UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of earliest event reported: June 1, 1999
Exact name of Registrant as specified in its IRS Employer
Commission charter, address of principal executive Identification
File Number offices and Registrant's phone number Number
- ----------- -------------------------------------------- --------------
1-8841 FPL GROUP, INC. 59-2449419
700 Universe Boulevard
Juno Beach, Florida 33408
(561) 694-4000
State or other jurisdiction of incorporation: Florida
Item 7. Financial Statements and Exhibits
1 Underwriting Agreement dated June 23, 1999.
4(a) Indenture, dated as of June 1, 1999, between FPL Group Capital
Inc and The Bank of New York, as Trustee.
4(b) Guarantee Agreement between FPL Group, Inc. (as Guarantor)
and The Bank of New York (as Guarantee Trustee) dated as of
June 1, 1999.
4(c) Officer's Certificate of FPL Group Capital Inc, dated
June 29, 1999, creating the 6 7/8%
Debentures, Series due June 1, 2004.
4(d) Officer's Certificate of FPL Group Capital Inc, dated
June 29, 1999, creating the 7 3/8%
Debentures, Series due June 1, 2009.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
FPL Group, Inc.
(Registrant)
Date: July 16, 1999 K. MICHAEL DAVIS
----------------
K. Michael Davis
Controller and Chief Accounting Officer
of FPL Group, Inc.
FPL Group Capital Inc
Debentures
Absolutely and Unconditionally Guaranteed By
FPL Group, Inc.
UNDERWRITING AGREEMENT
June 23, 1999
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 designations, with the terms and in
the principal amounts 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 7 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
"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 of
each series will be a series of debentures issued by FPL Group Capital under
an Indenture, dated as of June 1, 1999, 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 June 1, 1999, 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. In
addition, FPL Group Capital and FPL Group filed with the Commission a
registration statement on Form S-3, including a prospectus
("Registration Statement Nos. 333-64685 and 333-64685-01"), for the
registration of an additional $300,000,000 aggregate principal amount
of FPL Group Capital debt securities and $625,000,000 aggregate
amount of FPL Group guarantee (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 Nos. 333-64685 and 333-64685-01, 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 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 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 or affected by
bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws affecting creditors' rights and remedies generally and
general principles of equity.
(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 direct
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. 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 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 or
affected by bankruptcy, insolvency, reorganization, receivership,
moratorium or other laws affecting creditors' rights and remedies
generally and general principles of equity.
(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 direct and indirect 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.
(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 or affected by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws affecting
creditors' rights and remedies generally and general principles of
equity. 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 prices
for those Debentures 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 of each series 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 Representatives for the
respective accounts of the Underwriters against payment by the several
Underwriters through the Representatives of the purchase price therefor.
Delivery of the Debentures shall be made through the facilities of The
Depository Trust Company unless the Representatives and FPL Group Capital
shall otherwise agree. 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 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 of
each series set forth opposite their respective names in Schedule II hereto)
the principal amount of the Debentures of each series 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 aggregate principal amount of the Debentures of each
series 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 of each series
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:
(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 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; 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 or affected by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws
affecting creditors' rights and remedies generally and
general principles of equity;
(iv) the Debentures of each series are valid
and binding obligations of FPL Group Capital enforceable in
accordance with their respective terms, except as limited or
affected by bankruptcy, insolvency, reorganization,
receivership, moratorium or other laws affecting creditors'
rights and remedies generally and general principles of
equity;
(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 or affected by bankruptcy,
insolvency, reorganization, receivership, moratorium or
other laws affecting creditors rights and remedies generally
and general principles of equity;
(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 their
respective direct 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 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 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), 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 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 of either series 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 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 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 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 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 of either series 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
of each series. 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 of either series.
(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 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 of each series. 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 of either series.
(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).
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 of either series. 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 of either series 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.
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: DILEK SAMIL
--------------
Name: Dilek L. Samil
Title: Vice President, Treasurer
and Assistant Secretary
FPL Group, Inc.
By: DILEK SAMIL
--------------
Name: Dilek L. Samil
Title: Treasurer
Accepted and delivered as of
the date first above written:
Banc of America Securities LLC
By: J R STENSON
-------------
Name: J. R. Stenson
Title: Managing Director
Acting on their own behalf and as Representatives of the other several
Underwriters referred to in the foregoing agreement.
SCHEDULE I
Underwriting Agreement dated
Registration Statement Nos. 33-47813, 33-69786, and 333-64685 and
333-64685-01
Representatives and Addresses:
Banc of America Securities LLC
Chase Securities Inc.
Salomon Smith Barney Inc.
c/o Banc of America Securities LLC
BankAmerica Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255-0001
FAX: (704) 388-0502
Attention: James Stenson
Securities:
1. Designation: 6 7/8% Debentures, Series due June 1, 2004
Principal Amount: $175,000,000
Indenture dated as of: June 1, 1999
Date of Maturity: June 1, 2004
Interest Rate: 6 7/8%
Purchase Price: $173,302,500
Public Offering Price: $174,352,500
Closing Date and Location: June 29, 1999 at the offices of
Thelen Reid & Priest
LLP, 40 West 57th
Street, New York, New York
2. Designation: 7 3/8% Debentures, Series due June 1, 2009
Principal Amount: $225,000,000
Indenture dated as of: June 1, 1999
Date of Maturity: June 1, 2009
Interest Rate: 7 3/8%
Purchase Price: $223,463,250
Public Offering Price: $224,925,750
Closing Date and Location: June 29, 1999 at the offices of
Thelen Reid & Priest
LLP, 40 West 57th
Street, New York, New York
SCHEDULE II
Principal Amount of Principal Amount of
6 7/8% Debentures, 7 3/8% Debentures
Underwriter Series due June 1, 1999 Series due June 1, 1999
Banc of America
Securities LLC $ 58,334,000 $ 75,000,000
Chase Securities Inc. $ 58,333,000 $ 75,000,000
Salomon Smith Barney Inc. $ 58,333,000 $ 75,000,000
TOTAL $175,000,000 $225,000,000
FPL GROUP CAPITAL INC
TO
The Bank of New York,
Trustee
Indenture
(For Unsecured Debt Securities)
Dated as of June 1, 1999
TABLE OF CONTENTS
RECITAL OF THE COMPANY 1
ARTICLE ONE 1
Definitions and Other Provisions of General Application 1
SECTION 101. Definitions 1
Act 2
Affiliate 2
Authenticating Agent 2
Authorized Officer 2
Board of Directors 2
Board Resolution 2
Business Day 2
Commission 2
Company 3
Company Request" or "Company Order" 3
Corporate Trust Office 3
Corporation 3
Defaulted Interest 3
Discount Security 3
Dollar" or "$" 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
SECTION 608. Limitation on Liens 31
ARTICLE SEVEN 34
Satisfaction and Discharge 34
SECTION 701. Satisfaction and Discharge of Securities 34
SECTION 702. Satisfaction and Discharge of Indenture 36
SECTION 703. Application of Trust Money 37
ARTICLE EIGHT 37
Events of Default; Remedies 37
SECTION 801. Events of Default 37
SECTION 802. Acceleration of Maturity; Rescission and
Annulment 38
SECTION 803. Collection of Indebtedness and Suits for
Enforcement by Trustee 39
SECTION 804. Trustee May File Proofs of Claim 40
SECTION 805. Trustee May Enforce Claims Without
Possession of Securities 41
SECTION 806. Application of Money Collected 41
SECTION 807. Limitation on Suits 41
SECTION 808. Unconditional Right of Holders to Receive
Principal, Premium and Interest 42
SECTION 809. Restoration of Rights and Remedies 42
SECTION 810. Rights and Remedies Cumulative 42
SECTION 811. Delay or Omission Not Waiver 42
SECTION 812. Control by Holders of Securities 43
SECTION 813. Waiver of Past Defaults 43
SECTION 814. Undertaking for Costs 43
SECTION 815. Waiver of Stay or Extension Laws 44
ARTICLE NINE 44
The Trustee 44
SECTION 901. Certain Duties and Responsibilities 44
SECTION 902. Notice of Defaults 45
SECTION 903. Certain Rights of Trustee 45
SECTION 904. Not Responsible for Recitals or Issuance of
Securities 47
SECTION 905. May Hold Securities 47
SECTION 906. Money Held in Trust 47
SECTION 907. Compensation and Reimbursement 47
SECTION 908. Disqualification; Conflicting Interests. 48
SECTION 909. Corporate Trustee Required; Eligibility 48
SECTION 910. Resignation and Removal; Appointment of
Successor 49
SECTION 911. Acceptance of Appointment by Successor 51
SECTION 912. Merger, Conversion, Consolidation or
Succession to Business 52
SECTION 913. Preferential Collection of Claims Against
Company 52
SECTION 914. Co-trustees and Separate Trustees. 52
SECTION 915. Appointment of Authenticating Agent 53
ARTICLE TEN 55
Holders' Lists and Reports by Trustee and Company 55
SECTION 1001. Lists of Holders 55
SECTION 1002. Reports by Trustee and Company 55
ARTICLE ELEVEN 56
Consolidation, Merger, Conveyance or Other Transfer 56
SECTION 1101. Company May Consolidate, Etc., Only on
Certain Terms 56
SECTION 1102. Successor Entity Substituted 56
ARTICLE TWELVE 57
Supplemental Indentures 57
SECTION 1201. Supplemental Indentures Without Consent of
Holders 57
SECTION 1202. Supplemental Indentures With Consent of
Holders 58
SECTION 1203. Execution of Supplemental Indentures 60
SECTION 1204. Effect of Supplemental Indentures 60
SECTION 1205. Conformity With Trust Indenture Act 60
SECTION 1206. Reference in Securities to Supplemental
Indentures 60
SECTION 1207. Modification Without Supplemental
Indenture 60
ARTICLE THIRTEEN 61
Meetings of Holders; Action Without Meeting 61
SECTION 1301. Purposes for Which Meetings May Be Called 61
SECTION 1302. Call, Notice and Place of Meetings 61
SECTION 1303. Persons Entitled to Vote at Meetings 62
SECTION 1304. Quorum; Action 62
SECTION 1305. Attendance at Meetings; Determination of
Voting Rights; Conduct and Adjournment
of Meetings 63
SECTION 1306. Counting Votes and Recording Action of
Meetings 63
SECTION 1307. Action Without Meeting 64
ARTICLE FOURTEEN 64
Immunity of Incorporators, Stockholders, Officers and Directors 64
SECTION 1401. Liability Solely Corporate 64
Testimonium 65
Signatures and Seals 66
FPL GROUP CAPITAL INC
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of June 1, 1999
Trust Indenture
Act Section Indenture Section
310 (a)(1) 909
(a)(2) 909
(a)(3) 914(b)
(a)(4) Not Applicable
(b) 908
910
311 (a) 913
(b) 913
(c) 913
312 (a) 1001
(b) 1001
(c) 1001
313 (a) 1002
(b) 1002
(c) 1002
(d) 1002
314 (a) 1002
(a)(4) 606
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
315 (a) 901
903
(b) 902
(c) 901
(d) 901
(e) 814
316 (a) 812
813
(a)(1)(A) 802
812
(a)(1)(B) 813
(a)(2) Not Applicable
(b) 808
317 (a)(1) 803
(a)(2) 804
(b) 603
318 (a) 107
INDENTURE, dated as of June 1, 1999 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 delivery 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, the
Secretary, any Assistant Secretary 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 Commission,
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, performing 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, company,
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 principal 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 instruments
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 Section 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 principal 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 determination 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 specifically 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 certificate
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, notice,
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) 815-5758
Telecopy: (212) 815-5915
If to the Company, to:
FPL Group Capital Inc
700 Universe Boulevard
Juno Beach, Florida 33408
Attention: Treasurer
Telephone: (561) 694-6437
Telecopy: (561) 694-6299
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 premium, 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 interest, 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 Indenture 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 substantially 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 definitive
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 governmental charge that may be imposed in connection with
any registration 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 Securities 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 Defaulted 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
Officer'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 provided
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 mandatory 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 April 1 in each year, commencing April 1,
2000, 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.
SECTION 608. Limitation on Liens.
(a) Except as otherwise specified as contemplated by
Section 301 for Securities of any series, so long as any Securities of any
series are Outstanding, the Company will not pledge, mortgage, hypothecate or
grant a security interest in, or permit any mortgage, pledge, security
interest or other lien upon, any capital stock of any Subsidiary (hereinafter
defined) which capital stock is now or hereafter directly owned by the
Company, to secure any Indebtedness (hereinafter defined) without
concurrently making effective provision whereby the Outstanding Securities
shall (so long as such other Indebtedness shall be so secured) be equally and
ratably secured with any and all such other Indebtedness and any other
Indebtedness similarly entitled to be equally and ratably secured; provided,
however, that this restriction shall not apply to nor prevent the creation or
existence of:
(1) any mortgage, pledge, security interest, lien or
encumbrance upon any such capital stock created at the time of the
acquisition of such capital stock by the Company, or within 270 days
after such time, to secure all or a portion of the purchase price
for such capital stock;
(2) any mortgage, pledge, security interest, lien or
encumbrance upon any such capital stock existing thereon at the time
of the acquisition thereof by the Company (whether or not the
obligations secured thereby are assumed by the Company and whether
or not such mortgage, pledge, security interest, lien or encumbrance
was created in contemplation of such acquisition);
(3) any extension, renewal or replacement of any
mortgage, pledge, security interest, lien or encumbrance permitted
by Subsection (1) or (2) above, or of any Indebtedness secured
thereby; provided that the principal amount of Indebtedness so
secured immediately following the time of such extension, renewal or
replacement shall not exceed the principal amount of Indebtedness so
secured immediately preceding the time of such extension, renewal or
replacement, and that such extension, renewal or replacement
mortgage, pledge, security interest, lien or encumbrance shall be
limited to no more than the same proportion of all shares of capital
stock as were covered by the mortgage, pledge, security interest,
lien or encumbrance that was extended, renewed or replaced; or
(4) any judgment, levy, execution, attachment or other
similar lien arising in connection with court proceedings, provided
that either
(i) the execution or enforcement of each such lien
is effectively stayed within 30 days after entry of the
corresponding judgment (or the corresponding judgment has
been discharged within such 30 day period) and the claims
secured thereby are being contested in good faith by
appropriate proceedings timely commenced and diligently
prosecuted;
(ii) the payment of each such lien is covered in
full by insurance and the insurance company has not denied
or contested coverage thereof; or
(iii) so long as each such lien is adequately
bonded, any appropriate legal proceedings that may have been
duly initiated for the review of the corresponding judgment,
decree or order shall not have been fully terminated or the
period within which such proceedings may be initiated shall
not have expired.
For purposes of this Section 608, "Indebtedness" means all
indebtedness, whether or not represented by bonds, debentures, notes or other
securities, created or assumed by the Company for the repayment of money
borrowed. All indebtedness for money borrowed secured by a lien upon capital
stock owned by the Company and upon which indebtedness for money borrowed the
Company customarily pays interest, although the Company has not assumed or
become liable for the payment of such indebtedness for money borrowed, shall
for purposes of this Section 608 be deemed to be Indebtedness of the Company.
All indebtedness of others for money borrowed, which is guaranteed as to
payment of principal by the Company or in effect guaranteed by the Company
through a contingent agreement to purchase such indebtedness for money
borrowed, shall for purposes of this Section 608 be deemed to be Indebtedness
of the Company, but no other contingent obligation of the Company in respect
of indebtedness for money borrowed or other obligations incurred by others
shall for purposes of this Section 608 be deemed to be Indebtedness of the
Company.
In case the Company shall propose to pledge, mortgage,
hypothecate or grant a security interest in any capital stock of any
Subsidiary owned by the Company to secure any Indebtedness, other than as
permitted by Subsections (a)(1) to (a)(3), inclusive, of this Section 608,
the Company will prior thereto give written notice thereof to the Trustee,
and the Company will prior to or simultaneously with such pledge, mortgage,
hypothecation or grant of security interest, by supplemental indenture
executed to the Trustee (or to the extent legally necessary to another
trustee or an additional or separate trustee), in form satisfactory to the
Trustee, effectively secure (for so long as such other Indebtedness shall be
so secured) all the Outstanding Securities equally and ratably with such
Indebtedness and with any other indebtedness for money borrowed similarly
entitled to be equally and ratably secured.
(b) Except as otherwise specified as contemplated by
Section 301 for Securities of any series, the provisions of Subsection (a) of
this Section 608 shall not apply to the extent that the Company creates any
Restricted Liens to secure Indebtedness that, together with all other
Indebtedness secured by Restricted Liens, does not at the time exceed 5% of
Consolidated Capitalization.
For purposes of this Section 608:
(1) The term "Consolidated Capitalization" means the
sum obtained by adding (i) Consolidated Shareholders' Equity, (ii)
Consolidated Indebtedness for money borrowed (exclusive of any
thereof which is due and payable within one year of the date such
sum is determined) and, without duplication, (iii) any preference or
preferred stock of the Company or any Consolidated Subsidiary which
is subject to mandatory redemption or sinking fund provisions.
(2) The term "Consolidated Shareholders' Equity" means
the total Assets of the Company and its Consolidated Subsidiaries
less all liabilities of the Company and its Consolidated
Subsidiaries. As used in this definition, "liabilities" means all
obligations which would, in accordance with generally accepted
accounting principles, be classified on a balance sheet as
liabilities, including without limitation, (i) indebtedness secured
by property of the Company or any of its Consolidated Subsidiaries
whether or not the Company or such Consolidated Subsidiary is liable
for the payment thereof unless, in the case that the Company or such
Consolidated Subsidiary is not so liable, such property has not been
included among the Assets of the Company or such Consolidated
Subsidiary on such balance sheet, (ii) deferred liabilities, (iii)
indebtedness of the Company or any of its Consolidated Subsidiaries
that is expressly subordinated in right and priority of payment to
other liabilities of the Company or such Consolidated Subsidiary.
As used in this definition, "liabilities" includes preference or
preferred stock of the Company or any Consolidated Subsidiary only
to the extent of any such preference or preferred stock that is
subject to mandatory redemption or sinking fund provisions.
(3) The term "Consolidated Subsidiary" means at any
date any Subsidiary the financial statements of which under
generally accepted accounting principles would be consolidated with
those of the Company in its consolidated financial statements as of
such date.
(4) The "Assets" of any Person means the whole or any
part of its business, property, assets, cash and receivables.
(5) The term "Consolidated Indebtedness" means total
indebtedness as shown on the consolidated balance sheet of the
Company and its Consolidated Subsidiaries.
(6) The term "Restricted Liens" means any mortgage,
pledge, security interest, lien or encumbrance upon any capital
stock of any Subsidiary, which capital stock is now or hereafter
directly owned by the Company, to secure any Indebtedness, other
than any mortgage, pledge, security interest, lien or encumbrance
described in (a)(1) through (a)(4) above.
(7) "Subsidiary" means a corporation more than 50% of
the outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more other Subsidiaries, or
by the Company and one or more other Subsidiaries. For the purposes
of this definition, "voting stock" means stock that ordinarily has
voting power for the election of directors, whether at all times or
only so long as no senior class of stock has such voting power by
reason of any contingency.
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 Company, 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 deposited
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 interest, 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 unpaid
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.
SECTION 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 rehabilitation, 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 provided 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 June 1 and December 1 in each
year, commencing December 1, 1999, 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, 2000, 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 April 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
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
(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
Indenture 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 presented
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.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, in New York, New York, as of the day and year
first above written.
FPL GROUP CAPITAL INC
By: DILEK L. SAMIL
---------------
Dilek L. Samil
Vice President, Treasurer
and Assistant Secretary
THE BANK OF NEW YORK, TRUSTEE
By: ANNETTE L. KOS
--------------
Annette L. Kos
Assistant Vice President
GUARANTEE AGREEMENT
Between
FPL Group, Inc.
(as Guarantor)
and
The Bank of New York
(as Guarantee Trustee)
dated as of
June 1, 1999
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS 1
1.01 Definitions 1
ARTICLE II
TRUST INDENTURE ACT 3
2.01 Trust Indenture Act; Application 3
2.02 Lists of Holders of Guaranteed Debt Securities 3
2.03 Reports by Guarantee Trustee 3
2.04 Periodic Reports by Guarantor 4
2.05 Evidence of Compliance with Conditions Precedent 4
2.06 Events of Default; Waiver 4
2.07 Event of Default; Notice 4
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE 5
3.01 Powers and Duties of Guarantee Trustee 5
3.02 Certain Rights of Guarantee Trustee 6
3.03 Not Responsible for Recitals of Guarantee
Agreement 8
ARTICLE IV
GUARANTEE TRUSTEE 8
4.01 Guarantee Trustee; Eligibility 8
4.02 Compensation and Reimbursement 9
4.03 Appointment, Removal and Resignation of Guarantee
Trustee 10
ARTICLE V
GUARANTEE 11
5.01 Guarantee 11
5.02 Waiver and Payments 11
5.03 Absolute and Unconditional 11
5.04 Waiver of Notice 12
5.05 Duration 12
5.06 Certain Rights, Remedies and Powers of Guaranteed
Persons 12
5.07 Governing Law 13
5.08 Delays 13
5.09 Separability 13
ARTICLE VI
MISCELLANEOUS 13
6.01 Amendments 13
6.02 Subsidiary 13
6.03 Usurious Interest 13
6.04 Successors and Assigns 14
6.05 Notices 14
6.06 Benefit 15
CROSS-REFERENCE TABLE*
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
310(a) 4.01(a)
310(b) 4.01(c), 2.08
310(c) Inapplicable
311(a) 2.02(b)
311(b) 2.02(b)
311(c) Inapplicable
312(a) 2.02(a)
312(b) 2.02(b)
313 2.03
314(a) 2.04
314(b) Inapplicable
314(c) 2.05
314(d) Inapplicable
314(e) 1.01, 2.05, 3.02
315(a) 3.01(d)
315(b) 2.07
315(c) 3.01
315(d) 3.01(d)
315(e) 2.01(a)
316(a) 2.06
316(b) Inapplicable
316(c) 2.02
317(a) Inapplicable
317(b) Inapplicable
318(a) 2.01(b)
318(b) 2.01
318(c) 2.01(a)
* This Cross-Reference Table does not constitute part of the
Guarantee Agreement and shall not affect the interpretation of any
of its terms or provisions.
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as
of June 1, 1999, is executed and delivered by FPL Group, Inc., a Florida
corporation (the "Guarantor"), and The Bank of New York, a New York banking
corporation, as trustee (the "Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Guaranteed Debt
Securities (as defined herein) of FPL Group Capital Inc, a Florida
corporation (the "Issuer").
WHEREAS, pursuant to an Indenture (For Unsecured Debt
Securities) dated as of June 1, 1999 from the Issuer to The Bank of New York,
a New York banking corporation, as trustee (the "Indenture Trustee") (as
heretofore and from time to time hereafter amended and supplemented, the
"Indenture"), the Issuer may issue debentures, notes or other evidence of
indebtedness, in one or more series, in an unlimited amount from time to time
(the "Debt Securities").
NOW, THEREFORE, FOR AND IN CONSIDERATION OF One Dollar
($1.00) and other good and valuable consideration, the receipt of which is
hereby acknowledged, the Guarantor and the Guarantee Trustee hereby agree as
follows:
ARTICLE I
DEFINITIONS
1.
1.01 Definitions. As used in this Guarantee Agreement,
the terms set forth below shall, unless the context otherwise requires, have
the following meanings. Capitalized or otherwise defined terms used but not
otherwise defined herein shall have the meanings assigned to such terms in
the Indenture as in effect on the date hereof.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Event of Default" means a default by the Guarantor on any
of its payment obligations under this Guarantee Agreement.
"Guarantee Trustee" means The Bank of New York until a
Successor Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Guarantee Agreement and thereafter
means such Successor Guarantee Trustee.
"Guaranteed Debt Securities" means all of the Debt
Securities other than the Debt Securities that, by their terms, are expressly
not entitled to the benefit of this Guarantee Agreement.
"Holder" means a Person in whose name a Guaranteed Debt
Security is registered in the Security Register (as defined in the
Indenture).
"List of Holders" shall have the meaning ascribed to that
term in Section 2.02 below.
"Officer's Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President, any Vice
President, the Treasurer, or any Assistant Treasurer, or any other duly
authorized officer, of the Guarantor, and delivered to the Guarantee Trustee.
Any Officer's Certificate delivered with respect to compliance with a
condition or covenant provided for in this Guarantee Agreement shall include:
(a) a statement that the officer signing the Officer's
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by the officer in rendering
the Officer's Certificate;
(c) a statement that such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such
officer, such condition or covenant has been complied with.
"Person" means any individual, corporation, limited
liability company, partnership, joint venture, trust, unincorporated
organization or government, or any agency or political subdivision thereof,
or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee
Trustee, any vice-president, any assistant vice-president, any assistant
secretary, any assistant treasurer, any trust officer or assistant trust
officer or any other officer of the Guarantee Trustee customarily performing
functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Guarantee Agreement.
"Security Registrar" shall have the meaning set forth for
such term in the Indenture.
"Successor Guarantee Trustee" means a successor Guarantee
Trustee possessing the qualifications to act as Guarantee Trustee under
Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
ARTICLE II
TRUST INDENTURE ACT
2.
2.01 Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the
provisions of the Trust Indenture Act that are required or deemed to be part
of this Guarantee Agreement and shall, to the extent applicable, be governed
by such provisions; and
(b) If and to the extent that any provision of
this Guarantee Agreement limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control.
2.02 Lists of Holders of Guaranteed Debt Securities.
(a) The Guarantor shall furnish or cause to be
furnished to the Guarantee Trustee (a) semiannually, not later than June 1
and December 1 in each year, commencing December 1, 1999 a list, in such form
as the Guarantee Trustee may reasonably require, of the names and addresses
of the Holders in possession or control of the Issuer or any of its paying
agents ("List of Holders") as of a date not more than 15 days prior to the
delivery thereof, and (b) at such other times as the Guarantee Trustee may
request in writing, within 30 days after the receipt by the Guarantor of any
such request, a List of Holders as of a date not more than 15 days prior to
the time such list is furnished; provided that, the Guarantor shall not be
obligated to provide such List of Holders at any time the List of Holders
does not differ from the most recent List of Holders given to the Guarantee
Trustee by the Guarantor or the Issuer; and provided, further, that the
Guarantor shall not be obligated to provide such List of Holders so long as
the Guarantee Trustee shall be the Security Registrar. The Guarantee Trustee
may destroy any List of Holders previously given to it on receipt of a new
List of Holders.
(b) The Guarantee Trustee shall comply with
its obligations under Section 311(a) of the Trust Indenture Act, subject to
the provisions of Section 311(b) and Section 312(b) of the Trust Indenture
Act.
2.03 Reports by Guarantee Trustee. Not later than July
15 of each year, commencing July 15, 2000 the Guarantee Trustee shall provide
to the Holders such reports, if any, as are required by Section 313(a) of the
Trust Indenture Act in the form and in the manner provided by Section 313(a)
of the Trust Indenture Act. The Guarantee Trustee shall also comply with the
requirements of Sections 313(b), (c) and (d) of the Trust Indenture Act.
2.04 Periodic Reports by Guarantor. The Guarantor
shall provide to the Guarantee Trustee, the Securities and Exchange
Commission and the Holders such documents, reports and information, if any,
as required by Section 314 of the Trust Indenture Act, and shall deliver to
the Guarantee Trustee the compliance certificate required by Section
314(a)(4) of the Trust Indenture Act, each in the form, in the manner and at
the times required by Section 314 of the Trust Indenture Act.
2.05 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with any conditions precedent provided for in this Guarantee
Agreement as and to the extent required by Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) of the Trust Indenture Act may be given in the
form of an Officer's Certificate.
2.06 Events of Default; Waiver. The Holders of all
outstanding Guaranteed Debt Securities may, by vote, waive any past Event of
Default and its consequences. Upon such waiver, any such Event of Default
shall cease to exist, and any Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Guarantee Agreement, but
no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon.
2.07 Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90
days after the occurrence of an Event of Default, transmit by mail, first
class postage prepaid, to the Holders, notices of all Events of Default known
to the Guarantee Trustee, unless such defaults have been cured or waived
before the giving of such notice, provided that the Guarantee Trustee shall
be protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors or
Responsible Officers of the Guarantee Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed
to have knowledge of any Event of Default unless a Responsible Officer
charged with the administration of the Guarantee shall have actual knowledge
of the Event of Default.
2.08 Conflicting Interests. The Indenture shall be
deemed to be specifically described in this Guarantee Agreement for the
purposes of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
3.
3.01 Powers and Duties of Guarantee Trustee.
(a) This Guarantee Agreement shall not transfer any
rights hereunder to any Person except to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee Trustee, and such
vesting shall be effective whether or not conveyancing documents have been
executed and delivered pursuant to the appointment of such Successor
Guarantee Trustee.
(b) The Guarantee Trustee, prior to the occurrence of
any Event of Default and after the curing or waiving of all Events of Default
that may have occurred, shall undertake to perform such duties and only such
duties as are specifically set forth in this Guarantee Agreement, and no
implied covenants or obligations shall be read into this Guarantee Agreement
against the Guarantee Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.06), and is actually
known to a Responsible Officer of the Guarantee Trustee, the Guarantee
Trustee shall exercise such of the rights and powers vested in it by this
Guarantee Agreement, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(c) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of
Default and after the curing or waiving of all such Events
of Default that may have occurred:
(A) the duties and obligations
of the Guarantee Trustee shall be determined
solely by the express provisions of this Guarantee
Agreement, and the Guarantee Trustee shall not be
liable except for the performance of such duties
and obligations as are specifically set forth in
this Guarantee Agreement, and no implied covenants
or obligations shall be read into this Guarantee
Agreement against the Guarantee Trustee; and
(B) in the absence of bad
faith on the part of the Guarantee Trustee, the
Guarantee Trustee may conclusively rely, as to the
truth of the statements and the correctness of the
opinions expressed therein, upon any certificates
or opinions furnished to the Guarantee Trustee and
conforming to the requirements of this Guarantee
Agreement; but in the case of any such
certificates or opinions that by any provision
hereof are specifically required to be furnished
to the Guarantee Trustee, the Guarantee Trustee
shall be under a duty to examine the same to
determine whether or not they conform to the
requirements of this Guarantee Agreement (but need
not confirm or investigate the accuracy of
mathematical calculations or other facts stated
therein);
(ii) the Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a
Responsible Officer of the Guarantee Trustee, unless it
shall be proved that the Guarantee Trustee was negligent in
ascertaining the pertinent facts upon which such judgment
was made;
(iii) the Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of the
Holders of a majority in aggregate principal amount of
outstanding Guaranteed Debt Securities relating to the time,
method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee, or exercising any trust
or power conferred upon the Guarantee Trustee under this
Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement
shall require the Guarantee Trustee to expend or risk its
own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if the Guarantee
Trustee shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably
assured to it under the terms of this Guarantee Agreement or
adequate indemnity, reasonably satisfactory to the Guarantee
Trustee, against such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly provided, every
provision of this Guarantee Agreement relating to the conduct or affecting
the liability of or affording protection to the Guarantee Trustee shall be
subject to the provisions of Sections 3.01(b) and 3.01(c).
3.02 Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.01:
(i) the Guarantee Trustee may rely and shall
be fully protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document reasonably believed by it to be genuine
and to have been signed, sent or presented by the proper
party or parties;
(ii) any direction or act of the Guarantor
contemplated by this Guarantee Agreement shall be
sufficiently evidenced by an Officer's Certificate;
(iii) whenever, in the administration of this
Guarantee Agreement, the Guarantee Trustee shall deem it
desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the
Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on
its part, request and rely upon an Officer's Certificate
which, upon receipt of such request, shall be promptly
delivered by the Guarantor;
(iv) the Guarantee Trustee may consult with
counsel of its choice, and the written advice or opinion of
such counsel with respect to legal matters shall be full and
complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good
faith and in reliance on such advice or opinion; such
counsel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees; the
Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Guarantee
Agreement from any court of competent jurisdiction;
(v) the Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in
it by this Guarantee Agreement at the request or direction
of any Holder, unless such Holder shall have provided to the
Guarantee Trustee such adequate security and indemnity as
would satisfy a reasonable person in the position of the
Guarantee Trustee, against the costs, expenses (including
attorneys' fees and expenses) and liabilities that might be
incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by
the Guarantee Trustee; provided that, nothing contained in
this Section 3.02(a)(v) shall be taken to relieve the
Guarantee Trustee of its obligation under the last sentence
of Section 3.01(b) to exercise the rights and powers vested
in it by this Guarantee Agreement;
(vi) the Guarantee Trustee shall not be bound
to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit;
(vii) the Guarantee Trustee may execute any of
the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or
attorneys and the Guarantee Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(viii) whenever in the administration of this
Guarantee Agreement the Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing
any remedy or right or taking any other action hereunder,
the Guarantee Trustee (1) may request instructions from the
Holders of a majority in aggregate principal amount of
outstanding Guaranteed Debt Securities, (2) may refrain from
enforcing such remedy or right or taking such other action
until such instructions are received, and (3) shall be
protected in relying on or acting in accordance with such
instructions;
(ix) the Guarantee Trustee shall have no duty
to see to any recording, filing or registration of any
instrument (including any financing or continuation
statement or any tax or securities form) (or any
rerecording, refiling or re-registration thereof); and
(x) the Guarantee Trustee shall not be liable
for any action taken, suffered or omitted to be taken by it
in good faith and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon
it by this Guarantee Agreement.
(b) No provision of this Guarantee Agreement shall be
deemed to impose any duty or obligation on the Guarantee Trustee to perform
any act or acts or exercise any right, power, duty or obligation conferred or
imposed on it in any jurisdiction in which it shall be illegal, or in which
the Guarantee Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts or to exercise any such
right, power, duty or obligation. No permissive power or authority available
to the Guarantee Trustee shall be construed to be a duty.
3.03 Not Responsible for Recitals of Guarantee Agreement.
The recitals contained in this Guarantee Agreement shall be
taken as the statements of the Guarantor, and the Guarantee Trustee does not
assume any responsibility for their correctness. The Guarantee Trustee makes
no representation as to the validity or sufficiency of this Guarantee
Agreement except that it is duly authorized and qualified to enter into and
perform its responsibilities under this Guarantee Agreement.
ARTICLE IV
GUARANTEE TRUSTEE
4.01 Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing
business under the laws of the United States of America or
any State or Territory thereof or of the District of
Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an
institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least 50
million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial or
District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or
examining authority referred to above, then, for the
purposes of this Section 4.01(a)(ii), the combined capital
and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published.
(b) If at any time the Guarantee Trustee shall cease
to be eligible to so act under Section 4.01(a), the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section
4.03(c).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Guarantee Trustee and Guarantor shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act.
4.02 Compensation and Reimbursement.
The Guarantor agrees:
(a) to pay the Guarantee Trustee from time to time
such compensation as the Guarantor and the Guarantee Trustee shall from time
to time agree in writing for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Guarantee Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Guarantee Trustee in
accordance with the provisions of this Guarantee Agreement (including the
reasonable compensation and expenses of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(c) to indemnify each of the Guarantee Trustee and any
predecessor Guarantee Trustee for, and to hold it harmless from and against,
any and all loss, damage, claim, liability or expense, including taxes (other
than taxes based upon the income of the Guarantee Trustee) incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance of the trusts created by, or the administration of, this Guarantee
Agreement, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
As security for the performance of the obligations of the
Guarantor under this Section, the Guarantee Trustee shall have a lien prior
to that of the Guaranteed Debt Securities upon all the property or funds held
or collected by the Guarantee Trustee as such, except for funds held in trust
for the payment of principal, premium (if any) or interest on particular
obligations of the Guarantor under this Guarantee Agreement.
The provisions of this Section shall survive the termination
of this Guarantee Agreement.
4.03 Appointment, Removal and Resignation of Guarantee
Trustee.
(a) Subject to Section 4.03(b), unless an Event of
Default shall have occurred and be continuing, the Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a
Successor Guarantee Trustee has been appointed and has accepted such
appointment by written instrument executed by such Successor Guarantee
Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall
hold office until a Successor Guarantee Trustee shall have been appointed or
until its removal or resignation. The Guarantee Trustee may resign from
office (without need for prior or subsequent accounting) by an instrument in
writing executed by the Guarantee Trustee and delivered to the Guarantor,
which resignation shall not take effect until a Successor Guarantee Trustee
has been appointed and has accepted such appointment by instrument in writing
executed by such Successor Guarantee Trustee and delivered to the Guarantor
and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.03 within 30
days after delivery to the Guarantor of an instrument of resignation or
removal, the Guarantee Trustee resigning or being removed may, at the expense
of the Guarantor, petition any court of competent jurisdiction for
appointment of a Successor Guarantee Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper, appoint a
Successor Guarantee Trustee.
(e) The Guarantor shall give notice of each
resignation and each removal of the Guarantee Trustee and each appointment of
a successor Guarantee Trustee to all Holders in the manner provided in
Section 6.05 hereof. Each notice shall include the name of the successor
Guarantee Trustee and the address of its Corporate Trust Office.
(f) No Guarantee Trustee shall be liable for the acts
or omissions to act of any Successor Guarantee Trustee.
ARTICLE V
GUARANTEE
5.01 Guarantee. The Guarantor hereby absolutely and
unconditionally guarantees to the Indenture Trustee, prompt and full payment,
when and as the same may become due and payable, whether upon acceleration,
redemption or stated maturity, according to their terms and the terms of the
Indenture, of the principal, interest and premium, if any, due on each of the
Guaranteed Debt Securities outstanding at any time, but only in the case of a
failure of the Issuer to pay or provide for punctual payment of any such
amounts on or before the expiration of any applicable grace periods. The
Guarantor hereby agrees that its obligations under this Guarantee Agreement
constitute a guarantee of payment when due and not of collection.
5.02 Waiver and Payments. The Guarantor hereby waives
demand of payment, presentment, protest and notice of protest, non-payment,
default or dishonor on any and all of the Guaranteed Debt Securities.
Payments by Guarantor to the Indenture Trustee for the account of the Holders
pursuant to this Guarantee Agreement shall be made at the principal corporate
trust office of the Indenture Trustee at 101 Barclay Street, Floor 21 W, New
York, New York 10286, in lawful money of the United States of America.
5.03 Absolute and Unconditional. The Guarantor hereby
agrees that its obligations hereunder shall be absolute and shall be complete
and binding. This Guarantee Agreement contains the full agreement of the
Guarantor and is not subject to any oral conditions.
The Guarantor agrees that the obligations of the Guarantor
set forth in this Guarantee Agreement shall not be subject to any
counterclaim, set off, deduction, recoupment, or suspension, or released,
discharged or in any way affected or impaired by, any circumstances or
conditions whatsoever, including, without limitation, any invalidity,
irregularity or unenforceability of any Guaranteed Debt Securities or the
Indenture, any failure to enforce the provisions of such Guaranteed Debt
Securities or the Indenture, or any waiver, modification or indulgence
granted to the Issuer with respect thereto by the Holders of such Guaranteed
Debt Securities or the Indenture Trustee or any other circumstances or
condition which may otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor.
The obligations of the Guarantor set forth herein constitute
the full recourse obligations of the Guarantor enforceable against it to the
full extent of all its assets and properties. Without limiting the
generality of the foregoing, the Guarantor agrees that (a) repeated and
successive demands may be made and recoveries may be had hereunder as and
when, from time to time, the Issuer shall default under or fail to make
payments when due under the Indenture and that, notwithstanding the recovery
hereunder for or in respect of any given default or failure to so comply by
the Issuer under the Indenture, this Guarantee Agreement shall remain in
force and effect and shall apply to each and every subsequent default, and
(b) in the event that any payment guaranteed hereunder is made by the Issuer,
and thereafter all or any part of such payment is recovered from the
Guarantee Trustee, the Indenture Trustee or any Holder of Guaranteed Debt
Securities upon the insolvency, bankruptcy or reorganization of the Issuer,
the liability of the Guarantor hereunder with respect to such payment so paid
and recovered shall continue and remain in full force and effect as if, to
the extent of such recovery, such payment had not been made.
If (x) an event permitting a declaration of acceleration
under Section 802 of the Indenture shall at any time have occurred and be
continuing, (y) the Holders of not less than 33% in principal amount of all
outstanding Guaranteed Debt Securities have made, or have attempted to make,
such a declaration of acceleration, and (z) such declaration of acceleration,
or any consequences thereof provided in the Indenture, shall at any time be
prevented by reason of the pendency against the Issuer of a case or
proceeding under any bankruptcy or insolvency law, the Guarantor agrees that,
solely for purposes of this Guarantee Agreement and its obligations
hereunder, such declaration of acceleration shall be deemed to have been
made, with all the attendant consequences as provided in the Indenture as if
declaration of acceleration and the consequences thereof had been
accomplished in accordance with the terms of the Indenture.
5.04 Waiver of Notice. The Guarantor hereby expressly
waives notice from the Indenture Trustee of its acceptance and reliance on
this Guarantee Agreement.
5.05 Duration. The obligations hereunder shall be
continuing and irrevocable until the date upon which all of the outstanding
Guaranteed Debt Securities have been, or have been deemed pursuant to the
provisions of Article Seven of the Indenture to have been, fully paid and
performed.
If, in accordance with the last paragraph of Section 701 of
the Indenture, any Guaranteed Debt Securities are retroactively deemed not to
have been paid, and any satisfaction of the Issuer's indebtedness in respect
thereof is retroactively deemed not to have been effected, the obligations of
the Guarantor hereunder shall be deemed retroactively not to have been
terminated or discharged.
5.06 Certain Rights, Remedies and Powers of Guaranteed
Persons. The Guarantee Trustee, the Indenture Trustee and the Holders of
Guaranteed Debt Securities shall have all of the rights and remedies
available under applicable law and may proceed by appropriate court action to
enforce the terms hereof and to recover damages for the breach hereof. Each
and every remedy of each such Person shall, to the extent permitted by law,
be cumulative and shall be in addition to any other remedy now or hereafter
existing at law or in equity. At the option of any such Person, the
Guarantor may be joined in any action or proceeding commenced by such Person
against the Issuer in respect of any obligations under this Guarantee
Agreement, and recovery may be had against the Guarantor in such action or
proceeding or in any independent action or proceeding against the Guarantor,
without any requirement that any remedy or claim against the Issuer be first
asserted, prosecuted or exhausted.
5.07 Governing Law. This Guarantee Agreement shall be
construed in accordance with and governed by the laws of the State of New
York, without regard to conflict of laws principles thereunder, except to the
extent that the law of any other jurisdiction shall be mandatorily
applicable.
5.08 Delays. No failure, omission or delay on the part
of the Guarantee Trustee or the Indenture Trustee in exercising any of their
respective rights hereunder or in taking any action to collect or enforce
payment of any obligation to which this Guarantee Agreement applies, against
the Issuer, shall operate as a waiver of any such right or in any manner
prejudice the rights of the Guarantee Trustee or the Indenture Trustee
against the Guarantor.
5.09 Separability. Wherever possible, each provision
of this Guarantee Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this
Guarantee Agreement shall be prohibited by or invalid under such law, such
provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Guarantee Agreement.
ARTICLE VI
MISCELLANEOUS
6.01 Amendments. This Guarantee Agreement may only be
amended by an instrument in writing duly executed by the Guarantor and the
Guarantee Trustee. Except with respect to any changes that do not materially
adversely affect the rights of Holders (in which case no consent of Holders
will be required), this Guarantee Agreement may only be amended with the
prior written approval of the Holders of a majority in aggregate principal
amount of outstanding Guaranteed Debt Securities; provided, that, the right
of any Holder to receive payment under this Guarantee Agreement on the due
date of the Guaranteed Debt Securities held by such Holder, or to institute
suit for the enforcement of such payment on or after such due date, shall not
be impaired or affected without the consent of such Holder.
6.02 Subsidiary. The Guarantor represents that the
Issuer is the wholly-owned corporate subsidiary of the Guarantor and that
this Guarantee Agreement may reasonably be expected to benefit, directly or
indirectly, the Guarantor. The Guarantor further represents that the
consideration received for this Guarantee Agreement is reasonably worth at
least as much as the liability and obligation of the Guarantor under this
Guarantee Agreement.
6.03 Usurious Interest It is not the intention of the
Guarantee Trustee nor the Guarantor to obligate the Guarantor to pay interest
in excess of that legally permitted to be paid by the Guarantor under
applicable law and should it be determined that the Guarantor is required to
pay usurious interest on any Guaranteed Debt Security, the obligations of the
Guarantor shall be limited to paying the maximum rate permitted under said
applicable law. This provision shall not limit in any respect, other than
the payment of such interest as may be usurious, the obligation of the
Guarantor to pay the principal amount due plus other amounts due on the
Guaranteed Debt Securities.
6.04 Successors and Assigns. All guarantees and
agreements contained in this Guarantee Agreement shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Guaranteed Debt Securities then
outstanding; provided, however, that, the obligations of the Guarantor under
this Guarantee Agreement may not be assigned or otherwise transferred without
the prior written consent of the Guarantee Trustee and the Indenture Trustee
except pursuant to any merger, consolidation, conveyance or other transfer
that would not constitute an Event of Default under the Indenture, in which
case no such prior written consent shall be required.
6.05 Notices. Any notice, request or other
communication required or permitted to be given hereunder shall be in
writing, duly signed by the party giving such notice, and delivered,
telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set
forth below or such other address as the Guarantor may give notice of to the
Guarantee Trustee and the Holders of the Guaranteed Debt Securities:
FPL Group, Inc.
700 Universe Boulevard
Juno Beach, Florida 33408
Facsimile No: (561) 694-6299
Attention: Treasurer
(b) if given to the Issuer, at the Issuer's address
set forth below or such other address as the Issuer may give notice of to the
Guarantee Trustee and the Holders:
FPL Group Capital Inc
700 Universe Boulevard
Juno Beach, Florida 33408
Facsimile No: (561) 694-6299
Attention: Treasurer
(c) if given to the Guarantee Trustee, to the address
set forth below or such other address as the Guarantee Trustee may give
notice of to the Guarantor and the Holders of the Guaranteed Debt Securities:
The Bank of New York
101 Barclay Street, Floor 21 W
New York, New York 10286
Facsimile No: (212) 815-5915
Attention: Corporate Trust Administration
(d) if given to the Indenture Trustee, to the address
set forth below or such other address as the Indenture Trustee may give
notice of to the Guarantor and the Holders of the Guaranteed Debt Securities:
The Bank of New York
101 Barclay Street, Floor 21 W
New York, New York 10286
Facsimile No: (212) 815-5915
Attention: Corporate Trust Administration
(e) if given to any Holder, at the address set forth
on the books and records of the Issuer.
All notices hereunder shall be deemed to have been given
when received in person, telecopied with receipt confirmed, or mailed by
first class mail, postage prepaid, except that if a notice or other document
is refused delivery or cannot be delivered because of a changed address of
which no notice was given, such notice or other document shall be deemed to
have been delivered on the date of such refusal or inability to deliver.
6.06 Benefit. This Guarantee Agreement is solely for
the benefit of the Indenture Trustee for the benefit of the Holders and,
subject to Section 3.01(a), is not separately transferable from the
Guaranteed Debt Securities.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
THIS GUARANTEE AGREEMENT is executed, in New York, New York,
as of the day and year first above written.
FPL Group, Inc.,
as Guarantor
By: DILEK SAMIL
-----------
Name: Dilek Samil
Title: Treasurer
The Bank of New York,
as Guarantee Trustee
By: ANNETTE L. KOS
--------------
Name: Annette L. Kos
Title: Assistant Vice President
FPL GROUP CAPITAL INC
OFFICER'S CERTIFICATE
Creating the 6-7/8% Debentures, Series due June 1, 2004
Dilek L. Samil, the Vice President, Treasurer and Assistant
Secretary 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 June 1, 1999 (the "Indenture") that:
1. The securities of the first series to be issued under the
Indenture shall be designated "6-7/8% Debentures, Series due June
1, 2004" (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 mature and the principal
shall be due and payable together with all accrued and unpaid
interest thereon on June 1, 2004;
3. The Debentures of the First Series shall bear interest as provided
in the form thereof set forth in Exhibit A hereto;
4. 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 hereto;
5. 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
Debentures 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;
6. 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;
7. The Debentures of the First Series shall be redeemable, at the
option of the Company, in whole at any time or in part from time
to time, on any date prior to maturity (each a "Redemption Date").
The Company shall give notice of its intent to redeem Debentures
of the First Series at least 30 days' prior to a Redemption Date.
If the Company redeems all or any part of the Debentures of the
First Series, it will pay a redemption price for such Debentures
of the First Series ("Redemption Price") equal to the sum of (1)
100% of the principal amount of the Debentures of the First Series
being redeemed plus (2) accrued and unpaid interest thereon, if
any, to the Redemption Date plus (3) any applicable "make-whole
premium." The Redemption Price for a Debenture shall never be
less than 100% of the principal amount of the Debenture plus
accrued and unpaid interest thereon to the Redemption Date.
The amount of the make-whole premium with respect to any
Debentures of the First Series to be redeemed shall be equal to
the excess, if any, of:
(1) the sum of the present values, calculated as of the
Redemption Date, of:
(a) each interest payment that, but for such
redemption, would have been payable on the
Debentures of the First Series being redeemed on
each interest payment date occurring after the
Redemption Date (excluding any accrued interest
for the period prior to the Redemption Date); and
(b) the principal amount that, but for such
redemption, would have been payable at the final
maturity of the Debentures of the First Series
being redeemed; over
(2) the principal amount of the Debentures of the First Series
being redeemed.
The present values of interest and principal payments referred to
in clause (1) above shall be determined in accordance with
generally accepted principles of financial analysis. Such present
values shall be calculated by discounting the amount of each
payment of interest or principal from the date that each such
payment would have been payable, but for the redemption, to the
Redemption Date at a discount rate equal to the Treasury Yield (as
defined below) plus 15 basis points.
The Company shall appoint an independent investment banking
institution of national standing to calculate the make-whole
premium; provided that Banc of America Securities LLC will make
such calculation if (1) the Company fails to make such appointment
at least 30 calendar days prior to the Redemption Date, or (2) the
institution so appointed is unwilling or unable to make such
calculation. If Banc of America Securities LLC is to make such
calculation but is unwilling or unable to do so, then the Trustee
shall appoint an independent investment banking institution of
national standing to make such calculation. In any case, the
institution making such calculation is referred to herein as an
"Independent Investment Banker."
For purposes of determining the make-whole premium, "Treasury
Yield" shall mean a rate of interest per annum equal to the weekly
average yield to maturity of United States Treasury Notes that
have a constant maturity that corresponds to the remaining term to
maturity of the Debentures of the First Series, calculated to the
nearest 1/12th of a year (the "Remaining Term"). The Independent
Investment Banker shall determine the Treasury Yield as of the
third business day immediately preceding the applicable Redemption
Date.
The Independent Investment Banker shall determine the weekly
average yields of United States Treasury Notes by reference to the
most recent statistical release published by the Federal Reserve
Bank of New York and designated "H.15(519) Selected Interest
Rates" or any successor release (the "H.15 Statistical Release").
If the H.15 Statistical Release sets forth a weekly average yield
for United States Treasury Notes having a constant maturity that
is the same as the Remaining Term, then the Treasury Yield shall
be equal to such weekly average yield. In all other cases, the
Independent Investment Banker shall calculate the Treasury Yield
by interpolation, on a straight-line basis, between the weekly
average yields on the United States Treasury Notes that have a
constant maturity closest to and greater than the Remaining Term
and the United States Treasury Notes that have a constant maturity
closest to and less than the Remaining Term (in each case as set
forth in the H.15 Statistical Release). The Independent
Investment Banker shall round any weekly average yields so
calculated to the nearest 1/100th of 1%, and shall round upward
for any figure of 1/200th of 1% or above. If weekly average
yields for United States Treasury Notes are not available in the
H.15 Statistical Release or otherwise, then the Independent
Investment Banker shall select comparable rates and calculate the
Treasury Yield by reference to those rates;
8. 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;
9. 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;
10. The Debentures of the First Series will be absolutely, irrevocably
and unconditionally guaranteed as to payment of principal,
interest and premium by FPL Group, Inc., as Guarantor (the
"Guarantor"), pursuant to a Guarantee Agreement, dated as of June
1, 1999, between the Guarantor and The Bank of New York (as
Guarantee Trustee) (the "Guarantee Agreement"). The following
shall constitute "Guarantor Events" with respect to the Debentures
of the First Series:
(A) the failure of the Guarantee Agreement to be in
full force and effect;
(B) the entry by a court having jurisdiction in the
premises of (i) a decree or order for relief in respect of the
Guarantor in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or (ii) a decree or order adjudging the
Guarantor a bankrupt or insolvent, or approving as properly filed
a petition by one or more entities other than the Guarantor
seeking reorganization, arrangement, adjustment or composition of
or in respect of the Guarantor under any applicable Federal or
State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official for the
Guarantor 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
(C) the commencement by the Guarantor 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 Guarantor 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 Guarantor 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 of the Guarantor.
Notwithstanding anything to the contrary contained in the
Debentures of the First Series, this certificate or in the
Indenture, the Company shall, if a Guarantor Event shall occur and
be continuing, redeem all of the Outstanding Debentures of the
First Series within 60 days after the occurrence of such Guarantor
Event at a redemption price equal to the principal amount thereof
plus accrued interest to the date of redemption unless, within 30
days after the occurrence of such Guarantor Event, Standard &
Poor's Ratings Group and Moody's Investors Service (if the
Debentures of the First Series are then rated by those rating
agencies, or, if the Debentures of the First Series are not then
rated by those rating agencies but are then rated by one or more
other nationally recognized rating agencies, then at least one of
those other nationally recognized rating agencies) shall have
reaffirmed in writing that, after giving effect to such Guarantor
Event, the credit rating on the Debentures of the First Series
shall be investment grade (i.e. in one of the four highest
categories, without regard to subcategories within such rating
categories, of such rating agency);
11. With respect to the Debentures of the First Series, each of the
following events shall be an additional Event of Default under the
Indenture:
(A) 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 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 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; and
(B) the failure of the Company to redeem the Outstanding
Debentures of the First Series as required by paragraph 10 hereof;
12. If a Guarantor Event occurs and the Company is not required to
redeem the Debentures of the First Series pursuant to paragraph 10
hereof, the Company will provide to the Trustee and the Holders of
the Debentures of the First Series annual and quarterly reports
containing the information that the Company would be required to
file with the Securities and Exchange Commission under Section 13
or Section 15(d) of the Securities Exchange Act of 1934 if it were
subject to the reporting requirements of those Sections. If the
Company is, at that time, subject to the reporting requirements of
those Sections, the filing of annual and quarterly reports with
the Securities and Exchange Commission pursuant to those Sections
will satisfy this requirement.
13. 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, 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.
14. 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;
15. 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;
16. 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;
17. In the opinion of the undersigned, he or she has made such
examination or investigation as is necessary to enable him or her
to express an informed opinion whether or not such covenants and
conditions have been complied with; and
18. 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 No. 1 have been
complied with.
IN WITNESS WHEREOF, I have executed this Officer's Certificate
this 29th day of June, 1999 in New York, New York.
DILEK SAMIL
-----------
Dilek L. Samil
Vice President, Treasurer
and Assistant Secretary
Exhibit A
[Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New
York corporation ("DTC"), to FPL Group Capital Inc 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
6-7/8% DEBENTURES, SERIES DUE JUNE 1, 2004
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
June 1, 2004, and to pay interest on said principal sum semi-annually on
June 1 and December 1 of each year (each an "Interest Payment Date") at the
rate of 6-7/8% per annum until the principal hereof is paid or made
available for payment. Interest on the Securities of this series will
accrue from and including June 29, 1999, to and excluding the first
Interest Payment Date, and thereafter will accrue from and including the
last Interest Payment Date to which interest has been paid or duly provided
for. No interest will accrue on the Securities with respect to the day on
which the Securities mature. 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 15th day 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 in New York, New York.
FPL GROUP CAPITAL INC
By:_______________________________________
[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
[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 June 1, 1999 (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 June 29, 1999 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.
This Security shall be redeemable either at the option of
the Company or pursuant to the requirements of the Indenture in whole at
any time, or in part from time to time, prior to maturity, upon notice
(which may be made subject to receipt of the redemption moneys by the
Trustee before the date fixed for redemption) mailed at least thirty (30)
days prior to the date fixed for redemption (the "Redemption Date"), at a
price equal to 100% of the principal amount thereof plus accrued and unpaid
interest, if any, to the Redemption Date plus any applicable make-whole
premium (the "Redemption Price"). In no event will the Redemption Price be
less than 100% of the principal amount of the Securities being redeemed
plus accrued and unpaid interest, if any, to the Redemption Date.
The make-whole premium will be calculated by an
independent investment banking institution of national standing appointed
by the Company or the Trustee, all as described in the Officer's
Certificate dated June 29, 1999, establishing the Securities.
The Securities will be absolutely, irrevocably and
unconditionally guaranteed as to payment of principal, interest and premium
by FPL Group, Inc., as Guarantor (the "Guarantor"), pursuant to a Guarantee
Agreement, dated as of June 1, 1999, between the Guarantor and The Bank of
New York (as Guarantee Trustee) (the "Guarantee Agreement"). The following
shall constitute "Guarantor Events" with respect to the Securities:
(A) the failure of the Guarantee Agreement to be in full
force and effect;
(B) the entry by a court having jurisdiction in the
premises of (i) a decree or order for relief in respect of the
Guarantor in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or (ii) a decree or order adjudging the
Guarantor a bankrupt or insolvent, or approving as properly filed
a petition by one or more entities other than the Guarantor
seeking reorganization, arrangement, adjustment or composition of
or in respect of the Guarantor under any applicable Federal or
State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official for the
Guarantor 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
(C) the commencement by the Guarantor 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 Guarantor 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 Guarantor 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
of the Guarantor.
Notwithstanding anything to the contrary contained in the Securities, the
Officer's Certificate dated June 29, 1999, establishing the Securities, or
in the Indenture, the Company shall, if a Guarantor Event shall occur and
be continuing, redeem all of the Outstanding Securities within 60 days
after the occurrence of such Guarantor Event at a redemption price equal to
the principal amount thereof plus accrued interest to the date of
redemption unless, within 30 days after the occurrence of such Guarantor
Event, Standard & Poor's Ratings Group and Moody's Investors Service (if
the Securities are then rated by those rating agencies, or, if the
Securities are not then rated by those rating agencies but are then rated
by one or more other nationally recognized rating agencies, then at least
one of those other nationally recognized rating agencies) shall have
reaffirmed in writing that, after giving effect to such Guarantor Event,
the credit rating on the Securities shall be investment grade (i.e. in one
of the four highest categories, without regard to subcategories within such
rating categories, of such rating agency).
If a Guarantor Event occurs and the Company is not
required to redeem the Securities pursuant to the preceding paragraph, the
Company will provide to the Trustee and the Holders of the Securities
annual and quarterly reports containing the information that the Company
would be required to file with the Securities and Exchange Commission under
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 if it
were subject to the reporting requirements of those Sections. If the
Company is, at that time, subject to the reporting requirements of those
Sections, the filing of annual and quarterly reports with the Securities
and Exchange Commission pursuant to those Sections will satisfy the
requirements of this paragraph.
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.
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.
FPL GROUP CAPITAL INC
OFFICER'S CERTIFICATE
Creating the 7-3/8% Debentures, Series due June 1, 2009
Dilek L Samil, the Vice President, Treasurer and Assistant
Secretary 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 June 1, 1999 (the "Indenture") that:
1. The securities of the second series to be issued under the
Indenture shall be designated "7-3/8% Debentures, Series due June
1, 2009" (the "Debentures of the Second Series"), and shall be
issued in substantially the form set forth in Exhibit A hereto;
2. The Debentures of the Second Series shall mature and the principal
shall be due and payable together with all accrued and unpaid
interest thereon on June 1, 2009;
3. The Debentures of the Second Series shall bear interest as
provided in the form thereof set forth in Exhibit A hereto;
4. Each installment of interest on a Debenture of the Second Series
shall be payable as provided in the form thereof set forth as
Exhibit A hereto;
5. Registration and registration of transfers and exchanges in
respect of the Debentures of the Second 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
Debentures of the Second 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 Second Series;
6. The Regular Record Date for the interest payable on any given
Interest Payment Date with respect to the Debentures of the Second
Series shall be the 15th day prior to such Interest Payment Date;
7. The Debentures of the Second Series shall be redeemable, at the
option of the Company, in whole at any time or in part from time
to time, on any date prior to maturity (each a "Redemption Date").
The Company shall give notice of its intent to redeem Debentures
of the Second Series at least 30 days' prior to a Redemption Date.
If the Company redeems all or any part of the Debentures of the
Second Series, it will pay a redemption price for such Debentures
of the Second Series ("Redemption Price") equal to the sum of (1)
100% of the principal amount of the Debentures of the Second
Series being redeemed plus (2) accrued and unpaid interest
thereon, if any, to the Redemption Date plus (3) any applicable
"make-whole premium." The Redemption Price for a Debenture shall
never be less than 100% of the principal amount of the Debenture
plus accrued and unpaid interest thereon to the Redemption Date.
The amount of the make-whole premium with respect to any
Debentures of the Second Series to be redeemed shall be equal to
the excess, if any, of:
(1) the sum of the present values, calculated as of the
Redemption Date, of:
(a) each interest payment that, but for such
redemption, would have been payable on the
Debentures of the Second Series being redeemed on
each interest payment date occurring after the
Redemption Date (excluding any accrued interest
for the period prior to the Redemption Date); and
(b) the principal amount that, but for such
redemption, would have been payable at the final
maturity of the Debentures of the Second Series
being redeemed; over
(2) the principal amount of the Debentures of the Second
Series being redeemed.
The present values of interest and principal payments referred to
in clause (1) above shall be determined in accordance with
generally accepted principles of financial analysis. Such present
values shall be calculated by discounting the amount of each
payment of interest or principal from the date that each such
payment would have been payable, but for the redemption, to the
Redemption Date at a discount rate equal to the Treasury Yield (as
defined below) plus 20 basis points.
The Company shall appoint an independent investment banking
institution of national standing to calculate the make-whole
premium; provided that Banc of America Securities LLC will make
such calculation if (1) the Company fails to make such appointment
at least 30 calendar days prior to the Redemption Date, or (2) the
institution so appointed is unwilling or unable to make such
calculation. If Banc of America Securities LLC is to make such
calculation but is unwilling or unable to do so, then the Trustee
shall appoint an independent investment banking institution of
national standing to make such calculation. In any case, the
institution making such calculation is referred to herein as an
"Independent Investment Banker."
For purposes of determining the make-whole premium, "Treasury
Yield" shall mean a rate of interest per annum equal to the weekly
average yield to maturity of United States Treasury Notes that
have a constant maturity that corresponds to the remaining term to
maturity of the Debentures of the Second Series, calculated to the
nearest 1/12th of a year (the "Remaining Term"). The Independent
Investment Banker shall determine the Treasury Yield as of the
third business day immediately preceding the applicable Redemption
Date.
The Independent Investment Banker shall determine the weekly
average yields of United States Treasury Notes by reference to the
most recent statistical release published by the Federal Reserve
Bank of New York and designated "H.15(519) Selected Interest
Rates" or any successor release (the "H.15 Statistical Release").
If the H.15 Statistical Release sets forth a weekly average yield
for United States Treasury Notes having a constant maturity that
is the same as the Remaining Term, then the Treasury Yield shall
be equal to such weekly average yield. In all other cases, the
Independent Investment Banker shall calculate the Treasury Yield
by interpolation, on a straight-line basis, between the weekly
average yields on the United States Treasury Notes that have a
constant maturity closest to and greater than the Remaining Term
and the United States Treasury Notes that have a constant maturity
closest to and less than the Remaining Term (in each case as set
forth in the H.15 Statistical Release). The Independent
Investment Banker shall round any weekly average yields so
calculated to the nearest 1/100th of 1%, and shall round upward
for any figure of 1/200th of 1% or above. If weekly average
yields for United States Treasury Notes are not available in the
H.15 Statistical Release or otherwise, then the Independent
Investment Banker shall select comparable rates and calculate the
Treasury Yield by reference to those rates;
8. No service charge shall be made for the registration of transfer
or exchange of the Debentures of the Second 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;
9. If the Company shall make any deposit of money and/or Eligible
Obligations with respect to any Debentures of the Second 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 Second 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 Second 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 Second 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;
10. The Debentures of the Second Series will be absolutely,
irrevocably and unconditionally guaranteed as to payment of
principal, interest and premium by FPL Group, Inc., as Guarantor
(the "Guarantor"), pursuant to a Guarantee Agreement, dated as of
June 1, 1999, between the Guarantor and The Bank of New York (as
Guarantee Trustee) (the "Guarantee Agreement"). The following
shall constitute "Guarantor Events" with respect to the Debentures
of the Second Series:
(A) the failure of the Guarantee Agreement to be in
full force and effect;
(B) the entry by a court having jurisdiction in the
premises of (i) a decree or order for relief in respect of the
Guarantor in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or (ii) a decree or order adjudging the
Guarantor a bankrupt or insolvent, or approving as properly filed
a petition by one or more entities other than the Guarantor
seeking reorganization, arrangement, adjustment or composition of
or in respect of the Guarantor under any applicable Federal or
State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official for the
Guarantor 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
(C) the commencement by the Guarantor 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 Guarantor 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 Guarantor 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 of the Guarantor.
Notwithstanding anything to the contrary contained in the
Debentures of the Second Series, this certificate or in the
Indenture, the Company shall, if a Guarantor Event shall occur and
be continuing, redeem all of the Outstanding Debentures of the
Second Series within 60 days after the occurrence of such
Guarantor Event at a redemption price equal to the principal
amount thereof plus accrued interest to the date of redemption
unless, within 30 days after the occurrence of such Guarantor
Event, Standard & Poor's Ratings Group and Moody's Investors
Service (if the Debentures of the Second Series are then rated by
those rating agencies, or, if the Debentures of the Second Series
are not then rated by those rating agencies but are then rated by
one or more other nationally recognized rating agencies, then at
least one of those other nationally recognized rating agencies)
shall have reaffirmed in writing that, after giving effect to such
Guarantor Event, the credit rating on the Debentures of the Second
Series shall be investment grade (i.e. in one of the four highest
categories, without regard to subcategories within such rating
categories, of such rating agency);
11. With respect to the Debentures of the Second Series, each of the
following events shall be an additional Event of Default under the
Indenture:
(A) 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 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 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; and
(B) the failure of the Company to redeem the Outstanding
Debentures of the Second Series as required by paragraph 10
hereof;
12. If a Guarantor Event occurs and the Company is not required to
redeem the Debentures of the Second Series pursuant to paragraph
10 hereof, the Company will provide to the Trustee and the Holders
of the Debentures of the Second Series annual and quarterly
reports containing the information that the Company would be
required to file with the Securities and Exchange Commission under
Section 13 or Section 15(d) of the Securities Exchange Act of 1934
if it were subject to the reporting requirements of those
Sections. If the Company is, at that time, subject to the
reporting requirements of those Sections, the filing of annual and
quarterly reports with the Securities and Exchange Commission
pursuant to those Sections will satisfy this requirement.
13. The Debentures of the Second Series will be initially issued in
global form registered in the name of Cede & Co. (as nominee for
The Depository Trust Company, New York, New York). The Debentures
of the Second Series in global form shall bear the depository
legend in substantially the form set forth in Exhibit A hereto.
The Debentures of the Second Series in global form will contain
restrictions on transfer, substantially as described in the form
set forth in Exhibit A hereto.
14. The Debentures of the Second Series shall have such other terms
and provisions as are provided in the form set forth in Exhibit A
hereto;
15. The undersigned has read all of the covenants and conditions
contained in the Indenture relating to the issuance of the
Debentures of the Second Series and the definitions in the
Indenture relating thereto and in respect of which this
certificate is made;
16. 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;
17. In the opinion of the undersigned, he or she has made such
examination or investigation as is necessary to enable him or her
to express an informed opinion whether or not such covenants and
conditions have been complied with; and
18. 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 Second Series
requested in the accompanying Company Order No. 1 have been
complied with.
IN WITNESS WHEREOF, I have executed this Officer's Certificate
this 29th day of June, 1999 in New York, New York.
DILEK SAMIL
--------------
Dilek L. Samil
Vice President, Treasurer
and Assistant Secretary
Exhibit A
[Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New
York corporation ("DTC"), to FPL Group Capital Inc 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
7-3/8% DEBENTURES, SERIES DUE JUNE 1, 2009
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
June 1, 2009, and to pay interest on said principal sum semi-annually on
June 1 and December 1 of each year (each an "Interest Payment Date") at the
rate of 7-3/8% per annum until the principal hereof is paid or made
available for payment. Interest on the Securities of this series will
accrue from and including June 29, 1999, to and excluding the first
Interest Payment Date, and thereafter will accrue from and including the
last Interest Payment Date to which interest has been paid or duly provided
for. No interest will accrue on the Securities with respect to the day on
which the Securities mature. 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 15th day 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 in New York, New York.
FPL GROUP CAPITAL INC
By:_______________________________________
[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
[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 June 1, 1999 (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 June 29, 1999 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.
This Security shall be redeemable either at the option of
the Company or pursuant to the requirements of the Indenture in whole at
any time, or in part from time to time, prior to maturity, upon notice
(which may be made subject to receipt of the redemption moneys by the
Trustee before the date fixed for redemption) mailed at least thirty (30)
days prior to the date fixed for redemption (the "Redemption Date"), at a
price equal to 100% of the principal amount thereof plus accrued and unpaid
interest, if any, to the Redemption Date plus any applicable make-whole
premium (the "Redemption Price"). In no event will the Redemption Price be
less than 100% of the principal amount of the Securities being redeemed
plus accrued and unpaid interest, if any, to the Redemption Date.
The make-whole premium will be calculated by an
independent investment banking institution of national standing appointed
by the Company or the Trustee, all as described in the Officer's
Certificate dated June 29, 1999, establishing the Securities.
The Securities will be absolutely, irrevocably and
unconditionally guaranteed as to payment of principal, interest and premium
by FPL Group, Inc., as Guarantor (the "Guarantor"), pursuant to a Guarantee
Agreement, dated as of June 1, 1999, between the Guarantor and The Bank of
New York (as Guarantee Trustee) (the "Guarantee Agreement"). The following
shall constitute "Guarantor Events" with respect to the Securities:
(A) the failure of the Guarantee Agreement to be in full
force and effect;
(B) the entry by a court having jurisdiction in the
premises of (i) a decree or order for relief in respect of the
Guarantor in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or (ii) a decree or order adjudging the
Guarantor a bankrupt or insolvent, or approving as properly filed
a petition by one or more entities other than the Guarantor
seeking reorganization, arrangement, adjustment or composition of
or in respect of the Guarantor under any applicable Federal or
State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official for the
Guarantor 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
(C) the commencement by the Guarantor 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 Guarantor 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 Guarantor 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
of the Guarantor.
Notwithstanding anything to the contrary contained in the Securities, the
Officer's Certificate dated June 29, 1999, establishing the Securities, or
in the Indenture, the Company shall, if a Guarantor Event shall occur and
be continuing, redeem all of the Outstanding Securities within 60 days
after the occurrence of such Guarantor Event at a redemption price equal to
the principal amount thereof plus accrued interest to the date of
redemption unless, within 30 days after the occurrence of such Guarantor
Event, Standard & Poor's Ratings Group and Moody's Investors Service (if
the Securities are then rated by those rating agencies, or, if the
Securities are not then rated by those rating agencies but are then rated
by one or more other nationally recognized rating agencies, then at least
one of those other nationally recognized rating agencies) shall have
reaffirmed in writing that, after giving effect to such Guarantor Event,
the credit rating on the Securities shall be investment grade (i.e. in one
of the four highest categories, without regard to subcategories within such
rating categories, of such rating agency).
If a Guarantor Event occurs and the Company is not
required to redeem the Securities pursuant to the preceding paragraph, the
Company will provide to the Trustee and the Holders of the Securities
annual and quarterly reports containing the information that the Company
would be required to file with the Securities and Exchange Commission under
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 if it
were subject to the reporting requirements of those Sections. If the
Company is, at that time, subject to the reporting requirements of those
Sections, the filing of annual and quarterly reports with the Securities
and Exchange Commission pursuant to those Sections will satisfy the
requirements of this paragraph.
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.
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.
