EXHIBIT 4(bf)
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PREFERRED STOCK GUARANTEE AGREEMENT
from
FPL GROUP, INC.
to
Holders of
FPL GROUP CAPITAL INC
_____________________ Serial Preferred Stock
Dated as of __________, 20__
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS..........................................................1
SECTION 1.01
Definitions...................................................1
ARTICLE II
GUARANTEE...........................................................2
SECTION 2.01
Guarantee.....................................................2
SECTION 2.02 Waiver of Notice and
Demand...................................3
SECTION 2.03 Absolute and
Unconditional....................................3
SECTION 2.04 Enforcement of
Guarantee......................................3
SECTION 2.05 Guarantee of
Payment..........................................3
SECTION 2.06
Subrogation...................................................3
SECTION 2.07 Reinstatement of
Obligations..................................4
SECTION 2.08 Certain Rights, Remedies and
Powers of Guaranteed Persons.....4
SECTION 2.9 Form of
Guarantee.............................................4
ARTICLE III WAIVER OF EVENTS OF
DEFAULT........................................4
SECTION 3.01 Events of Default;
Waiver.....................................4
ARTICLE IV LIMITATION OF TRANSACTIONS;
SUBORDINATION...........................5
SECTION 4.01 Limitation of
Transactions....................................5
SECTION 4.02
Subordination.................................................5
ARTICLE V
TERMINATION..........................................................6
SECTION 5.01
Termination...................................................6
ARTICLE VI
MISCELLANEOUS.......................................................6
SECTION 6.01
Amendments....................................................6
SECTION 6.02
Subsidiary....................................................6
SECTION 6.03 Successors and
Assigns........................................7
SECTION 6.04
Notices.......................................................7
SECTION 6.05
Benefit.......................................................7
SECTION 6.06
Interpretation................................................7
SECTION 6.07 Governing
Law.................................................8
SECTION 6.08
Separability..................................................8
SECTION 6.09
Counterparts..................................................8
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PREFERRED STOCK GUARANTEE AGREEMENT
This PREFERRED
STOCK GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as
of ______________________, is executed and
delivered by FPL Group, Inc., a
Florida corporation (the "Guarantor"), for
the benefit of the Holders (as
defined herein) from time to time of the
Preferred Stock (as defined herein) of
FPL Group Capital Inc, a Florida
corporation (the "Issuer");
WHEREAS,
pursuant to its Articles of Incorporation, as amended, the
Issuer
is authorized to issue up to ____________
shares of its _______ Serial Preferred
Stock, $0.01 par value, of which ______
shares of Preferred Stock (the
"Preferred Stock") are being issued as of
the date hereof; and
WHEREAS, as
incentive for the Holders to purchase Preferred Stock, the
Guarantor desires irrevocably and
unconditionally to agree, to the extent set
forth herein, to pay to the Holders of the
Preferred Stock the Guarantee
Payments (as defined herein) on the terms
and conditions set forth herein;
NOW, THEREFORE,
in consideration of the purchase of Preferred Stock, which
purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor
executes and delivers this Guarantee
Agreement for the benefit of the Holders
from time to time.
ARTICLE I
DEFINITIONS
SECTION 1.01
DEFINITIONS. As used in this Guarantee Agreement, the terms
set forth below shall, unless the context
otherwise requires, have the following
meanings.
"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.
"Articles of
Amendment" refers to the articles of amendment to the Articles
of Incorporation of the Issuer filed by the
Issuer with the Department of State
of the State of Florida which sets forth
the designation, preferences and
relative rights and other terms of the
Preferred Stock with respect to which a
Guarantee is granted hereunder.
"Common Stock"
means the common stock, $0.01 par value, of the Guarantor.
"Dividends"
means the periodic dividends payable to Holders of Preferred
Stock in accordance with the terms of the
Preferred Stock set forth in the
Articles of Amendment.
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"Dividend
Payments" means any accumulated and unpaid Dividends which have
been properly declared by the board of
directors of the Issuer on the Preferred
Stock out of funds legally available
therefor.
"Event of
Default" means a default by the Guarantor on any of its payment
obligations under this Guarantee
Agreement.
"Guarantee"
means the guarantee relating to the Preferred Stock to be
issued by the Guarantor as provided in this
Guarantee Agreement.
"Guarantee
Payments" shall mean the following payments or distributions,
without duplication, with respect to the
Preferred Stock then outstanding, to
the extent provided for in the Articles of
Amendment and to the extent not paid
when payable by the Issuer: (i) any
Dividend Payments, (ii) the Redemption Price
and (iii) the Liquidation Distribution.
"Holder" shall
mean any holder, as registered on the books and records of
the Issuer, of any outstanding Preferred
Stock with respect to which the
Guarantee is issued hereunder; provided,
however, that in determining whether
the holders of the requisite percentage of
Preferred Stock have given any
request, notice, consent or waiver
hereunder, "Holder" shall not include the
Guarantor or any entity which is an
Affiliate of the Guarantor.
"Liquidation
Distribution" means the aggregate of the liquidation amount
payable by the Issuer upon the Preferred
Stock in accordance with the terms set
forth in the Articles of Amendment upon a
voluntary or involuntary dissolution,
winding-up or liquidation of the
Issuer.
"Majority of the
Preferred Stock" means Holder(s) of outstanding Preferred
Stock voting together as a single class,
whose number of shares of Preferred
Stock represents more than 50% of the
number of all outstanding Preferred Stock.
"Person" means
any individual, corporation, limited liability company,
partnership, joint venture, trust, estate,
joint stock company, unincorporated
organization or government, or any agency
or political subdivision thereof, or
any other entity of whatever nature.
"Preferred
Stock" has the meaning set forth in the first WHEREAS clause
above.
"Redemption
Price" means the amount payable by the Issuer on redemption of
the Preferred Stock in accordance with the
terms set forth in the Articles of
Amendment upon shares of Preferred Stock
duly called for redemption.
ARTICLE II
GUARANTEE
SECTION 2.01
GUARANTEE. The Guarantor hereby fully and unconditionally
guarantees to each Holder the due and
punctual payment of the Guarantee
Payments, as and to the extent applicable
(without duplication of amounts
theretofore paid by the Issuer) when and as
the same shall become due and
payable, according to the terms of the
Preferred Stock as set forth in the
Articles of Amendment, regardless of any
defense, right of set-off or
counterclaim which the Issuer may have or
assert. In case of the failure of the
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Issuer or any successor thereto punctually
to pay any such Guarantee Payments,
as and to the extent applicable, the
Guarantor hereby agrees to cause any such
payment to be made punctually when and as
the same shall become due and payable,
as if such payment were made by the Issuer.
The Guarantor's obligation to make a
Guarantee Payment may be satisfied by
direct payment of the required amounts by
the Guarantor to or for the benefit of the
Holders or by payment by the Issuer
of such amounts to or for the benefit of
the Holders.
SECTION 2.02
WAIVER OF NOTICE AND DEMAND. The Guarantor hereby waives
notice of acceptance of this Guarantee
Agreement and of any liability to which
it applies or may apply, presentment,
demand for payment, any right to require a
proceeding first against the Issuer or any
other Person before proceeding
against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice
of redemption and all other notices and
demands.
SECTION 2.03
ABSOLUTE AND UNCONDITIONAL. The Guarantor hereby agrees that
its obligations under this Guarantee
Agreement shall be as if it were a
principal obligor and not merely a surety
and shall be absolute and
unconditional, irrespective of the
validity, regularity or enforceability of the
Preferred Stock, the absence of any action
to enforce the same, any waiver or
consent by the Holder of any shares of
Preferred Stock with respect to any terms
thereof, the recovery of any judgment
against the Issuer or any action to
enforce the same, or any circumstance which
might otherwise constitute a legal
or equitable discharge or defense of a
guarantor. The Guarantor acknowledges
that its obligations hereunder are
independent of the obligations of the Issuer
with respect to the Preferred Stock and
that the Guarantor shall be liable as a
principal obligor hereunder to make
Guarantee Payments pursuant to the terms of
this Guarantee Agreement notwithstanding
the occurrence of any event referred to
in this Section 2.03.
SECTION 2.04
ENFORCEMENT OF GUARANTEE. Any Holder of Preferred Stock may
institute a legal proceeding directly
against the Guarantor to enforce its
rights under this Guarantee Agreement,
without first instituting a legal
proceeding against the Issuer or any other
Person.
SECTION 2.05
GUARANTEE OF PAYMENT. This Guarantee Agreement creates a
guarantee of payment and not merely of
collection. This Guarantee Agreement will
not be discharged except (i) by payment of
the Dividend Payments, the Redemption
Price or the Liquidation Distribution, if
and as applicable, in full by the
Issuer, (ii) by payment of the Guarantee
Payments in full (without duplication
of amounts theretofore paid by the Issuer)
by the Guarantor or (iii) upon
termination of this Guarantee Agreement
pursuant to Section 5.01 hereof.
SECTION 2.06
SUBROGATION. The Guarantor shall be subrogated to all (if any)
rights of the Holders against the Issuer in
respect of any amounts paid to the
Holders by the Guarantor under this
Guarantee Agreement; provided, however, that
the Guarantor shall not (except to the
extent required by mandatory provisions
of law) be entitled to enforce or exercise
any rights which it may acquire by
way of subrogation or any indemnity,
reimbursement or other agreement, in all
cases as a result of payment under this
Guarantee Agreement, if, at the time of
any such payment, any amounts are due and
unpaid under this Guarantee Agreement.
If any amount shall be paid to the
Guarantor in violation of the preceding
sentence, the Guarantor agrees to hold such
amount in trust for the applicable
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Holders and to pay over such amount to or
for the applicable Holders.
SECTION 2.07
REINSTATEMENT OF OBLIGATIONS. If any Holder of Preferred Stock
is required by any court or otherwise to
return to the Issuer or the Guarantor,
or any custodian, receiver, liquidator,
assignee, trustee, sequestrator or
similar official acting in relation to the
Issue
