EXHIBIT 4(H)
FPL GROUP CAPITAL INC
OFFICER'S CERTIFICATE
CREATING THE % DEBENTURES, SERIES DUE
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, the of FPL Group
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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 series to be issued under the Indenture
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shall be designated " % Debentures, Series due " (the
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"Debentures of the Series"), and shall be issued in
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substantially the form set forth in Exhibit A hereto;
2. The Debentures of the Series shall mature and the principal
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shall be due and payable together with all accrued and unpaid interest
thereon on , ;
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3. The Debentures of the Series shall bear interest as provided in
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the form thereof set forth in Exhibit A hereto;
4. Each installment of interest on a Debenture of the Series shall
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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 Series may be effected at the office or
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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 Series
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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 agent 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 Series;
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6. The Regular Record Date for the interest payable on any given Interest
Payment Date with respect to the Debentures of the Series shall
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be the 15th day prior to such Interest Payment Date;
7. [Redemption provisions, if any, will be inserted]
8. No service charge shall be made for the registration of transfer or
exchange of the Debentures of the Series; provided, however,
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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;
<PAGE>
9. If the Company shall make any deposit of money and/or Eligible
Obligations with respect to any Debentures of the Series, or any
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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 Series, shall assume the obligation (which
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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 Series or portions thereof, all in accordance
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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 Series, or portions of the
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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 Series will be absolutely, irrevocably and
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unconditionally guaranteed as to payment of principal, interest and
premium, if any, 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");
11. With respect to the Debentures of the Series, each of the
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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
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<PAGE>
an Event of Default (as defined in the Guarantee Agreement),
shall have occurred and be continuing; and
(B) [additional Events of Default will be added, if applicable]
12. [The Debentures of the Series will be initially issued in global
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form registered in the name of Cede & Co. (as nominee for The
Depository Trust Company, New York, New York). The Debentures of the
Series in global form shall bear the depository legend in
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substantially the form set forth in Exhibit A hereto. The Debentures
of the Series in global form will contain restrictions on
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transfer, substantially as described in the form set forth in Exhibit
A hereto;]
13. The Debentures of the Series shall have such other terms and
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provisions as are provided in the form set forth in Exhibit A hereto;
14. The undersigned has read all of the covenants and conditions contained
in the Indenture relating to the issuance of the Debentures of the
Series and the definitions in the Indenture relating thereto and
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in respect of which this certificate is made;
15. The statements contained in this certificate are based upon the
familiarity of the undersigned with the Indenture, the documents
accompanying this certificate, and upon discussions by the undersigned
with officers and employees of the Company familiar with the matters
set forth herein;
16. In the opinion of the undersigned, he 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
17. In the opinion of the undersigned, such conditions and covenants and
conditions precedent, if any (including any covenants compliance with
which constitutes a condition precedent) to the authentication and
delivery of the Debentures of the Series requested in the
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accompanying Company Order No. have been complied with.
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<PAGE>
IN WITNESS WHEREOF, I have executed this Officer's Certificate this
day of , 2000 in New York, New York.
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<PAGE>
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.
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[FORM OF FACE OF DEBENTURE]
FPL GROUP CAPITAL INC
_% DEBENTURES, SERIES DUE
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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
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_ and to pay interest on said principal sum semi-annually on
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and of each year commencing (each an "Interest Payment Date") at
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the rate of % per annum until the principal hereof is paid or made
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available for payment. Interest on the Securities of this series will accrue
from and including , to and excluding the first Interest Payment Date,
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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.
<PAGE>
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:
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[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:
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Authorized Signatory
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<PAGE>
[FORM OF REVERSE OF DEBENTURE]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture (for Unsecured Debt Securities), dated as of 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 _________, 2000 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.
[Redemption provisions will be inserted]
The Securities will be absolutely, irrevocably and unconditionally
guaranteed as to payment of principal, interest and premium, if any, 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 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
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<PAGE>
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.
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