311(b) of the Trust
Indenture Act), the Trustee shall be subject to any and all
applicable provisions of the Trust Indenture Act regarding the
collection of claims against the Company or such other obligor.
For purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any transaction
in which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in currency
or in checks or other orders drawn upon banks or bankers and
payable upon demand;
(b) the term "self-liquidating paper" means any draft,
bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company or such obligor for the
purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession of,
or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares
or merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the
creation of the creditor relationship with the Company or such
obligor arising from the making, drawing, negotiating or
incurring of the draft, bill of exchange, acceptance or
obligation.
SECTION 914. CO-TRUSTEES AND SEPARATE TRUSTEES.
At any time or times, for the purpose of meeting the
legal requirements of any applicable jurisdiction, the Company
and the Trustee shall have power to appoint, and, upon the
written request of the Trustee or of the Holders of at least 33%
in principal amount of the Securities then Outstanding, the
Company shall for such purpose join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by
the Trustee either to act as co-trustee, jointly with the
Trustee, or to act as separate trustee, in either case with such
powers as may be provided in the instrument of appointment, and
to vest in such Person or Persons, in the capacity aforesaid, any
property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Company
does not join in such appointment within 15 days after the
receipt by it of a request so to do, or if an Event of Default
shall have occurred and be continuing, the Trustee alone shall
have power to make such appointment.
Should any written instrument or instruments from the
Company be required by any co-trustee or separate trustee so
appointed to more fully confirm to such co-trustee or separate
trustee such property, title, right or power, any and all such
instruments shall, on request, be executed, acknowledged and
delivered by the Company.
Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed
subject to the following conditions:
(a) the Securities shall be authenticated and
delivered, and all rights, powers, duties and obligations
hereunder in respect of the custody of securities, cash and
other personal property held by, or required to be deposited
or pledged with, the Trustee hereunder, shall be exercised
solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any
property covered by such appointment shall be conferred or
imposed upon and exercised or performed either by the
Trustee or by the Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to
the extent that under any law of any jurisdiction in which
any particular act is to be performed, the Trustee shall be
incompetent or unqualified to perform such act, in which
event such rights, powers, duties and obligations shall be
exercised and performed by such co-trustee or separate
trustee;
(c) the Trustee at any time, by an instrument in
writing executed by it, with the concurrence of the Company,
may accept the resignation of or remove any co-trustee or
separate trustee appointed under this Section, and, if an
Event of Default shall have occurred and be continuing, the
Trustee shall have power to accept the resignation of, or
remove, any such co-trustee or separate trustee without the
concurrence of the Company. Upon the written request of the
Trustee, the Company shall join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee
so resigned or removed may be appointed in the manner
provided in this Section;
(d) no co-trustee or separate trustee hereunder shall
be personally liable by reason of any act or omission of the
Trustee, or any other such trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall
be deemed to have been delivered to each such co-trustee and
separate trustee.
SECTION 915. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or
Agents with respect to the Securities of one or more series, or
any Tranche thereof, which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series or
Tranche issued upon original issuance, exchange, registration of
transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a Corporation
organized and doing business under the laws of the United States,
any State or Territory thereof or the District of Columbia or the
Commonwealth of Puerto Rico, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any Corporation into which an Authenticating Agent may
be merged or converted or with which it may be consolidated, or
any Corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any Corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such Corporation
shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the Company.
The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be
acceptable to the Company. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested
with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under
this Section.
The provisions of Sections 308, 904 and 905 shall be
applicable to each Authenticating Agent.
If an appointment with respect to the Securities of one
or more series, or any Tranche thereof, shall be made pursuant to
this Section, the Securities of such series or Tranche may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication
substantially in the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
The Bank of New York
As Trustee
By:
----------------------------
As Authenticating Agent
By:
----------------------------
Authorized Signatory
If all of the Securities of a series may not be
originally issued at one time, and if the Trustee does not have
an office capable of authenticating Securities upon original
issuance located in a Place of Payment where the Company wishes
to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing
(which writing need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel), shall appoint, in
accordance with this Section and in accordance with such
procedures as shall be acceptable to the Trustee, an
Authenticating Agent having an office in a Place of Payment
designated by the Company with respect to such series of
Securities.
ARTICLE TEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 1001. LISTS OF HOLDERS.
Semiannually, not later than January 1 and July 1 in
each year, commencing _________ 1, ____, and at such other times
as the Trustee may request in writing, the Company shall furnish
or cause to be furnished to the Trustee information as to the
names and addresses of the Holders, and the Trustee shall
preserve such information and similar information received by it
in any other capacity and afford to the Holders access to
information so preserved by it, all to such extent, if any, and
in such manner as shall be required by the Trust Indenture Act;
provided, however, that no such list need be furnished so long as
the Trustee shall be the Security Registrar.
SECTION 1002. REPORTS BY TRUSTEE AND COMPANY.
Not later than July 15 in each year, commencing
July 15, ____, the Trustee shall transmit to the Holders, the
Commission and each securities exchange upon which any Securities
are listed, a report, dated as of the next preceding May 15, with
respect to any events and other matters described in Section
313(a) of the Trust Indenture Act, in such manner and to the
extent required by the Trust Indenture Act. The Trustee shall
transmit to the Holders, the Commission and each securities
exchange upon which any Securities are listed, and the Company
shall file with the Trustee (within 30 days after filing with the
Commission in the case of reports which pursuant to the Trust
Indenture Act must be filed with the Commission and furnished to
the Trustee) and transmit to the Holders, such other information,
reports and other documents, if any, at such times and in such
manner, as shall be required by the Trust Indenture Act. The
Company shall notify the Trustee of the listing of any Securities
on any securities exchange or of the delisting thereof.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER
SECTION 1101. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
The Company shall not consolidate with or merge into
any other entity, or convey or otherwise transfer or lease its
properties and assets substantially as an entirety to any Person,
unless
(a) the entity formed by such consolidation or into
which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be
a Person organized and existing under the laws of the United
States, any State thereof or the District of Columbia, and
shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the
principal of and premium, if any, and interest, if any, on
all Outstanding Securities and the performance of every
covenant of this Indenture on the part of the Company to be
performed or observed;
(b) immediately after giving effect to such trans-
action, no Event of Default and no event which, after notice
or lapse of time or both, would become an Event of Default,
shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, or
other transfer or lease and such supplemental indenture
comply with this Article and that all conditions precedent
herein provided for relating to such transactions have been
complied with.
SECTION 1102. SUCCESSOR ENTITY SUBSTITUTED.
Upon any consolidation by the Company with or merger by
the Company into any other entity or any conveyance, or other
transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 1101, the
successor entity formed by such consolidation or into which the
Company is merged or the Person to which such conveyance,
transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter, except in
the case of a lease, the predecessor Person shall be relieved of
all obligations and covenants under this Indenture and the
Securities Outstanding hereunder.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders, the Company and the
Trustee, at any time and from time to time, may enter into one or
more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities, all
as provided in Article Eleven; or
(b) to add one or more covenants of the Company or
other provisions for the benefit of all Holders or for the
benefit of the Holders of, or to remain in effect only so
long as there shall be Outstanding, Securities of one or
more specified series, or one or more specified Tranches
thereof, or to surrender any right or power herein conferred
upon the Company; or
(c) to add any additional Events of Default with
respect to all or any series of Securities Outstanding
hereunder; or
(d) to change or eliminate any provision of this In-
denture or to add any new provision to this Indenture;
provided, however, that if such change, elimination or
addition shall adversely affect the interests of the Holders
of Securities of any series or Tranche Outstanding on the
date of such indenture supplemental hereto in any material
respect, such change, elimination or addition shall become
effective (i) with respect to such series or Tranche only
pursuant to the provisions of Section 1202 hereof or (ii)
when no Security of such series or Tranche remains
Outstanding; or
(e) to provide collateral security for all but not
part of the Securities; or
(f) to establish the form or terms of Securities of
any series or Tranche as contemplated by Sections 201 and
301; or
(g) to provide for the authentication and delivery of
bearer securities and coupons appertaining thereto
representing interest, if any, thereon and for the
procedures for the registration, exchange and replacement
thereof and for the giving of notice to, and the
solicitation of the vote or consent of, the holders thereof,
and for any and all other matters incidental thereto; or
(h) to evidence and provide for the acceptance of
appointment hereunder by a separate or successor Trustee
with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 911(b); or
(i) to provide for the procedures required to permit
the Company to utilize, at its option, a non-certificated
system of registration for all, or any series or Tranche of,
the Securities; or
(j) to change any place or places where (1) the
principal of and premium, if any, and interest, if any, on
all or any series of Securities, or any Tranche thereof,
shall be payable, (2) all or any series of Securities, or
any Tranche thereof, may be surrendered for registration of
transfer, (3) all or any series of Securities, or any
Tranche thereof, may be surrendered for exchange and (4)
notices and demands to or upon the Company in respect of all
or any series of Securities, or any Tranche thereof, and
this Indenture may be served; or
(k) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent
with any other provision herein, or to make any other
changes to the provisions hereof or to add other provisions
with respect to matters or questions arising under this
Indenture, provided that such other changes or additions
shall not adversely affect the interests of the Holders of
Securities of any series or Tranche in any material respect.
Without limiting the generality of the foregoing, if
the Trust Indenture Act as in effect at the date of the execution
and delivery of this Indenture or at any time thereafter shall be
amended and
(x) if any such amendment shall require one or
more changes to any provisions hereof or the inclusion
herein of any additional provisions, or shall by
operation of law be deemed to effect such changes or
incorporate such provisions by reference or otherwise,
this Indenture shall be deemed to have been amended so
as to conform to such amendment to the Trust Indenture
Act, and the Company and the Trustee may, without the
consent of any Holders, enter into an indenture
supplemental hereto to effect or evidence such changes
or additional provisions; or
(y) if any such amendment shall permit one or
more changes to, or the elimination of, any provisions
hereof which, at the date of the execution and delivery
hereof or at any time thereafter, are required by the
Trust Indenture Act to be contained herein, this
Indenture shall be deemed to have been amended to
effect such changes or elimination, and the Company and
the Trustee may, without the consent of any Holders,
enter into an indenture supplemental hereto to evidence
such amendment hereof.
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of a majority in
aggregate principal amount of the Securities of all series then
Outstanding under this Indenture, considered as one class, by Act
of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to, or changing in any
manner or eliminating any of the provisions of, this Indenture or
modifying in any manner the rights of the Holders of Securities
of such series under the Indenture; provided, however, that if
there shall be Securities of more than one series Outstanding
hereunder and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more,
but less than all, of such series, then the consent only of the
Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series so directly affected,
considered as one class, shall be required; and provided,
further, that if the Securities of any series shall have been
issued in more than one Tranche and if the proposed supplemental
indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such Tranches,
then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all Tranches so
directly affected, considered as one class, shall be required;
and provided, further, that no such supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or the rate
of interest thereon (or the amount of any installment of
interest thereon) or change the method of calculating such
rate or reduce any premium payable upon the redemption
thereof, or reduce the amount of the principal of a Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section
802, or change the coin or currency (or other property), in
which any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated
Maturity of any Security (or, in the case of redemption, on
or after the Redemption Date), without, in any such case,
the consent of the Holder of such Security, or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series or any Tranche thereof,
the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of
which is required for any waiver of compliance with any
provision of this Indenture or of any default hereunder and
its consequences, or reduce the requirements of Section 1304
for quorum or voting, without, in any such case, the consent
of the Holders of each Outstanding Security of such series
or Tranche, or
(c) modify any of the provisions of this Section,
Section 607 or Section 813 with respect to the Securities of
any series, or any Tranche thereof, or except to increase
the percentages in principal amount referred to in this
Section or such other Sections or to provide that other
provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding
Security affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section, or the
deletion of this proviso, in accordance with the
requirements of Sections 911(b), 914 and 1201(h).
A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or more
particular series of Securities, or of one or more Tranches
thereof, or which modifies the rights of the Holders of
Securities of such series or Tranches with respect to such
covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of any
other series or Tranche.
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof. A waiver by a Holder of
such Holder's right to consent under this Section shall be deemed
to be a consent of such Holder.
SECTION 1203. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article
or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject
to Section 901) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's
own rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under
this Article this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. Any supplemental indenture permitted by
this Article may restate this Indenture in its entirety, and,
upon the execution and delivery thereof, any such restatement
shall supersede this Indenture as theretofore in effect for all
purposes.
SECTION 1205. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture
Act as then in effect.
SECTION 1206. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES.
Securities of any series, or any Tranche thereof,
authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of
any series, or any Tranche thereof, so modified as to conform, in
the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series or Tranche.
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
If the terms of any particular series of Securities
shall have been established in a Board Resolution or an Officer's
Certificate pursuant to a Board Resolution as contemplated by
Section 301, and not in an indenture supplemental hereto,
additions to, changes in or the elimination of any of such terms
may be effected by means of a supplemental Board Resolution or
Officer's Certificate, as the case may be, delivered to, and
accepted in writing by, the Trustee; provided, however, that such
supplemental Board Resolution or Officer's Certificate shall not
be accepted by the Trustee or otherwise be effective unless all
conditions set forth in this Indenture which would be required to
be satisfied if such additions, changes or elimination were
contained in a supplemental indenture shall have been
appropriately satisfied. Upon the acceptance thereof by the
Trustee, any such supplemental Board Resolution or Officer's
Certificate shall be deemed to be a "supplemental indenture" for
purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or more, or
all, series, or any Tranche or Tranches thereof, may be called at
any time and from time to time pursuant to this Article to make,
give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be made, given or taken by Holders of Securities of
such series or Tranches.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of
Holders of Securities of one or more, or all, series, or any
Tranche or Tranches thereof, for any purpose specified in
Section 1301, to be held at such time and at such place in
the Borough of Manhattan, The City of New York, as the
Trustee shall determine, or, with the approval of the
Company, at any other place. Notice of every such meeting,
setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section
106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) If the Trustee shall have been requested to call a
meeting of the Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, by the Company
or by the Holders of 33% in aggregate principal amount of
all of such series and Tranches, considered as one class,
for any purpose specified in Section 1301, by written
request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall
not have given the notice of such meeting within 21 days
after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series
and Tranches in the amount above specified, as the case may
be, may determine the time and the place in the Borough of
Manhattan, The City of New York, or in such other place as
shall be determined or approved by the Company, for such
meeting and may call such meeting for such purposes by
giving notice thereof as provided in subsection (a) of this
Section.
(c) Any meeting of Holders of Securities of one or
more, or all, series, or any Tranche or Tranches thereof,
shall be valid without notice if the Holders of all
Outstanding Securities of such series or Tranches are
present in person or by proxy and if representatives of the
Company and the Trustee are present, or if notice is waived
in writing before or after the meeting by the Holders of all
Outstanding Securities of such series, or any Tranche or
Tranches thereof, or by such of them as are not present at
the meeting in person or by proxy, and by the Company and
the Trustee.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of
Securities of one or more, or all, series, or any Tranche or
Tranches thereof, a Person shall be (a) a Holder of one or more
Outstanding Securities of such series or Tranches, or (b) a
Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such
series or Tranches by such Holder or Holders. The only Persons
who shall be entitled to attend any meeting of Holders of
Securities of any series or Tranche shall be the Persons entitled
to vote at such meeting and their counsel, any representatives of
the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1304. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which a meeting shall have been called
as hereinbefore provided, considered as one class, shall
constitute a quorum for a meeting of Holders of Securities of
such series and Tranches; provided, however, that if any action
is to be taken at such meeting which this Indenture expressly
provides may be taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the
Outstanding Securities of such series and Tranches, considered as
one class, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series
and Tranches, considered as one class, shall constitute a quorum.
In the absence of a quorum within one hour of the time appointed
for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and Tranches, be
dissolved. In any other case the meeting may be adjourned for
such period as may be determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for such period as may be determined by the
chairman of the meeting prior to the adjournment of such
adjourned meeting. Except as provided by Section 1305(e), notice
of the reconvening of any meeting adjourned for more than 30 days
shall be given as provided in Section 1302(a) not less than 10
days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series and
Tranches which shall constitute a quorum.
Except as limited by Section 1202, any resolution pre-
sented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted only by the
affirmative vote of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which such meeting shall have been
called, considered as one class; provided, however, that, except
as so limited, any resolution with respect to any action which
this Indenture expressly provides may be taken by the Holders of
a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, may be adopted at a meeting or
an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding
Securities of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting
of Holders of Securities duly held in accordance with this
Section shall be binding on all the Holders of Securities of the
series and Tranches with respect to which such meeting shall have
been held, whether or not present or represented at the meeting.
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING
RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Securities
may be in person or by proxy; and, to the extent permitted
by law, any such proxy shall remain in effect and be binding
upon any future Holder of the Securities with respect to
which it was given unless and until specifically revoked by
the Holder or future Holder of such Securities before being
voted.
(b) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations
as it may deem advisable for any meeting of Holders of
Securities in regard to proof of the holding of such
Securities and of the appointment of proxies and in regard
to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by
any such regulations, the holding of Securities shall be
proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner
specified in Section 104. Such regulations may provide that
written instruments appointing proxies, regular on their
face, may be presumed valid and genuine without the proof
specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the
meeting shall have been called by the Company or by Holders
as provided in Section 1302(b), in which case the Company or
the Holders of Securities of the series and Tranches calling
the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote
of the Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of all series
and Tranches represented at the meeting, considered as one
class.
(d) At any meeting each Holder or proxy shall be
entitled to one vote for each $1 principal amount of
Securities held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote,
except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302
at which a quorum is present may be adjourned from time to
time by Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of all series
and Tranches represented at the meeting, considered as one
class; and the meeting may be held as so adjourned without
further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting
of Holders shall be by written ballots on which shall be
subscribed the signatures of the Holders or of their
representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities, of the series and Tranches
with respect to which the meeting shall have been called, held or
represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and
file with the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record of the
proceedings of each meeting of Holders shall be prepared by the
secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as
provided in Section 1302 and, if applicable, Section 1304. Each
copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy
shall be delivered to the Company, and another to the Trustee to
be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein
stated.
SECTION 1307. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request, demand,
authorization, direction, notice, consent, waiver or other action
may be made, given or taken by Holders by written instruments as
provided in Section 104.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1401. LIABILITY SOLELY CORPORATE.
Unless otherwise provided as contemplated by Section
301, no recourse shall be had for the payment of the principal of
or premium, if any, or interest, if any, on any Securities, or
any part thereof, or for any claim based thereon or otherwise in
respect thereof, or of the indebtedness represented thereby, or
upon any obligation, covenant or agreement under this Indenture,
against any incorporator, stockholder, officer or director, as
such, past, present or future of the Company or of any
predecessor or successor Corporation (either directly or through
the Company or a predecessor or successor Corporation), whether
by virtue of any constitutional provision, statute or rule of
law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly agreed and understood that this
Indenture and all the Securities are solely corporate
obligations, and that, except as otherwise provided as
contemplated by Section 301, no personal liability whatsoever
shall attach to, or be incurred by, any incorporator,
stockholder, officer or director, past, present or future, of the
Company or of any predecessor or successor Corporation, either
directly or indirectly through the Company or any predecessor or
successor Corporation, because of the indebtedness hereby
authorized or under or by reason of any of the obligations,
covenants or agreements contained in this Indenture or in any of
the Securities or to be implied herefrom or therefrom, and that
any such personal liability is hereby expressly waived and
released as a condition of, and as part of the consideration for,
the execution of this Indenture and the issuance of the
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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above
written.
FPL GROUP CAPITAL INC
By:
--------------------------
<PAGE>
THE BANK OF NEW YORK, TRUSTEE
By:
--------------------------
EXHIBIT 4(B)
FPL GROUP CAPITAL INC
OFFICER'S CERTIFICATE
, THE OF FPL
----------- ---------------------------------
Group Capital Inc (the "Company"), Pursuant to the authority
Granted in the accompanying Board Resolutions (all capitalized
(terms used herein which are not defined herein but are defined
in the Indenture referred to below, shall have the meanings
specified in the Indenture), and Sections 201 and 301 of the
Indenture, does hereby certify to The Bank of New York (the
"Trustee"), As Trustee under the Indenture of the Company
(For Unsecured Debt Securities) dated as of 1, 1998 (the
--------
"Indenture") that:
1. The Securities of the First Series to be issued under the
Indenture shall be designated " % due "
----- ------------ ----
(the "Debentures of the First Series"), and shall be issued
in substantially the form set forth in Exhibit A hereto;
2. The Debentures of the First Series shall be limited in
aggregate principal amount to $ at any time
-----------
Outstanding, except as contemplated in Section 301(b) of the
Indenture;
3. The Debentures of the First Series shall mature and the
principal shall be due and payable together with all accrued
and unpaid interest thereon , ;
------- ----
4. The Debentures of the First Series shall bear interest as
provided in the form thereof set forth in Exhibit A hereto;
5. Each installment of interest on a Debenture of the First
Series shall be payable as provided in the form thereof set
forth as Exhibit A hereof;
6. Registration and registration of transfers and exchanges in
respect of the Debentures of the First Series may be effected
at the office or agency of the Company in The City of New
York. Notices and demands to or upon the Company in respect
of the Debenutures of the First Series may be served at the
office or agency of the Company in The City of New York.
The Corporate Trust Office of the Trustee will initially be
the agency of the Company for such payment, registration and
registration of transfers and exchanges and service of notices
and demands and the Company hereby appoints the Trustee as its
agent for all such purposes; provided, however, that the
Company reserves the right to change, by one or more Officer's
Certificates, any such office or agency and such agent. The
Trustee will be the Security Registrar and the Paying Agent
for the Debentures of the First Series;
7. [If and when the Debentures of the First Series cease to be
held solely in global form, registered in the name of the
Depository Trust Company, as depository, or its nominee, then
the Regular Record Date for the interest payable on any given
Interest Payment Date with respect to the Debentures of the
First Series shall be the 15th day prior to such Interest
Payment Date;]
8. [Redemption provisions will be inserted here]
9. [The Debentures of the First Series will be initially issued
in global form registered in the name of Cede & Co. (as
nominee for The Depository Trust Company ("DTC"), New York,
New York). The Debentures of the First Series in global
form shall bear the depository legend in substantially the
form set forth in Exhibit A hereto. The Debentures of the
First Series in global form will contain restrictions on
transfer, substantially as described in the form set forth
in Exhibit A hereto;]
10. No service charge shall be made for the registration of
transfer or exchange of the Debentures of the First Series;
provided, however, that the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with the exchange or
transfer;
11. If the Company shall make any deposit of money and/or
Eligible Obligations with respect to any Debentures of the
First Series, or any portion of the principal amount
thereof, as contemplated by Section 701 of the Indenture,
the Company shall not deliver an Officer's Certificate
described in clause (z) in the first paragraph of said
Section 701 unless the Company shall also deliver to the
Trustee, together with such Officer's Certificate, either:
(A) an instrument wherein the Company, notwithstanding
the satisfaction and discharge of its indebtedness in
respect of the Debentures of the First Series, shall assume
the obligation (which shall be absolute and unconditional)
to irrevocably deposit with the Trustee or Paying Agent such
additional sums of money, if any, or additional Eligible
Obligations (meeting the requirements of Section 701), if
any, or any combination thereof, at such time or times, as
shall be necessary, together with the money and/or Eligible
Obligations theretofore so deposited, to pay when due the
principal of and premium, if any, and interest due and to
become due on such Debentures of the First Series or
portions thereof, all in accordance with and subject to the
provisions of said Section 701; provided, however, that such
instrument may state that the obligation of the Company to
make additional deposits as aforesaid shall be subject to
the delivery to the Company by the Trustee of a notice
asserting the deficiency accompanied by an opinion of an
independent public accountant of nationally recognized
standing, selected by the Trustee, showing the calculation
thereof; or
(B) an Opinion of Counsel to the effect that, as a
result of a change in law occurring after the date of this
certificate, the Holders of such Debentures of the First
Series, or portions of the principal amount thereof, will
not recognize income, gain or loss for United States federal
income tax purposes as a result of the satisfaction and
discharge of the Company's indebtedness in respect thereof
and will be subject to United States federal income tax on
the same amounts, at the same times and in the same manner
as if such satisfaction and discharge had not been effected;
12. With respect to the Debentures of the First Series, each of
the following events shall be an Event of Default under the
Indenture:
(A) the failure of the Guarantee Agreement ("Guarantee
Agreement"), dated as of , 1998, between FPL
-----------
Group, Inc. (as Guarantor) (the "Guarantor") and The Bank of
New York (as Guarantee Trustee), to be in full force and
effect;
(B) the consolidation of the Guarantor with or merger
of the Guarantor into any other Person, or the conveyance or
other transfer or lease by the Guarantor of its properties
and assets substantially as an entirety to any Person,
unless
(a) the Person formed by such consolidation or
into which the Guarantor is merged or the Person which
acquires by conveyance or transfer, or which leases,
the properties and assets of the Guarantor substan-
tially as an entirety shall be a Person organized and
existing under the laws of the United States, any State
thereof or the District of Columbia, and shall
expressly assume the obligations of the Guarantor under
the Guarantee Agreement; and
(b) immediately after giving effect to such
transaction, no Event of Default (as defined in the
Guarantee Agreement) and no event which, after notice
or lapse of time or both, would become an Event of
Default (as defined in the Guarantee Agreement), shall
have occurred and be continuing.
13. The Debentures of the First Series shall have such other
terms and provisions as are provided in the form set forth
in Exhibit A hereto;
14. The undersigned has read all of the covenants and conditions
contained in the Indenture relating to the issuance of the
Debentures of the First Series and the definitions in the
Indenture relating thereto and in respect of which this
certificate is made;
15. The statements contained in this certificate are based upon
the familiarity of the undersigned with the Indenture, the
documents accompanying this certificate, and upon
discussions by the undersigned with officers and employees
of the Company familiar with the matters set forth herein;
16. In the opinion of the undersigned, he has made such
examination or investigation as is necessary to enable him
to express an informed opinion whether or not such covenants
and conditions have been complied with; and
17. In the opinion of the undersigned, such conditions and
covenants and conditions precedent, if any (including any
covenants compliance with which constitutes a condition
precedent) to the authentication and delivery of the
Debentures of the First Series requested in the accompanying
Company Order have been complied with.
IN WITNESS WHEREOF, I have executed this Officer's
Certificate this day of , 1998.
---- ----------
------------------------------
<PAGE>
EXHIBIT A
[DEPOSITORY LEGEND]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.]
No. Cusip No.
--------------- ----------
[FORM OF FACE OF DEBENTURE]
FPL GROUP CAPITAL INC
% DEBENTURES DUE
----- ----
FPL GROUP CAPITAL INC, a corporation duly organized and
existing under the laws of the State of Florida (herein referred
to as the "Company", which term includes any successor Person
under the Indenture), for value received, hereby promises to pay
to
or registered assigns, the principal sum of
--------------------
Dollars on 1, , and to pay interest on said principal
-------- ----
sum semi-annually on 1 and 1 of each year (each an
------- ----
"Interest Payment Date") at the rate of % per annum until
-----
the principal hereof is paid or made available for payment.
Interest on the Securities of this series will accrue from
, to the first Interest Payment Date, and
----------------
thereafter will accrue from the last Interest Payment Date to
which interest has been paid or duly provided for. In the event
that any Interest Payment Date is not a Business Day, then
payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest
or other payment in respect of such delay) with the same force
and effect as if made on the Interest Payment Date. The interest
so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be
paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
the th day of the calendar month next preceding such Interest
--
Payment Date (the "Regular Record Date"). Any such interest not
so punctually paid or duly provided for will forthwith cease to
be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to Holders of Securities of this series not less
than 10 days prior to such Special Record Date, or be paid at any
time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities
of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the
Indenture referred to on the reverse hereof.
Payment of the principal of (and premium, if any) and
interest on this Security will be made at the office or agency of
the Company maintained for that purpose in The City of New York,
the State of New York in such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public and private debts, provided, however, that, at
the option of the Company, interest on this Security may be paid
by check mailed to the address of the person entitled thereto, as
such address shall appear on the Security Register.
Reference is hereby made to the further provisions of
this Security set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
FPL GROUP CAPITAL INC
By:
--------------------------------
ATTEST:
----------------------------
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
The Bank of New York, as Trustee
By:
--------------------------------
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF DEBENTURE]
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Indenture
(for Unsecured Debt Securities), dated as of 1, 1998
-------
(herein, together with any amendments thereto, called the
"Indenture", which term shall have the meaning assigned to it in
such instrument), between the Company and The Bank of New York,
as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), and reference is hereby
made to the Indenture, including the Board Resolutions and
Officer's Certificate filed with the Trustee on , 1998
------- --
creating the series designated on the face hereof, for a
statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof,
limited in aggregate principal amount to $ .
-----------
[Redemption provisions will be inserted here]
The Indenture contains provisions for defeasance at any
time of the entire indebtedness of this Security upon compliance
with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of all series to be affected.
The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right
to institute any proceeding with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of a
majority in aggregate principal amount of the Securities of all
series at the time Outstanding in respect of which an Event of
Default shall have occurred and be continuing shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in aggregate principal
amount of Securities of all series at the time Outstanding in
respect of which an Event of Default shall have occurred and be
continuing a direction inconsistent with such request, and shall
have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or
currency, herein prescribed.
The Securities of this series are issuable only in
registered form without coupons in denominations of $1,000 and
integral multiples thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor and of
authorized denominations, as requested by the Holder surrendering
the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security
is registered as the absolute owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
The Holder of this Security will be entitled to the
benefit of a Guarantee Agreement between FPL Group, Inc., as
guarantor, and The Bank of New York, as Guarantee Trustee,
delivered to the Trustee on the date of original issuance of
Securities of this series. Notwithstanding any provision in the
Support Agreement, dated as of December 18, 1985, between the
Company and FPL Group, Inc., as from time to time in effect (the
"Support Agreement"), no Holder of this Security shall be
entitled to enforce the covenants and agreements contained in the
Support Agreement with respect to this Security and no Holder of
this Security shall have any rights to consent or object to any
amendment, modification, waiver, forbearance or termination of
the Support Agreement.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
EXHIBIT 4(c)
GUARANTEE AGREEMENT
Between
FPL Group, Inc.
(as Guarantor)
and
The Bank of New York
(as Guarantee Trustee)
dated as of
________ __, 1998
<PAGE>
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 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
<PAGE>
6.02 Subsidiary . . . . . . . . . . . . . . . . . . . . 13
6.03 Usurious Interest . . . . . . . . . . . . . . . . . 13
6.04 Successors and Assigns . . . . . . . . . . . . . . 13
6.05 Notices . . . . . . . . . . . . . . . . . . . . . . 14
6.06 Benefit . . . . . . . . . . . . . . . . . . . . . . 15
<PAGE>
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.
<PAGE>
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.
<PAGE>
"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.
<PAGE>
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
<PAGE>
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 March 1, 1987 of FPL 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
<PAGE>
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
<PAGE>
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;
<PAGE>
(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
<PAGE>
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
<PAGE>
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.
<PAGE>
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
<PAGE>
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 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 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,
<PAGE>
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
<PAGE>
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,
<PAGE>
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.
700 Universe Boulevard
Juno Beach, Florida 33408
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
700 Universe Boulevard
Juno Beach, Florida 33408
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
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 Debt
Securities:
<PAGE>
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 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:
Exhibit 5(a)
Steel Hector & Davis LLP
1900 Phillips Point West
777 South Flagler Drive
West Palm Beach, Florida 33401
September 29, 1998
FPL Group, Inc.
FPL Group Capital Inc
700 Universe Boulevard
Juno Beach, Florida 33408
Ladies and Gentlemen:
As counsel for FPL Group, Inc., a Florida corporation ("FPL
Group"), and FPL Group Capital Inc, a Florida corporation (the
"Company"), we have participated in the preparation and filing of
a registration statement on Form S-3 to be filed with the
Securities and Exchange Commission under the Securities Act of
1933, as amended, on or about the date hereof (the "Registration
Statement") in connection with the proposed offering of up to $625
million in principal amount of the Company's unsecured debt
securities (the "Debentures") and FPL Group's Guarantee relating
thereto (the "Guarantee"). In connection therewith, we have
reviewed such documents and records as we have deemed necessary
to enable us to express an opinion on the matters covered
thereby.
Based on the foregoing, we are of the opinion that the
Debentures and the Guarantee, when the Debentures are sold as
contemplated by the Registration Statement, will be valid, legal
and binding obligations of the Company and FPL Group,
respectively, except as such may later be limited by bankruptcy,
insolvency or other laws affecting mortgagees' and other
creditors' rights generally and limitations on the availability
of equitable remedies.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement. We also consent to the reference
to us in the Prospectus included in the Registration Statement
under the captions "Experts" and "Legal Opinions".
We are members of the Florida Bar and this opinion is limited
to the laws of Florida and the federal laws of the United States.
As to all matters of New York law, we have relied, with your
consent, upon the opinion of even date herewith rendered to you
by Thelen Reid & Priest LLP, New York, New York. As to all
matters of Florida law, Thelen Reid & Priest LLP is hereby
authorized to rely upon this opinion as though it were rendered
to it.
Very truly yours,
/s/ Steel Hector & Davis LLP
STEEL HECTOR & DAVIS LLP
Exhibit 5(b)
Thelen Reid & Priest LLP
40 West 57th Street
New York, NY 10019
New York, New York
September 29, 1998
FPL Group, Inc.
FPL Group Capital Inc
700 Universe Boulevard
Juno Beach, Florida 33408
Ladies and Gentlemen:
As counsel for FPL Group, Inc., a Florida corporation ("FPL
Group"), and FPL Group Capital Inc, a Florida corporation (the
"Company"), we have participated in the preparation and filing of
a registration statement on Form S-3 to be filed with the
Securities and Exchange Commission under the Securities Act of
1933, as amended, on or about the date hereof (the "Registration
Statement"), in connection with the proposed offering of up to $625
million in principal amount of the Company's unsecured debt
securities (the "Debentures") and FPL Group's Guarantee relating
thereto (the "Guarantee"). In connection therewith, we have
reviewed such documents and records as we have deemed necessary
to enable us to express an opinion on the matters covered
thereby.
Based on the foregoing, we are of the opinion that the
Debentures and the Guarantee, when the Debentures are sold as
contemplated by the Registration Statement, will be valid, legal
and binding obligations of the Company and FPL Group,
respectively, except as such may later be limited by bankruptcy,
insolvency or other laws affecting mortgagees' and other
creditors' rights generally and limitations on the availability
of equitable remedies.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement. We also consent to the
reference to us in the Prospectus included in the Registration
Statement under the caption "Legal Opinions".
We are members of the New York Bar and this opinion is
limited to the laws of the State of New York and the federal laws
of the United States. As to all matters of Florida law, we have
relied, with your consent, upon the opinion of even date herewith
rendered to you by Steel, Hector & Davis LLP, West Palm Beach,
Florida. As to all matters of New York law, Steel Hector & Davis
LLP, is authorized to rely upon this opinion as if it were
addressed to it.
Very truly yours,
/s/ Thelen Reid & Priest LLP
THELEN REID & PRIEST LLP
Exhibit 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in Registration
Statement No. 33-47813 on Form S-3, as amended by Amendment No. 1
thereto, and Registration Statement No. 33-69786 on Form S-3, as
amended by Amendments No. 1 and 2 thereto, of FPL Group Capital
Inc and in this Registration Statement on Form S-3 of FPL Group,
Inc. and FPL Group Capital Inc of our report dated February 13,
1998 appearing in FPL Group, Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1997 and to the reference to us
under the heading "Experts" in the Prospectus which is part of
this Registration Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Miami, Florida
September 29, 1998
Exhibit 25(a)
-----------------------------------------------------------------
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
---
---------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
______________________
FPL GROUP, INC.
(Exact name of obligor as specified in its charter)
Florida 59-2449419
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
700 Universe Boulevard
Juno Beach, Florida 33408
(Address of principal executive offices) (Zip code)
______________________
Guarantee of FPL Group Capital Debt Securities
(Title of the indenture securities)
-----------------------------------------------------------------
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS
TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING
AUTHORITY TO WHICH IT IS SUBJECT.
-----------------------------------------------------------------
Name Address
-----------------------------------------------------------------
Superintendent of Banks 2 Rector Street, New York,
of the State of New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Washington, D.C. 20429
Corporation
New York Clearing House New York, New York 10005
Association
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST
POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE
COMMISSION, ARE INCORPORATED HEREIN BY REFERENCE AS AN
EXHIBIT HERETO, PURSUANT TO RULE 7A-29 UNDER THE TRUST
INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of
New York (formerly Irving Trust Company) as now in
effect, which contains the authority to commence
business and a grant of powers to exercise corporate
trust powers. (Exhibit 1 to Amendment No. 1 to Form
T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration
Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee.
(Exhibit 4 to Form T-1 filed with Registration
Statement No. 33-31019.)
<PAGE>
6. The consent of the Trustee required by Section 321(b)
of the Act. (Exhibit 6 to Form T-1 filed with
Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The
Bank of New York, a corporation organized and existing under the
laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and State
of New York, on the 22nd day of September, 1998.
THE BANK OF NEW YORK
By: /s/MARIE E. TRIMBOLI
-------------------
Name: MARIE E.TRIMBOLI
Title: ASSISTANT TREASURER
EXHIBIT 7
---------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
March 31, 1998, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions
of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN THOUSANDS
Cash and balances due from
depository institutions:
Noninterest-bearing balances and
currency and coin ...................... $ 6,397,993
Interest-bearing balances ................ 1,138,362
Securities:
Held-to-maturity securities .............. 1,062,074
Available-for-sale securities ............ 4,167,240
Federal funds sold and Securities
purchased under agreements to resell...... 391,650
Loans and lease financing receivables:
Loans and leases, net of unearned income ...... 36,538,242
LESS: Allowance for loan and lease losses .... 631,725
LESS: Allocated transfer risk reserve......... 0
Loans and leases, net of unearned
income, allowance, and reserve 35,906,517
Assets held in trading accounts ............... 2,145,149
Premises and fixed assets (including
capitalized leases) ...................... 663,928
Other real estate owned ....................... 10,895
Investments in unconsolidated
subsidiaries and associated
companies ................................ 237,991
Customers' liability to this bank on
acceptances outstanding .................. 992,747
Intangible assets ............................. 1,072,517
Other assets .................................. 1,643,173
-----------
Total assets .................................. $55,830,236
===========
LIABILITIES
Deposits:
In domestic offices ......................... $24,849,054
Noninterest-bearing ......................... 10,011,422
Interest-bearing ............................ 14,837,632
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ............ 15,319,002
Noninterest-bearing ......................... 707,820
Interest-bearing ............................ 14,611,182
Federal funds purchased and Securities
sold under agreements to repurchase.......... 1,906,066
Demand notes issued to the U.S.
Treasury .................................... 215,985
Trading liabilities ........................... 1,591,288
Other borrowed money:
With remaining maturity of one year
or less ................................... 1,991,119
With remaining maturity of more than
one year through three years............... 0
With remaining maturity of more than
three years ............................... 25,574
Bank's liability on acceptances
executed and outstanding ................. 998,145
Subordinated notes and debentures ............. 1,314,000
Other liabilities ............................. 2,421,281
Total liabilities ............................. 50,631,514
EQUITY CAPITAL
Common stock .................................. 1,135,284
Surplus ....................................... 731,319
Undivided profits and capital
reserves .................................... 3,328,050
Net unrealized holding gains
(losses) on available-for-sale
securities .................................. 40,198
Cumulative foreign currency translation
adjustments ................................. ( 36,129)
Total equity capital .......................... 5,198,722
Total liabilities and equity -----------
capital ..................................... $55,830,236
===========
I, Robert E. Keilman, Senior Vice President and Comptroller
of the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System
and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of
this Report of Condition and declare that it has been examined by
us and to the best of our knowledge and belief has been prepared
in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true and correct.
Thomas A. Renyi
Alan R. Griffith Directors
J. Carter Bacot
Exhibit 25(b)
-----------------------------------------------------------------
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
---
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
FPL GROUP CAPITAL INC.
(Exact name of obligor as specified in its charter)
Florida 59-2576416
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
700 Universe Boulevard
Juno Beach, Florida 33408
(Address of principal executive offices) (Zip code)
-----------------------
FPL Group Capital Debt Securities
(Title of the indenture securities)
-----------------------------------------------------------------
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS
TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING
AUTHORITY TO WHICH IT IS SUBJECT.
-----------------------------------------------------------------
Name Address
-----------------------------------------------------------------
Superintendent of Banks 2 Rector Street, New York, of the
State of New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of 33 Liberty Plaza, New York,
New York N.Y. 10045
Federal Deposit Insurance Washington, D.C. 20429
Corporation
New York Clearing House New York, New York 10005
Association
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST
POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE
COMMISSION, ARE INCORPORATED HEREIN BY REFERENCE AS AN
EXHIBIT HERETO, PURSUANT TO RULE 7A-29 UNDER THE TRUST
INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of
New York (formerly Irving Trust Company) as now in
effect, which contains the authority to commence
business and a grant of powers to exercise corporate
trust powers. (Exhibit 1 to Amendment No. 1 to Form
T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration
Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee.
(Exhibit 4 to Form T-1 filed with Registration
Statement No. 33-31019.)
<PAGE>
6. The consent of the Trustee required by Section 321(b)
of the Act. (Exhibit 6 to Form T-1 filed with
Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The
Bank of New York, a corporation organized and existing under the
laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and State
of New York, on the 22nd day of September, 1998.
THE BANK OF NEW YORK
By: /s/MARIE E. TRIMBOLI
---------------------
Name: MARIE E. TRIMBOLI
Title: ASSISTANT TREASURER
EXHIBIT 7
---------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
March 31, 1998, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions
of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN THOUSANDS
Cash and balances due from
depository institutions:
Noninterest-bearing balances and
currency and coin ...................... $ 6,397,993
Interest-bearing balances ................ 1,138,362
Securities:
Held-to-maturity securities .............. 1,062,074
Available-for-sale securities ............ 4,167,240
Federal funds sold and Securities
purchased under agreements to resell...... 391,650
Loans and lease financing receivables:
Loans and leases, net of unearned income ...... 36,538,242
LESS: Allowance for loan and lease losses .... 631,725
LESS: Allocated transfer risk reserve......... 0
Loans and leases, net of unearned
income, allowance, and reserve 35,906,517
Assets held in trading accounts ............... 2,145,149
Premises and fixed assets (including
capitalized leases) ...................... 663,928
Other real estate owned ....................... 10,895
Investments in unconsolidated
subsidiaries and associated
companies ................................ 237,991
Customers' liability to this bank on
acceptances outstanding .................. 992,747
Intangible assets ............................. 1,072,517
Other assets .................................. 1,643,173
-----------
Total assets .................................. $55,830,236
===========
LIABILITIES
Deposits:
In domestic offices ......................... $24,849,054
Noninterest-bearing ......................... 10,011,422
Interest-bearing ............................ 14,837,632
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ............ 15,319,002
Noninterest-bearing ......................... 707,820
Interest-bearing ............................ 14,611,182
Federal funds purchased and Securities
sold under agreements to repurchase.......... 1,906,066
Demand notes issued to the U.S.
Treasury .................................... 215,985
Trading liabilities ........................... 1,591,288
Other borrowed money:
With remaining maturity of one year
or less ................................... 1,991,119
With remaining maturity of more than
one year through three years............... 0
With remaining maturity of more than
three years ............................... 25,574
Bank's liability on acceptances
executed and outstanding ................. 998,145
Subordinated notes and debentures ............. 1,314,000
Other liabilities ............................. 2,421,281
Total liabilities ............................. 50,631,514
EQUITY CAPITAL
Common stock .................................. 1,135,284
Surplus ....................................... 731,319
Undivided profits and capital
reserves .................................... 3,328,050
Net unrealized holding gains
(losses) on available-for-sale
securities .................................. 40,198
Cumulative foreign currency translation
adjustments ................................. ( 36,129)
Total equity capital .......................... 5,198,722
Total liabilities and equity -----------
capital ..................................... $55,830,236
===========
I, Robert E. Keilman, Senior Vice President and Comptroller
of the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System
and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of
this Report of Condition and declare that it has been examined by
us and to the best of our knowledge and belief has been prepared
in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true and correct.
Thomas A. Renyi
Alan R. Griffith Directors
J. Carter Bacot
