Exhibit
4(a)
This
instrument was prepared by:
|
|
EXECUTED
IN 60 COUNTERPARTS OF
WHICH
THIS IS COUNTERPART NO. 4
|
Paul
I. Cutler
Florida
Power & Light Company
700
Universe Boulevard
Juno
Beach, Florida 33408
|
|
|
FLORIDA
POWER & LIGHT COMPANY
to
DEUTSCHE
BANK TRUST COMPANY AMERICAS
(formerly
known as Bankers Trust Company)
As
Trustee under Florida Power & Light
Company’s
Mortgage and Deed of Trust,
Dated
as of January 1, 1944.
One
Hundred Fourteenth Supplemental Indenture
Relating
to $500,000,000 Principal Amount
of
First Mortgage Bonds, 5.96% Series
due
April 1, 2039
Dated
as of March 1, 2009
This
Supplemental Indenture has been executed in several counterparts, all of which
constitute but one and the same instrument. This Supplemental
Indenture has been recorded in several counties and documentary stamp taxes as
required by law in the amount of $1,750,000 and non-recurring intangible taxes
as required by law in the amount of $120,359.37 were paid on the Supplemental
Indenture recorded in the public records of Palm Beach County,
Florida.
Note to
Examiner
: The new bonds (“New Bonds”) being issued in
connection with this Supplemental Indenture are secured by real property and
personal property located both within Florida and outside of
Florida. The aggregate fair market value of the collateral exceeds
the aggregate principal amount of (y) the New Bonds plus (z) the other
outstanding bonds secured by the mortgage supplemented hereby and all previous
supplemental indentures thereto. The intangible tax has been computed
pursuant to Section 199.133 (2), Florida Statutes, by (i) determining the
percentage of the aggregate fair market value of the collateral constituting
real property situated in Florida and by multiplying that percentage times the
principal amount of the New Bonds (the result hereinafter defined as the “Tax
Base”) and (ii) multiplying the tax rate times the Tax Base.
ONE
HUNDRED FOURTEENTH SUPPLEMENTAL INDENTURE
INDENTURE,
dated as of the 1st
day of March, 2009, made and entered into by and between Florida Power &
Light Company, a corporation of the State of Florida, whose post office address
is 700 Universe Boulevard, Juno Beach, Florida 33408 (hereinafter sometimes
called
FPL
), and
Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company),
a corporation of the State of New York, whose post office address is 60 Wall
Street, 27th Floor, New York, New York 10005 (hereinafter called the Trustee),
as the one hundred fourteenth supplemental indenture (hereinafter called
the
One Hundred Fourteenth
Supplemental Indenture
) to the Mortgage and Deed of Trust, dated as of
January 1, 1944 (hereinafter called the
Mortgage
), made and entered
into by FPL, the Trustee and The Florida National Bank of Jacksonville, as
Co-Trustee (now resigned), the Trustee now acting as the sole trustee under the
Mortgage, which Mortgage was executed and delivered by FPL to secure the payment
of bonds issued or to be issued under and in accordance with the provisions
thereof, and which Mortgage was incorporated by reference in the One Hundredth
Sixth Supplemental Indenture and Mortgage, dated as of September 1, 2004,
and recorded in the Rockingham County, New Hampshire Registry of Deeds at Book
4362, Page 1879, reference to which Mortgage and to which One Hundredth Sixth
Supplemental Indenture and Mortgage is hereby made, this One Hundred Fourteenth
Supplemental Indenture being supplemental thereto;
Whereas,
by an instrument, dated as of April 15, 2002, filed with the Banking Department
of the State of New York, Bankers Trust Company effected a corporate name change
pursuant to which, effective such date, it is known as Deutsche Bank Trust
Company Americas; and
Whereas,
Section 8 of the Mortgage provides that the form of each series of bonds
(other than the first series) issued thereunder shall be established by
Resolution of the Board of Directors of FPL and that the form of such series, as
established by said Board of Directors, shall specify the descriptive title of
the bonds and various other terms thereof, and may also contain such provisions
not inconsistent with the provisions of the Mortgage as the Board of Directors
may, in its discretion, cause to be inserted therein expressing or referring to
the terms and conditions upon which such bonds are to be issued and/or secured
under the Mortgage; and
Whereas,
Section 120 of the Mortgage provides, among other things, that any power,
privilege or right expressly or impliedly reserved to or in any way conferred
upon FPL by any provision of the Mortgage, whether such power, privilege or
right is in any way restricted or is unrestricted, may be in whole or in part
waived or surrendered or subjected to any restriction if at the time
unrestricted or to additional restriction if already restricted, and FPL may
enter into any further covenants, limitations or restrictions for the benefit of
any one or more series of bonds issued thereunder, or FPL may cure any ambiguity
contained therein, or in any supplemental indenture, or may establish the terms
and provisions of any series of bonds other than said first series, by an
instrument in writing executed and acknowledged by FPL in such manner as would
be necessary to entitle a conveyance of real estate to be recorded in all of the
states in which any property at the time subject to the Lien of the Mortgage
shall be situated; and
Whereas,
FPL now desires to create the series of bonds described in Article I hereof
and to add to its covenants and agreements contained in the Mortgage certain
other covenants and agreements to be observed by it and to alter and amend in
certain respects the covenants and provisions contained in the Mortgage;
and
Whereas,
the execution and delivery by FPL of this One Hundred Fourteenth Supplemental
Indenture, and the terms of the bonds, hereinafter referred to in
Article I, have been duly authorized by the Board of Directors of FPL by
appropriate resolutions of said Board of Directors;
Now,
Therefore, This Indenture Witnesseth: That FPL, in consideration of
the premises and of One Dollar to it duly paid by the Trustee at or before the
ensealing and delivery of these presents, the receipt whereof is hereby
acknowledged, and in further evidence of assurance of the estate, title and
rights of the Trustee and in order further to secure the payment of both the
principal of and interest and premium, if any, on the bonds from time to time
issued under the Mortgage, according to their tenor and effect, and the
performance of all the provisions of the Mortgage (including any instruments
supplemental thereto and any modification made as in the Mortgage provided) and
of said bonds, hereby grants, bargains, sells, releases, conveys, assigns,
transfers, mortgages, pledges, sets over and confirms (subject, however, to
Excepted Encumbrances as defined in Section 6 of the Mortgage) unto
Deutsche Bank Trust Company Americas, as Trustee under the Mortgage, and to its
successor or successors in said trust, and to said Trustee and its successors
and assigns forever, all property, real, personal and mixed, acquired by FPL
after the date of the execution and delivery of the Mortgage (except any herein
or in the Mortgage, as heretofore supplemented, expressly excepted), now owned
(except any properties heretofore released pursuant to any provisions of the
Mortgage and in the process of being sold or disposed of by FPL) or, subject to
the provisions of Section 87 of the Mortgage, hereafter acquired by FPL and
wheresoever situated, including (without in anywise limiting or impairing by the
enumeration of the same the scope and intent of the foregoing) all lands, power
sites, flowage rights, water rights, water locations, water appropriations,
ditches, flumes, reservoirs, reservoir sites, canals, raceways, dams, dam sites,
aqueducts, and all rights or means for appropriating, conveying, storing and
supplying water; all rights of way and roads; all plants for the generation of
electricity by steam, water and/or other power; all power houses, gas plants,
street lighting systems, standards and other equipment incidental thereto,
telephone, radio and television systems, air-conditioning systems and equipment
incidental thereto, water works, water systems, steam heat and hot water plants,
substations, lines, service and supply systems, bridges, culverts, tracks, ice
or refrigeration plants and equipment, offices, buildings and other structures
and the equipment thereof; all machinery, engines, boilers, dynamos, electric,
gas and other machines, regulators, meters, transformers, generators, motors,
electrical, gas and mechanical appliances, conduits, cables, water, steam heat,
gas or other pipes, gas mains and pipes, service pipes, fittings, valves and
connections, pole and transmission lines, wires, cables, tools, implements,
apparatus, furniture, chattels, and choses in action; all municipal and other
franchises, consents or permits; all lines for the transmission and distribution
of electric current, gas, steam heat or water for any purpose including towers,
poles, wires, cables, pipes, conduits, ducts and all apparatus for use in
connection therewith; all real estate, lands, easements, servitudes, licenses,
permits, franchises, privileges, rights of way and other rights in or relating
to real estate or the occupancy of the same and (except as herein or in the
Mortgage, as heretofore supplemented, expressly excepted) all the right, title
and interest of FPL in and to all other property of any kind or nature
appertaining to and/or used and/or occupied and/or enjoyed in connection with
any property hereinbefore or in the Mortgage, as heretofore supplemented,
described.
Together
With all and singular the tenements, hereditaments and appurtenances belonging
or in anywise appertaining to the aforesaid property or any part thereof, with
the reversion and reversions, remainder and remainders and (subject to the
provisions of Section 57 of the Mortgage) the tolls, rents, revenues,
issues, earnings, income, products and profits thereof, and all the estate,
right, title and interest and claim whatsoever, at law as well as in equity,
which FPL now has or may hereinafter acquire in and to the aforesaid property
and franchises and every part and parcel thereof.
It
Is Hereby Agreed by FPL that, subject to the provisions of Section 87 of the
Mortgage, all the property, rights, and franchises acquired by FPL after the
date hereof (except any herein or in the Mortgage, as heretofore supplemented,
expressly excepted) shall be and are as fully granted and conveyed hereby and as
fully embraced within the Lien of the Mortgage and the lien and operation of the
One Hundred Sixth Supplemental Indenture and Mortgage, as if such property,
rights and franchises were now owned by FPL and were specifically described
herein and conveyed hereby.
Provided
that the following are not and are not intended to be now or hereafter granted,
bargained, sold, released, conveyed, assigned, transferred, mortgaged, pledged,
set over or confirmed hereunder and are hereby expressly excepted from the Lien
and operation of this One Hundred Fourteenth Supplemental Indenture and
from the Lien and operation of the Mortgage, as heretofore supplemented, viz:
(1) cash, shares of stock, bonds, notes and other obligations and other
securities not hereafter specifically pledged, paid, deposited, delivered or
held under the Mortgage or covenanted so to be; (2) merchandise, equipment,
materials or supplies held for the purpose of sale in the usual course of
business and fuel (including Nuclear Fuel unless expressly subjected to the Lien
and operation of the Mortgage by FPL in a future Supplemental Indenture), oil
and similar materials and supplies consumable in the operation of any properties
of FPL; rolling stock, buses, motor coaches, automobiles and other vehicles;
(3) bills, notes and accounts receivable, and all contracts, leases and
operating agreements not specifically pledged under the Mortgage or covenanted
so to be; (4) the last day of the term of any lease or leasehold which may
hereafter become subject to the Lien of the Mortgage; (5) electric energy,
gas, ice, and other materials or products generated, manufactured, produced or
purchased by FPL for sale, distribution or use in the ordinary course of its
business; all timber, minerals, mineral rights and royalties; (6) FPL’s
franchise to be a corporation; and (7) the properties already sold or in
the process of being sold by FPL and heretofore released from the Mortgage and
Deed of Trust, dated as of January 1, 1926, from Florida Power &
Light Company to Bankers Trust Company and The Florida National Bank of
Jacksonville, trustees, and specifically described in three separate releases
executed by Bankers Trust Company and The Florida National Bank of
Jacksonville, dated July 28, 1943, October 6, 1943 and
December 11, 1943, which releases have heretofore been delivered by
the said trustees to FPL and recorded by FPL among the Public Records of all
Counties in which such properties are located; provided, however, that the
property and rights expressly excepted from the Lien and operation of the
Mortgage in the above subdivisions (2) and (3) shall (to the extent permitted by
law) cease to be so excepted in the event and as of the date that the Trustee or
a receiver or trustee shall enter upon and take possession of the Mortgaged and
Pledged Property in the manner provided in Article XIII of the Mortgage by
reason of the occurrence of a Default as defined in Section 65
thereof.
To
Have And To Hold all such properties, real, personal and mixed, granted,
bargained, sold, released, conveyed, assigned, transferred, mortgaged, pledged,
set over or confirmed by FPL as aforesaid, or intended so to be, unto Deutsche
Bank Trust Company Americas, the Trustee, and its successors and assigns
forever.
In
Trust Nevertheless, for the same purposes and upon the same terms, trusts and
conditions and subject to and with the same provisos and covenants as are set
forth in the Mortgage, as heretofore supplemented, this One Hundred Fourteenth
Supplemental Indenture being supplemental thereto.
And
It Is Hereby Covenanted by FPL that all terms, conditions, provisos, covenants
and provisions contained in the Mortgage shall affect and apply to the property
hereinbefore described and conveyed and to the estate, rights, obligations and
duties of FPL and the Trustee and the beneficiaries of the trust with respect to
said property, and to the Trustee and its successors as Trustee of said property
in the same manner and with the same effect as if said property had been owned
by FPL at the time of the execution of the Mortgage, and had been specifically
and at length described in and conveyed to said Trustee, by the Mortgage as a
part of the property therein stated to be conveyed.
With
respect to the Property, as defined below, located in New Hampshire, FPL makes
the “mortgage covenants”, as this term is defined in the New Hampshire statute
(New Hampshire Revised Statutes Annotated §477:29,1). The “
Property
” means the real
property interests described in that certain easement deed from FPL Energy
Seabrook, LLC to FPL, dated June 1, 2004 and recorded in the Rockingham
County Registry of Deeds (the “
Registry
”) at Book 4304, Page
945 and in the acquisition from FPL Energy Seabrook, LLC of certain fixtures
described in that certain Deed of Transfer dated June 1, 2004 and recorded
in the Registry at Book 4304, Page 950.
FPL
further covenants and agrees to and with the Trustee and its successors in said
trust under the Mortgage, as follows:
ARTICLE
I
One
Hundred Eleventh Series of Bonds
Section
1.
(I) There
shall be a series of bonds designated “5.96% Series due April 1, 2039”,
herein sometimes referred to as the “
One Hundred Eleventh Series
”,
each of which shall also bear the descriptive title First Mortgage Bond, and the
form thereof, which shall be established by Resolution of the Board of Directors
of FPL, shall contain suitable provisions with respect to the matters
hereinafter in this Section specified. Bonds of the One Hundred
Eleventh Series shall mature on April 1, 2039 and shall be issued as fully
registered bonds in denominations of One Thousand Dollars and, at the option of
FPL, in integral multiples of One Thousand Dollars (the exercise of such
option to be evidenced by the execution and delivery thereof); they shall bear
interest at the rate of 5.96% per annum, payable semi-annually on April 1
and October 1 of each year (each an “
Interest Payment Date
”)
commencing on October 1, 2009; the principal of and interest on each said
bond to be payable at the office or agency of FPL in the Borough of Manhattan,
The City of New York, in such coin or currency of the United States of America
as at the time of payment is legal tender for public and private
debts. Bonds of the One Hundred Eleventh Series shall be dated as in
Section 10 of the Mortgage provided. The record date for
payments of interest on any Interest Payment Date shall be the close of business
on (1) the business day immediately preceding such Interest Payment Date so long
as the bonds of the One Hundred Eleventh Series are held by a securities
depository in book-entry only form or (2) the 15th calendar day immediately
preceding each Interest Payment Date if the bonds of the One Hundred Eleventh
Series are not held by a securities depository in book-entry only
form. Interest on the bonds of the One Hundred Eleventh Series will
accrue from and including March 17, 2009 to but excluding October 1, 2009
and, thereafter, from and including the last Interest Payment Date to which
interest has been paid or duly provided for (and if no interest has been paid on
the bonds of the One Hundred Eleventh Series, from March 17, 2009) to, but
excluding, the next succeeding Interest Payment Date. No interest
will accrue on a bond of the One Hundred Eleventh Series for the day on which
such bond matures. The amount of interest payable for any period will
be computed on the basis of a 360-day year consisting of twelve 30-day
months. The amount of interest payable for any period shorter than a
full semi-annual period for which interest is computed will be computed on the
basis of the number of days in the period using 30-day calendar
months.
(II)
Bonds
of the One Hundred Eleventh Series shall be redeemable either at the option of
FPL or pursuant to the requirements of the Mortgage (including, among other
requirements, the application of cash delivered to or deposited with the Trustee
pursuant to the provisions of Section 64 of the Mortgage or with proceeds of
Released Property) in whole at any time, or in part from time to time, prior to
maturity, upon notice, as provided in Section 52 of the Mortgage, mailed at
least thirty (30) days prior to the date fixed for redemption (the “
Redemption Date
”), at a price
(the “
Redemption Price
”)
equal to 100% of the principal amount thereof plus accrued and unpaid interest,
if any, to the Redemption Date plus a premium, if any (the “
Make-Whole
Premium
”). In no event will the Redemption Price be less than
100% of the principal amount of the bonds of the One Hundred Eleventh Series
being redeemed plus accrued and unpaid interest, if any, to, but excluding, the
Redemption Date.
The
amount of the Make-Whole Premium with respect to any bond of the One Hundred
Eleventh Series (or portion thereof) to be redeemed will 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 bond of the One Hundred Eleventh Series (or portion thereof) 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 bond of the One Hundred Eleventh Series (or
portion thereof) being redeemed;
over
|
(2)
|
the
principal amount of the bond of the One Hundred Eleventh Series (or
portion thereof) being redeemed.
|
The
present values of interest and principal payments referred to in clause (1)
above will be determined in accordance with generally accepted principles of
financial analysis. Such present values will 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 35 basis points.
The
Make-Whole Premium will be calculated by an independent investment banking
institution of national standing appointed by FPL;
provided
that if FPL fails to
make such appointment at least 30 days prior to the Redemption Date, or if the
institution so appointed is unwilling or unable to make such calculation, such
calculation will be made by BNY Mellon Capital Markets, LLC, Calyon Securities
(USA) Inc., Greenwich Capital Markets, Inc., J.P. Morgan Securities Inc. or
Mitsubishi UFJ Securities (USA), Inc., or if such firms are unwilling or unable
to make such calculation, by an independent investment banking institution of
national standing appointed by the Trustee at the expense of FPL (in any such
case, an “
Independent
Investment Banker
”).
For
purposes of determining the Make-Whole Premium, “
Treasury Yield
” means 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 bonds of the One Hundred Eleventh Series to be
redeemed, calculated to the nearest 1/12th of a year (the “
Remaining
Term
”). The Independent Investment Banker will determine the
Treasury Yield as of the third business day immediately preceding the applicable
Redemption Date.
The
weekly average yields of United States Treasury Notes will be determined 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 the United States Treasury Notes having a constant maturity
that is the same as the Remaining Term, then the Treasury Yield will be equal to
such weekly average yield. In all other cases, the Treasury Yield
will be calculated 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). Any weekly average yields so calculated by interpolation
will be rounded to the nearest 1/100th of 1%, with any figure of 1/200th of 1%
or above being rounded upward. If weekly average yields for United
States Treasury Notes are not available in the H.15 Statistical Release or
otherwise, then the Treasury Yield will be calculated by interpolation of
comparable rates selected by the Independent Investment Banker.
(III)
At
the option of the registered owner any bonds of the One Hundred Eleventh Series,
upon surrender thereof for exchange at the office or agency of FPL in the
Borough of Manhattan, The City of New York, together with a written instrument
of transfer wherever required by FPL, duly executed by the registered owner or
by his duly authorized attorney, shall (subject to the provisions of
Section 12 of the Mortgage) be exchangeable for a like aggregate principal
amount of bonds of the same series of other authorized
denominations.
Bonds
of the One Hundred Eleventh Series shall be transferable (subject to the
provisions of Section 12 of the Mortgage) at the office or agency of FPL in
the Borough of Manhattan, The City of New York.
Upon
any exchange or transfer of bonds of the One Hundred Eleventh Series, FPL may
make a charge therefor sufficient to reimburse it for any tax or taxes or other
governmental charge, as provided in Section 12 of the Mortgage, but FPL hereby
waives any right to make a charge in addition thereto for any exchange or
transfer of bonds of the One Hundred Eleventh Series.
ARTICLE
II
Dividend
Covenant
Section
2.
Section
3 of the Third Supplemental Indenture, as heretofore amended, is hereby further
amended by inserting the words “or One Hundred Eleventh Series” immediately
before the words “remain Outstanding”.
ARTICLE
III
Miscellaneous
Provisions
Section
3.
Subject
to the amendments provided for in this One Hundred Fourteenth Supplemental
Indenture, the terms defined in the Mortgage, as heretofore supplemented, shall,
for all purposes of this One Hundred Fourteenth Supplemental Indenture, have the
meanings specified in the Mortgage, as heretofore supplemented.
Section
4.
The
holders of bonds of the One Hundred Eleventh Series consent that FPL may, but
shall not be obligated to, fix a record date for the purpose of determining the
holders of bonds of the One Hundred Eleventh Series entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, those
persons who were holders at such record date (or their duly designated proxies),
and only those persons, shall be entitled to consent to such amendment,
supplement or waiver or to revoke any consent previously given, whether or not
such persons continue to be holders after such record date. No such
consent shall be valid or effective for more than 90 days after such record
date.
Section
5.
The
Trustee hereby accepts the trust herein declared, provided, created or
supplemented and agrees to perform the same upon the terms and conditions herein
and in the Mortgage, as heretofore supplemented, set forth and upon the
following terms and conditions:
The
Trustee shall not be responsible in any manner whatsoever for or in respect of
the validity or sufficiency of this One Hundred Fourteenth Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made by FPL solely. In general, each and every term and
condition contained in Article XVII of the Mortgage, as heretofore amended,
shall apply to and form part of this One Hundred Fourteenth Supplemental
Indenture with the same force and effect as if the same were herein set forth in
full with such omissions, variations and insertions, if any, as may be
appropriate to make the same conform to the provisions of this One Hundred
Fourteenth Supplemental Indenture.
Section
6.
Whenever
in this One Hundred Fourteenth Supplemental Indenture either of the parties
hereto is named or referred to, this shall, subject to the provisions of
Articles XVI and XVII of the Mortgage, as heretofore amended, be deemed to
include the successors and assigns of such party, and all the covenants and
agreements in this One Hundred Fourteenth Supplemental Indenture contained by or
on behalf of FPL, or by or on behalf of the Trustee, or either of them, shall,
subject as aforesaid, bind and inure to the respective benefits of the
respective successors and assigns of such parties, whether so expressed or
not.
Section
7.
Nothing
in this One Hundred Fourteenth Supplemental Indenture, expressed or implied, is
intended, or shall be construed, to confer upon, or to give to, any person, firm
or corporation, other than the parties hereto and the holders of the bonds and
coupons Outstanding under the Mortgage, any right, remedy or claim under or by
reason of this One Hundred Fourteenth Supplemental Indenture or any covenant,
condition, stipulation, promise or agreement hereof, and all the covenants,
conditions, stipulations, promises and agreements in this One Hundred
Fourteenth Supplemental Indenture contained by or on behalf of FPL shall be for
the sole and exclusive benefit of the parties hereto, and of the holders of the
bonds and coupons Outstanding under the Mortgage.
Section
8.
The
Mortgage, as heretofore supplemented and amended and as supplemented hereby, is
intended by the parties hereto, as to properties now or hereafter encumbered
thereby and located within the States of Florida, Georgia and New Hampshire, to
operate and is to be construed as granting a lien only on such properties and
not as a deed passing title thereto.
Section
9.
The
mortgage granted in the One Hundred Sixth Supplemental Indenture and Mortgage,
dated as of September 1, 2004, in the Seabrook Substation Property (as
defined in said One Hundred Sixth Supplemental Indenture and Mortgage), as
supplemented hereby, is upon the statutory conditions as defined in New
Hampshire Revised Statutes Annotated §477:29, and upon the further condition
that all covenants and agreements of FPL contained in said One Hundred
Sixth Supplemental Indenture and Mortgage and in the Mortgage, as supplemented
hereby, shall be kept and fully performed, for any breach of which the Trustee
shall have the statutory power of sale as defined in New Hampshire Revised
Statutes Annotated §477:29.
Section
10.
This
One Hundred Fourteenth Supplemental Indenture shall be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
In
Witness Whereof, FPL has caused its corporate name to be hereunto affixed, and
this instrument to be signed and sealed by its President or one of its Vice
Presidents, and its corporate seal to be attested by its Secretary or one of its
Assistant Secretaries for and in its behalf, and Deutsche Bank Trust Company
Americas has caused its corporate name to be hereunto affixed, and this
instrument to be signed and sealed by its Vice Presidents or Assistant Vice
Presidents, and its corporate seal to be attested by one of its Vice Presidents,
Assistant Vice Presidents, one of its Assistant Secretaries or one of its
Associates, all as of the day and year first above written.
Florida
Power & Light Company
|
By:
|
/s/
K. Michael Davis
|
|
K.
Michael Davis
Vice
President, Accounting
and
Chief Accounting Officer
9250
West Flagler Street
Miami,
FL 33102
|
Attest:
By:
|
/s/
Paul I. Cutler
|
|
Paul
I. Cutler
Treasurer
and Assistant Secretary
700
Universe Boulevard
Juno
Beach, FL 33408
|
Executed,
sealed and delivered by
Florida
Power & Light Company
in
the presence of:
Deutsche
Bank Trust Company Americas
As
Trustee
|
By:
|
/s/
Carol Ng
|
|
Carol
Ng
Vice
President
60
Wall Street, 27th Floor
New
York, NY 10005
|
By:
|
/s/
Wanda Camacho
|
|
Wanda
Camacho
Vice
President
60
Wall Street, 27th Floor
New
York, NY 10005
|
Attest:
/s/
Jennifer Davis
|
Jennifer
Davis
Assistant
Vice President
60
Wall Street, 27th Floor
New
York, NY 10005
|
Executed,
sealed and delivered by
Deutsche
Bank Trust Company Americas
in
the presence of:
/s/
Alyssa R. Sullivan
|
Alyssa
R. Sullivan
|
/s/
Anabella Roa
|
Anabella
Roa
|
State
of Florida
County
of Palm Beach
|
}
|
SS:
|
On
the 13th day of March, in the year 2009 before me personally came K. Michael
Davis, to me known, who, being by me duly sworn, did depose and say that he is
the Vice President, Accounting and Chief Accounting Officer of Florida Power
& Light Company, one of the corporations described in and which executed the
above instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation, and that he signed his name
thereto by like order.
I
Hereby Certify, that on this 13th day of March, 2009, before me personally
appeared K. Michael Davis and Paul I. Cutler, respectively, the Vice President,
Accounting and Chief Accounting Officer and the Treasurer and Assistant
Secretary of Florida Power & Light Company, a corporation under the laws of
the State of Florida, to me known to be the persons described in and who
executed the foregoing instrument and severally acknowledged the execution
thereof to be their free act and deed as such officers, for the uses and
purposes therein mentioned; and that they affixed thereto the official seal of
said corporation, and that said instrument is the act and deed of said
corporation.
Witness
my signature and official seal at Juno Beach, in the County of Palm Beach, and
State of Florida, the day and year last aforesaid.
/s/
Charlotte Colacino
|
Notary
Public – State of Florida
|
Charlotte
Colacino
Notary
Public – State of Florida
My
Commission Expires May 1, 2011
Commission
# DD 646085
Bonded
Through National Notary Assn.
|
State
of New York
County
of New York
|
}
|
SS:
|
On
the 11th day of March in the year 2009, before me personally came Carol Ng and
Wanda Camacho, to me known, who, being by me duly sworn, did depose and say that
they are respectively a Vice President and a Vice President of Deutsche Bank
Trust Company Americas, one of the corporations described in and which executed
the above instrument; that they know the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation, and that they signed their
names thereto by like order.
I
Hereby Certify, that on this 11th day of March, 2009, before me personally
appeared Carol Ng, Wanda Camacho and Jennifer Davis, respectively, a Vice
President, a Vice President and an Assistant Vice President of Deutsche Bank
Trust Company Americas, a corporation under the laws of the State of New York,
to me known to be the persons described in and who executed the foregoing
instrument and severally acknowledged the execution thereof to be their free act
and deed as such officers, for the uses and purposes therein mentioned; and that
they affixed thereto the official seal of said corporation, and that said
instrument is the act and deed of said corporation.
Witness
my signature and official seal at New York, in the County of New York, and State
of New York, the day and year last aforesaid.
/s/
Annie Jaghatspanyan
|
Annie
Jaghatspanyan
Notary
Public, State of New York
No
01JA6062022
Qualified
in New York County
Commission
Expires September 23, 2009
|
Exhibit
4(b)
FPL
GROUP CAPITAL INC
FPL
GROUP, INC.
OFFICER’S
CERTIFICATE
Creating
the Series F Junior Subordinated Debentures due 2069
Kathy
A. Beilhart, an Assistant Treasurer of FPL Group Capital Inc (the “
Company
”), and Kathy Beilhart,
an Assistant Treasurer of FPL Group, Inc. (the “
Guarantor
”), pursuant to the
authority granted in the accompanying Board Resolutions (all capitalized terms
used herein which are not defined herein or in Exhibit A hereto, 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, do hereby certify to The
Bank of New York Mellon (formerly known as The Bank of New York) (the “
Trustee
”), as Trustee under
the Indenture of the Company (For Unsecured Subordinated Debt Securities) dated
as of September 1, 2006 (the “
Indenture
”) that:
1.
|
The
securities to be issued under the Indenture shall be designated “Series F
Junior Subordinated Debentures due 2069” (the “
Debentures of the Sixth
Series
”) and shall be issued in substantially the form set forth as
Exhibit A hereto;
|
2.
|
The
Debentures of the Sixth Series shall be issued by the Company in the
initial aggregate principal amount of $375,000,000. Additional
Debentures of the Sixth Series, without limitation as to amount, having
substantially the same terms as the Outstanding Debentures of the Sixth
Series (except for the payment of interest accruing prior to the issue
date of the additional Debentures of the Sixth Series or except for the
first payment of interest following the issue date of the additional
Debentures of the Sixth Series) may also be issued by the Company pursuant
to the Indenture without the consent of the existing Holders of the
Debentures of the Sixth Series. Any such additional Debentures
of the Sixth Series shall be part of the same series as the Outstanding
Debentures of the Sixth Series;
|
3.
|
The
Debentures of the Sixth Series shall mature and the principal shall be due
and payable together with all accrued and unpaid interest thereon, on
March 1, 2069 (the “
Stated
Maturity
”);
|
4.
|
The
Debentures of the Sixth Series will bear interest at the rate of 8.75% per
annum, and will bear interest on any overdue principal and (to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest, at a rate equal to the interest rate
borne by the Debentures of the Sixth Series (“
Additional Interest
”),
compounded quarterly, payable (subject to the provisions contained in
paragraph 11 below) quarterly in arrears on the 1st day of March, June,
September and December of each year (each, an “
Interest Payment Date
”),
commencing on June 1, 2009 to the Persons in whose names the Debentures of
the Sixth Series are registered, subject to certain exceptions, at the
close of business on the Regular Record Date next preceding such Interest
Payment Date;
|
The
amount of interest payable for any quarterly period will be computed on the
basis of a 360-day year of twelve 30-day months (and for any period shorter than
a full quarterly period, on the basis of the actual number of days elapsed
during such period using 30-day calendar months). If an Interest
Payment Date, Redemption Date or the Stated Maturity of the Debentures of the
Sixth Series falls on a day that is not a Business Day, the payment of interest
and principal will be made on the next succeeding Business Day, and no interest
on such payment will accrue for the period from and after the Interest Payment
Date, Redemption Date or the Stated Maturity, as applicable;
5.
|
Registration
and registration of transfers and exchanges in respect of the Debentures
of the Sixth Series may be effected at the office or agency of the Company
in The City of New York, New York. Notices and demands to or
upon the Company in respect of the Debentures of the Sixth Series may be
served at the office or agency of the Company in The City of New York, 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 initially be the Security
Registrar and the Paying Agent for the Debentures of the Sixth
Series;
|
6.
|
So
long as Debentures of the Sixth Series are held by a securities depository
in book-entry form, the Regular Record Date for the interest payable on
any given Interest Payment Date with respect to the Debentures of the
Sixth Series shall be the close of business on the Business Day
immediately preceding such Interest Payment Date, provided that if any of
the Debentures of the Sixth Series are not held by a securities depository
in book-entry form, the Regular Record Date will be the close of business
on the 15th calendar day next preceding such Interest Payment
Date;
|
7.
|
The
Debentures of the Sixth Series will be redeemable at the option of the
Company before March 1, 2014, at any time in whole and from time to time
in part, upon not less than 30 nor more than 60 days’ notice given as
provided in the Indenture, at a Redemption Price described in the form of
the Debentures of the Sixth Series set forth as Exhibit A
hereto;
|
On
or after March 1, 2014, the Debentures of the Sixth Series will be redeemable at
the option of the Company, at any time in whole and from time to time in part,
upon not less than 30 nor more than 60 days’ notice given as provided in the
Indenture, at a Redemption Price equal to 100% of the principal amount thereof
plus accrued and unpaid interest thereon, including Additional Interest, if any,
to the Redemption Date;
8.
|
If
before March 1, 2014 a Tax Event (as defined in the form of the Debentures
of the Sixth Series set forth as Exhibit A hereto) shall occur and be
continuing, the Company shall have the right to redeem the Debentures of
the Sixth Series, in whole but not in part, at any time within 90 days
following the occurrence of the Tax Event, upon not less than 30 nor more
than 60 days’ notice given as provided in the Indenture, at a Redemption
Price equal to 100% of the principal amount thereof plus accrued and
unpaid interest thereon, including Additional Interest, if any, to the
Redemption Date;
|
9.
|
If
before March 1, 2014 a Rating Agency Event (as defined in the form of the
Debentures of the Sixth Series set forth as Exhibit A hereto) shall occur
and be continuing, the Company shall have the right to redeem the
Debentures of the Sixth Series, at any time in whole and from time to time
in part, upon not less than 30 nor more than 60 days’ notice given as
provided in the Indenture, at a Redemption Price described in the form of
the Debentures of the Sixth Series set forth as Exhibit A
hereto;
|
10.
|
So
long as any Debentures of the Sixth Series are Outstanding, the failure of
the Company to pay interest, including Additional Interest, if any, on any
Debentures of the Sixth Series within 30 days after the same becomes due
and payable (whether or not payment is prohibited by the subordination
provisions of Article Fourteen and Article Fifteen of the Indenture) shall
constitute an Event of Default; provided, however, that a valid deferral
of the interest payments by the Company as contemplated in Section 312 of
the Indenture and paragraph 11 of this Certificate shall not constitute a
failure to pay interest for this
purpose;
|
11.
|
Pursuant
to Section 312 of the Indenture, so long as no Event of Default under the
Indenture has occurred and is continuing with respect to the Securities of
any series, the Company shall have the right, at any time and from time to
time during the term of the Debentures of the Sixth Series, to defer the
payment of interest for a period not exceeding 10 consecutive years (each
period, commencing on the date that the first such payment would otherwise
be made, an “
Optional
Deferral Period
”); provided that no Optional Deferral Period shall
extend beyond the Stated Maturity or end on a day other than an Interest
Payment Date. During the Optional Deferral Period, interest
(calculated for each Interest Period in the manner provided for in Exhibit
A hereto, as if the interest payment had not been so deferred) will be
compounded quarterly. Any deferred interest on the Debentures
of the Sixth Series will accrue Additional Interest at a rate equal to the
interest rate borne by the Debentures of the Sixth Series, to the extent
permitted by applicable law. At the end of the Optional
Deferral Period, which shall be an Interest Payment Date, the Company
shall pay all interest accrued and unpaid thereon, including Additional
Interest accrued on the deferred interest, to the Person in whose name the
Debentures of the Sixth Series are registered at the close of business on
the Regular Record Date for the Interest Payment Date on which such
Optional Deferral Period ended; provided that any such accrued and unpaid
interest payable at the Stated Maturity or any Redemption Date will be
paid to the Person to whom principal is payable. With respect
to the Debentures of the Sixth Series, the term “
Interest Period
” shall
mean each period from, and including, an Interest Payment Date to, but
excluding, the next succeeding Interest Payment Date, except that the
first Interest Period shall commence on the date of original
issuance. However, during any such Optional Deferral Period,
neither the Guarantor nor the Company will, and each will cause their
majority-owned subsidiaries not to:
|
(A)
declare
or pay any dividend or distribution on the Guarantor’s or the Company’s capital
stock,
(B)
redeem,
purchase, acquire or make a liquidation payment with respect to any of the
Guarantor’s or the Company’s capital stock,
(C)
pay
any principal, interest or premium on, or repay, repurchase or redeem any of the
Guarantor’s or the Company’s debt securities that are equal in right of payment
with, or junior to, the Debentures of the Sixth Series or the Guarantee (as the
case may be), or
(D)
make
any payments with respect to any Guarantor or Company guarantee of debt
securities if such guarantee is equal or junior in right of payment to the
Debentures of the Sixth Series or the Guarantee (as the case may
be).
Subject
to the reservation of right to amend clause (f) below, as described in paragraph
17 hereof, the foregoing provisions shall not prevent or restrict the Guarantor
or the Company from making:
(a)
purchases,
redemptions or other acquisitions of its capital stock in connection with any
employment contract, benefit plan or other similar arrangement with or for the
benefit of employees, officers, directors or agents or a stock purchase or
dividend reinvestment plan, or the satisfaction of its obligations pursuant to
any contract or security outstanding on the date that the payment of interest is
deferred requiring it to purchase, redeem or acquire its capital
stock;
(b)
any
payment, repayment, redemption, purchase, acquisition or declaration of dividend
described in clauses (A) and (B) above as a result of a reclassification of its
capital stock, or the exchange or conversion of all or a portion of one class or
series of its capital stock for another class or series of its capital
stock;
(c)
the
purchase of fractional interests in shares of its capital stock pursuant to the
conversion or exchange provisions of its capital stock or the security being
converted or exchanged, or in connection with the settlement of stock purchase
contracts;
(d)
dividends
or distributions paid or made in its capital stock (or rights to acquire its
capital stock), or repurchases, redemptions or acquisitions of capital stock in
connection with the issuance or exchange of capital stock (or of securities
convertible into or exchangeable for shares of its capital stock) and
distributions in connection with the settlement of stock purchase
contracts;
(e)
redemptions,
exchanges or repurchases of, or with respect to, any rights outstanding under a
shareholder rights plan or the declaration or payment thereunder of a dividend
or distribution of or with respect to rights in the future;
(f)
payments
under any preferred trust securities guarantee or guarantee of subordinated
debentures executed and delivered by the Guarantor concurrently with the
issuance by a trust of any preferred trust securities, so long as the amount of
payments made on any preferred trust securities or subordinated debentures (as
the case may be) is paid on all preferred trust securities or subordinated
debentures (as the case may be) then outstanding on a pro rata basis in
proportion to the full distributions to which each series of preferred trust
securities or subordinated debentures (as the case may be) is then entitled if
paid in full;
(g)
payments
under any guarantee of junior subordinated debentures, which guarantee is
executed and delivered by the Guarantor (including a Guarantee under the
Indenture), so long as the amount of payments made on any junior subordinated
debentures is paid on all junior subordinated debentures then outstanding on a
pro rata basis in proportion to the full payment to which each series of junior
subordinated debentures is then entitled if paid in full;
(h)
dividends
or distributions by the Company on its capital stock to the extent owned by the
Guarantor; or
(i)
redemptions,
purchases, acquisitions or liquidation payments by the Company with respect to
its capital stock to the extent owned by the Guarantor.
Prior
to the termination of any such Optional Deferral Period, the Company may further
defer the payment of interest, provided that such Optional Deferral Period
together with all such previous and further deferrals of interest payments shall
not exceed 10 consecutive years at any one time or extend beyond the Stated
Maturity of the Debentures of the Sixth Series. Upon the termination
of any such Optional Deferral Period and the payment of all amounts then due,
including interest on deferred interest payments, the Company may elect to begin
a new Optional Deferral Period, subject to the above requirements. No
interest shall be due and payable during an Optional Deferral Period, except at
the end thereof. The Company will give the Trustee notice of its
election of an Optional Deferral Period at least 10 days and not more than 60
days before the applicable Interest Payment Date. The Trustee will
promptly forward notice of such election to each Holder of record of the
Debentures of the Sixth Series;
12.
|
The
Debentures of the Sixth Series will be initially issued in global form
registered in the name of Cede & Co. (as nominee for The Depository
Trust Company). The Debentures of the Sixth Series in global
form shall bear the depository legend in substantially the form set forth
as Exhibit A hereto. The Debentures of the Sixth Series in
global form will contain restrictions on transfer, substantially as
described in the form set forth as Exhibit A
hereto;
|
13.
|
No
service charge shall be made for the registration of transfer or exchange
of the Debentures of the Sixth 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;
|
14.
|
If
the Company shall make any deposit of money and/or Eligible Obligations
with respect to any Debentures of the Sixth 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 Sixth 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 Sixth 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 (i) the receipt by the
Company from, or the publication by, the Internal Revenue Service of a ruling or
(ii) a change in law occurring after the date of this certificate, the Holders
of such Debentures of the Sixth 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;
15.
|
The
Company reserves the right to require legends on Debentures of the Sixth
Series as it may determine are necessary to ensure compliance with the
securities laws of the United States and the states therein and any other
applicable laws;
|
16.
|
The
Company has previously reserved the right, without any consent, vote or
other action by Holders of the Debentures of the Sixth Series, or of any
other series of Securities issued after October 1, 2006, to amend the
Indenture as follows:
|
To
amend clause (6) of the second paragraph of Section 608 of the Indenture to read
as follows:
“(6)
payments under any preferred trust securities, subordinated debentures or junior
subordinated debentures, or any guarantee thereof, executed and delivered by the
Guarantor, the Company or any of their majority-owned subsidiaries, in each case
that rank equal in right of payment to the series of Securities with respect to
which the Company has elected to defer the payment of interest, or the related
guarantee (as the case may be), so long as the amount of payments made on
account of such securities or guarantees is paid on all such securities and
guarantees then outstanding on a pro rata basis in proportion to the full
payment to which each series of such securities and guarantees is then entitled
if paid in full;”
17.
|
The
Company reserves the right, without any consent, vote or other action by
Holders of the Debentures of the Sixth Series, or of any other series of
Securities issued after October 1, 2006, to amend this Officer’s
Certificate as follows:
|
To
amend clause (f) of paragraph 11 of this Officer’s Certificate and clause (f) of
the corresponding paragraph in the form of the Debentures of the Sixth Series
set forth as Exhibit A hereto to read as follows:
“(f)
payments under any preferred trust securities, subordinated debentures or junior
subordinated debentures, or any guarantee thereof, executed and delivered by the
Guarantor, the Company or any of their majority-owned subsidiaries, in each case
that rank equal in right of payment to the Debentures of the Sixth Series or the
related guarantee (as the case may be), so long as the amount of payments made
on account of such securities or guarantees is paid on all such securities and
guarantees then outstanding on a pro rata basis in proportion to the full
payment to which each series of such securities and guarantees is then entitled
if paid in full;”
18.
|
Notwithstanding
the provisions of Section 802 of the Indenture, the principal of and
accrued interest on the Debentures of the Sixth Series shall not be
declared immediately due and payable by reason of the occurrence and
continuation of an Event of Default specified in Section 801(c) of the
Indenture applicable to the Debentures of the Sixth Series, and any notice
of declaration of acceleration based on such Event of Default shall be
null and void with respect to the Debentures of the Sixth
Series. The Debentures of the Sixth Series will not be
considered Outstanding for the purpose of determining whether the required
vote described in Section 802 of the Indenture has been obtained for the
declaration of acceleration by reason of the occurrence and continuation
of an Event of Default specified in Section 801(c) of the Indenture
applicable to the Debentures of the Sixth
Series.
|
19.
|
Each
of the Company and the Guarantor agrees, and by acceptance of the
Debentures of the Sixth Series, each Holder will be deemed to have agreed,
to treat the Debentures of the Sixth Series as indebtedness for United
States federal tax purposes.
|
20.
|
The
Debentures of the Sixth Series shall have such other terms and provisions
as are provided in the form set forth as Exhibit A
hereto;
|
21.
|
The
undersigned has read all of the covenants and conditions contained in the
Indenture relating to the issuance of the Debentures of the Sixth Series
and the definitions in the Indenture relating thereto and in respect of
which this certificate is made;
|
22.
|
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;
|
23.
|
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 as to whether or not such covenants and conditions have been
complied with; and
|
24.
|
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 Sixth Series requested in the
accompanying Company Order No. 6 and Guarantor Order No. 6, have been
complied with.
|
IN
WITNESS WHEREOF, I have executed this Officer’s Certificate on behalf of the
Company this 19th day of March, 2009 in New York, New York.
/s/
Kathy A. Beilhart
|
Kathy
A. Beilhart
Assistant
Treasurer, FPL Group Capital
Inc
|
IN
WITNESS WHEREOF, I have executed this Officer’s Certificate on behalf of the
Guarantor this 19th day of March, 2009 in New York, New York.
/s/
Kathy A. Beilhart
|
Kathy
A. Beilhart
Assistant
Treasurer, FPL Group, Inc.
|
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.]
[FORM
OF FACE OF JUNIOR SUBORDINATED DEBENTURE]
FPL
GROUP CAPITAL INC
SERIES
F JUNIOR SUBORDINATED DEBENTURES DUE 2069
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 March 1, 2069 (the “
Stated
Maturity
”). The Company further promises to pay to the
registered Holder of this Security (a) interest on said principal sum (subject
to deferral as set forth herein) at the rate of 8.75% per annum, in like coin or
currency, quarterly in arrears on the 1st day of March, June, September and
December of each year (each an “
Interest Payment Date
”)
commencing June 1, 2009, from the Interest Payment Date next preceding the date
hereof to which interest has been paid or duly provided for (unless (i) no
interest has yet been paid or duly provided for on this Security, in which case
from March 19, 2009, or (ii) the date hereof is before an Interest Payment Date
but after the Regular Record Date (as defined below) next preceding such
Interest Payment Date, in which case from such following Interest Payment Date;
provided, however, that if the Company shall default in payment of the interest
due on such following Interest Payment Date, then from the next preceding
Interest Payment Date to which interest has been paid or duly provided for or if
no interest has yet been paid or duly provided for on this Security, in which
case from March 19, 2009), until the principal hereof is paid or duly provided
for, plus (b) Additional Interest, as defined in the Officer’s Certificate, to
the extent permitted by applicable law, on any interest payment that is not made
on the applicable Interest Payment Date, which shall accrue at a rate equal to
the interest rate borne by this Security, compounded quarterly. No
interest will accrue on the Securities of this series with respect to the day on
which the Securities of this series 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 payable to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on the “
Regular Record Date
” for such
interest installment which shall be the close of business on the Business Day
immediately preceding such Interest Payment Date so long as the Securities are
held by a securities depository in book-entry form, provided that if the
Securities are not held by a securities depository in book-entry form, the
Regular Record Date will be the close of business on the 15th calendar day next
preceding such Interest Payment Date, and provided further that interest payable
at the Stated Maturity or on any Redemption Date will be paid to the Person to
whom principal is payable. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder of this
Security 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, if any, 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
or by a wire transfer to an account designated by the Person entitled
thereto. The amount of interest payable on this Security will be
computed on the basis of a 360-day year of twelve 30-day months (and for any
period shorter than a full quarterly period, on the basis of the actual number
of days elapsed during such period using 30-day calendar months).
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 MELLON, as Trustee
|
By:
|
|
|
Authorized
Signatory
|
[FORM
OF GUARANTEE]
FPL
GROUP, INC., a corporation organized under the laws of the State of Florida (the
“
Guarantor
”, which term
includes any successor under the Indenture (the “
Indenture
”) referred to in the
Security upon which this Guarantee is endorsed), for value received, hereby
unconditionally and irrevocably guarantees to the Holder of the Security upon
which this Guarantee is endorsed, the due and punctual payment of the principal
of, and premium, if any, and interest, including Additional Interest, if any, on
such Security when and as the same shall become due and payable, whether at the
Stated Maturity, by declaration of acceleration, call for redemption, or
otherwise, in accordance with the terms of such Security and of the Indenture
regardless of any defense, right of set-off or counterclaim that the Guarantor
may have (except the defense of payment). In case of the failure of
the Company punctually to make any such payment, the Guarantor hereby agrees to
cause such payment to be made punctually when and as the same shall become due
and payable, whether at the Stated Maturity or by declaration of acceleration,
call for redemption or otherwise, and as if such payment were made by the
Company. The Guarantor’s obligation to make a guarantee payment may
be satisfied by direct payment of the required amounts by the Guarantor to the
Holder of the Security or to a Paying Agent, or by causing the Company to pay
such amount to such Holder or a Paying Agent.
The
Guarantor hereby agrees that its payment obligations hereunder shall be absolute
and unconditional irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of such Security or the Indenture, any failure
to enforce the provisions of such Security or the Indenture, or any waiver,
modification or indulgence granted to the Company with respect thereto (except
that the Guarantor will have the benefit of any waiver, modification or
indulgence granted to the Company in accordance with the Indenture), by the
Holder of such Security or the Trustee or any other circumstance which may
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor; provided, however, that notwithstanding the foregoing, no such
waiver, modification or indulgence shall, without the consent of the Guarantor,
increase the principal amount of such Security, or increase the interest rate
thereon (including Additional Interest, if any), or change any redemption
provisions thereof (including any change to increase any premium payable upon
redemption thereof) or change the Stated Maturity thereof.
The
Guarantor hereby waives the benefits of diligence, presentment, demand for
payment, any requirement that the Trustee or the Holder of such Security exhaust
any right or take any action against the Company or any other Person, the filing
of claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest or notice
with respect to such Security or the indebtedness evidenced thereby and all
demands whatsoever, and covenants that this Guarantee will not be discharged in
respect of such Security except by complete performance of the payment
obligations contained in such Security and in this Guarantee. This
Guarantee shall constitute a guaranty of payment and not of
collection. The Guarantor hereby agrees that, in the event of a
default in payment of principal, or premium, if any, or interest, if any, on
such Security, whether at its Stated Maturity, by declaration of acceleration,
call for redemption, or otherwise, legal proceedings may be instituted by the
Trustee on behalf of, or by, the Holder of such Security, subject to the terms
and conditions set forth in the Indenture, directly against the Guarantor to
enforce this Guarantee without first proceeding against the
Company.
The
obligations of the Guarantor hereunder with respect to such Security shall be
continuing and irrevocable until the date upon which the entire principal of,
premium, if any, and interest, including Additional Interest, if any, on such
Security has been, or has been deemed pursuant to the provisions of Article
Seven of the Indenture to have been, paid in full or otherwise
discharged.
The
obligations evidenced by this Guarantee are, to the extent provided in the
Indenture, subordinated and subject in right of payment to the prior payment in
full of all Senior Indebtedness of the Guarantor, and this Guarantee is issued
subject to the provisions of the Indenture with respect thereto. Each
Holder of a Security upon which this Guarantee is endorsed, by accepting the
same, (a) agrees to and shall be bound by such provisions, (b) authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such
purposes. Each Holder hereof, by his acceptance hereof, hereby waives
all notice of the acceptance of the subordination provisions contained herein
and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such Holder upon
said provisions.
The
Guarantor shall be subrogated to all rights of the Holder of a Security upon
which this Guarantee is endorsed against the Company in respect of any amounts
paid by the Guarantor on account of such Security pursuant to the provisions of
this Guarantee or the Indenture; provided, however, that the Guarantor shall not
be entitled to enforce or to receive any payments arising out of, or based upon,
such right of subrogation until the principal of, and premium, if any, and
interest, if any, on all Securities issued under the Indenture which are then
due and payable shall have been paid in full.
This
Guarantee shall remain in full force and effect and continue notwithstanding any
petition filed by or against the Company for liquidation or reorganization, the
Company becoming insolvent or making an assignment for the benefit of creditors
or a receiver or trustee being appointed for all or any significant part of the
Company’s property and assets, and shall, to the fullest extent permitted by
law, continue to be effective or reinstated, as the case may be, if at any time
payment of the Security upon which this Guarantee is endorsed, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by the Holder of such Security, whether as a “voidable preference,”
“fraudulent transfer,” or otherwise, all as though such payment or performance
had not been made. In the event that any such payment, or any part
thereof, is rescinded, reduced, restored or returned on such Security, such
Security shall, to the fullest extent permitted by law, be reinstated and deemed
paid only by such amount paid and not so rescinded, reduced, restored or
returned.
This
Guarantee shall not be valid or obligatory for any purpose until the certificate
of authentication of the Security upon which this Guarantee is endorsed shall
have been manually executed by or on behalf of the Trustee under the
Indenture.
All
terms used in this Guarantee which are defined in the Indenture shall have the
meanings assigned to them in such Indenture.
This
Guarantee shall be deemed to be a contract made under the laws of the State of
New York, and for all purposes shall be governed by and construed in accordance
with the laws of the State of New York without regard to conflicts of law
principles thereunder, except to the extent that the law of any other
jurisdiction shall be mandatorily applicable.
IN
WITNESS WHEREOF, the Guarantor has caused this instrument to be duly executed in
New York, New York.
[FORM
OF REVERSE OF JUNIOR SUBORDINATED 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 Subordinated Debt
Securities), dated as of September 1, 2006 (herein, together with any amendments
thereto, called the “
Indenture
”, which term shall
have the meaning assigned to it in such instrument), among the Company, FPL
Group, Inc. and The Bank of New York Mellon (formerly known as 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 March 19, 2009, creating the series designated on the face hereof
(herein called, the “
Officer’s
Certificate
”), for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Guarantor, 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.
In
addition to the option of the Company to redeem the Securities of this series in
connection with a Tax Event or a Rating Agency Event described below, this
Security shall be redeemable at the option of the Company in whole at any time,
or in part from time to time, prior to the Stated Maturity, upon notice, mailed
at least 30 but not more than 60 days prior to the date fixed for redemption
(the “
Redemption Date
”),
at a price (the “
Redemption
Price
”) as follows: (i) if redeemed prior to March 1, 2014, the
Redemption Price will be 100% of the principal amount thereof plus accrued and
unpaid interest, if any including Additional Interest, if any, to the Redemption
Date plus a premium, if any (the “
Make-Whole Premium
”), or (ii)
if redeemed on or after March 1, 2014, the Redemption Price will be 100% of the
principal amount thereof plus accrued and unpaid interest, if any including
Additional Interest, if any, to the Redemption Date. 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
amount of the Make-Whole Premium with respect to any Security of this series (or
portion thereof) to be redeemed will 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
Security of this series (or portion thereof) being redeemed on each Interest
Payment Date occurring during the period from the Redemption Date to March 1,
2014 (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
Stated Maturity of the Security of this series (or portion thereof) being
redeemed; over
(2) the
principal amount of the Security of this series (or portion thereof)being
redeemed.
The
present values of interest and principal payments referred to in clause (1)
above will be determined in accordance with generally accepted principles of
financial analysis. Such present values will 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 50 basis points.
The
Make-Whole Premium will be calculated by an independent investment banking
institution of national standing appointed by the Company;
provided
that if the Company
fails to make such appointment at least 30 days prior to the Redemption Date, or
if the institution so appointed is unwilling or unable to make such calculation,
such calculation will be made by Banc of America Securities LLC, Citigroup
Global Markets Inc., Morgan Stanley & Co. Incorporated, UBS Securities LLC
or Wachovia Capital Markets, LLC, or, if such firms are unwilling or unable to
make such calculation, by an independent investment banking institution of
national standing appointed by the Trustee in consultation with, and at the
expense of, the Company (in any such case, an “
Independent Investment
Banker
”).
For
purposes of determining the Make-Whole Premium, “
Treasury Yield
” means 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 March 1, 2014 of the Securities of this series to be redeemed,
calculated to the nearest 1/12th of a year (the “
Remaining
Term
”). The Treasury Yield will be determined as of the third
Business Day immediately preceding the applicable Redemption Date.
The
weekly average yields of United States Treasury Notes will be determined 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 the United States Treasury Notes having a constant maturity
that is the same as the Remaining Term, then the Treasury Yield will be equal to
such weekly average yield. In all other cases, the Treasury Yield
will be calculated 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). Any weekly average yields so calculated by interpolation
will be rounded to the nearest 1/100th of 1%, with any figure of 1/200th of 1%
or above being rounded upward. If weekly average yields for United
States Treasury Notes are not available in the H.15 Statistical Release or
otherwise, then the Treasury Yield will be calculated by interpolation of
comparable rates selected by the Independent Investment Banker.
If
at the time notice of redemption is given, the redemption moneys are not on
deposit with the Trustee, then the redemption shall be subject to their receipt
on or before the Redemption Date and such notice shall be of no effect unless
such moneys are received.
Upon
payment of the Redemption Price, on and after the Redemption Date interest will
cease to accrue on the Securities of this series or portions thereof called for
redemption.
If
before March 1, 2014 a Tax Event (as defined below) shall occur and be
continuing, the Company shall have the right to redeem this Security, in whole
but not in part, at any time within 90 days following the occurrence of the Tax
Event, at 100% of the principal amount thereof plus accrued and unpaid interest,
if any, including Additional Interest, if any, to the date fixed for
redemption.
“
Tax Event
” means the receipt
by the Guarantor or the Company of an Opinion of Counsel experienced in such tax
matters to the effect that, as a result of (a) any amendment to, clarification
of, or change (including any announced prospective change) in the laws or
treaties of the United States or any political subdivisions or taxing
authorities, or any regulations under such laws or treaties, (b) any judicial
decision or any official administrative pronouncement, ruling, regulatory
procedure, notice or announcement (including any notice or announcement of
intent to issue or adopt any such administrative pronouncement, ruling,
regulatory procedure or regulation) (each, an “
Administrative Action
”), (c)
any amendment to, clarification of, or change in the official position or the
interpretation of any such Administrative Action or judicial decision or any
interpretation or pronouncement that provides for a position with respect to
such Administrative Action or judicial decision that differs from the
theretofore generally accepted position, in each case by any legislative body,
court, governmental authority or regulatory body, irrespective of the time or
manner in which such amendment, clarification or change is introduced or made
known, or (d) threatened challenge asserted in writing in connection with an
audit of the Guarantor or the Company or any of their subsidiaries, or a
publicly-known threatened challenge asserted in writing against any other
taxpayer that has raised capital through the issuance of securities that are
substantially similar to the Securities of this series, which amendment,
clarification, or change is effective, or which Administrative Action is taken
or which judicial decision, interpretation or pronouncement is issued or
threatened challenge is asserted or becomes publicly-known, in each case after
March 12, 2009, there is more than an insubstantial risk that interest payable
by the Company on this Security is not deductible, or within 90 days would not
be deductible, in whole or in part, by the Company for United States Federal
income tax purposes.
If
before March 1, 2014 a Rating Agency Event (as defined below) shall occur and be
continuing, the Company shall have the right to redeem this Security, in whole
at any time, or in part from time to time, at 100% of the principal amount
thereof plus accrued and unpaid interest, if any, including Additional Interest,
if any, to the date fixed for redemption (“
Rating Agency Event Redemption
Date
”) plus a premium, if any (the “
Rating Agency Event Make-Whole
Premium
”). 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 Rating Agency Event Redemption
Date.
The
amount of the Rating Agency Event Make-Whole Premium with respect to any
Security of this series to be redeemed will be equal to the excess, if any,
of:
(1) the
sum of the present values, calculated as of the Rating Agency Event Redemption
Date, of:
(a) each
interest payment that, but for such redemption, would have been payable on the
Security of this series being redeemed on each Interest Payment Date occurring
after the Rating Agency Event Redemption Date to March 1, 2014 (excluding any
accrued interest for the period prior to the Rating Agency Event Redemption
Date); and
(b) the
principal amount that, but for such redemption, would have been payable at the
final maturity of the Security of this series being redeemed; over
(2) the
principal amount of the Security of this series being redeemed.
The
present values of interest and principal payments referred to in clause (1)
above will be determined in accordance with generally accepted principles of
financial analysis. Such present values will 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
Rating Agency Event Redemption Date at a discount rate equal to the Treasury
Yield (as defined above for the purposes of determining the Make-Whole Premium)
plus 50 basis points.
The
Rating Agency Event Make-Whole Premium will be calculated by the Independent
Investment Banker in the same manner as the Make-Whole Premium described
above.
“
Rating Agency Event
” means a
change in the methodology employed by any nationally recognized statistical
rating organization within the meaning of Section 3(a)(62) of the Securities
Exchange Act of 1934, as amended (a “
Rating Agency
”), that
currently publishes a rating for the Company or the Guarantor in assigning
equity credit to securities such as the Securities of this series, as such
methodology is in effect on March 12, 2009 (the "
current criteria
"), which
change results in (a) the length of time for which such current criteria are
scheduled to be in effect being shortened with respect to the Securities of this
series, or (b) a lower or higher equity credit being assigned by such Rating
Agency to the Securities of this series as of the date of such change than the
equity credit that would have been assigned to the Securities of this series as
of the date of such change by such Rating Agency pursuant to its current
criteria.
In
the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation
hereof.
The
indebtedness evidenced by this Security is, to the extent provided in the
Indenture, subordinated and subject in right of payment to the prior payment in
full of all Senior Indebtedness of the Company, and this Security is issued
subject to the provisions of the Indenture with respect thereto. Each
Holder of this Security, by accepting the same, (a) agrees to and shall be bound
by such provisions, (b) authorizes and directs the Trustee on his behalf to
take such action as may be necessary or appropriate to acknowledge or effectuate
the subordination so provided and (c) appoints the Trustee his attorney-in-fact
for any and all such purposes. Each Holder hereof, by his acceptance
hereof, hereby waives all notice of the acceptance of the subordination
provisions contained herein and in the Indenture by each holder of Senior
Indebtedness of the Company, whether now outstanding or hereafter incurred, and
waives reliance by each such Holder upon said provisions.
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, including the Officer’s Certificate described
above.
If
an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of and interest on the Securities of this series may
be declared due and payable in the manner and with the effect provided in the
Indenture; provided however, that the principal of and interest on the
Securities of this series shall not be declared due and payable by reason of the
occurrence and continuation of an Event of Default specified in Section 801(c)
of the Indenture applicable to the Securities of this series, and any notice of
declaration of acceleration based on such Event of Default shall be null and
void with respect to the Securities of this series. The Securities of
this series will not be considered Outstanding for the purpose of determining
whether the required vote described in Section 802 of the Indenture has been
obtained for the declaration of acceleration by reason of the occurrence and
continuation of an Event of Default specified in Section 801(c) of the Indenture
applicable to the Securities of this series.
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.
Pursuant
to Section 312 of the Indenture, so long as no Event of Default under the
Indenture has occurred and is continuing with respect to the Securities of any
series, the Company shall have the right, at any time and from time to time
during the term of the Securities of this series, to defer the payment of
interest for a period not exceeding 10 consecutive years (each period,
commencing on the date that the first such payment would otherwise be made, an
“
Optional Deferral
Period
”); provided that no Optional Deferral Period shall extend beyond
the Stated Maturity or end on a day other than an Interest Payment
Date. During the Optional Deferral Period, interest (calculated for
each Interest Period in the manner provided for on the face hereof, as if the
payment of interest had not been so deferred) will be compounded quarterly at
the rate of 8.75% per annum. Any deferred interest on the Securities
of this series will accrue Additional Interest at a rate equal to the interest
rate borne by the Securities of this series, to the extent permitted by
applicable law. At the end of the Optional Deferral Period, which
shall be an Interest Payment Date, the Company shall pay all interest accrued
and unpaid hereon, including Additional Interest accrued on the deferred
interest, to the Person in whose name the Securities of this series are
registered at the close of business on the Regular Record Date for the Interest
Payment Date on which such Optional Deferral Period ended; provided that any
such accrued and unpaid interest payable at the Stated Maturity or any
Redemption Date will be paid to the Person to whom principal is
payable. During any such Optional Deferral Period, neither the
Guarantor nor the Company will, and each will cause their majority-owned
subsidiaries not to (i) declare or pay any dividends or distributions on the
Guarantor’s or the Company’s capital stock, (ii) redeem, purchase, acquire or
make a liquidation payment with respect to any of the Guarantor’s or the
Company’s capital stock, (iii) pay any principal, interest or premium on, or
repay, repurchase or redeem any of the Guarantor’s or the Company’s debt
securities that are equal or junior in right of payment to the Securities of
this series or the Guarantee (as the case may be), or (iv) make any payments
with respect to any Guarantor or Company guarantee of debt securities if such
guarantee is equal or junior in right of payment to the Securities of this
series or the Guarantee (as the case may be).
Subject
to the reservation of right to amend clause (f) below, as described in paragraph
17 of the Officer’s Certificate, the foregoing provisions shall not prevent or
restrict the Guarantor or the Company from making:
(a)
purchases,
redemptions or other acquisitions of its capital stock in connection with any
employment contract, benefit plan or other similar arrangement with or for the
benefit of employees, officers, directors or agents or a stock purchase or
dividend reinvestment plan, or the satisfaction of its obligations pursuant to
any contract or security outstanding on the date that the payment of interest is
deferred requiring it to purchase, redeem or acquire its capital
stock;
(b)
any
payment, repayment, redemption, purchase, acquisition or declaration of dividend
described in clauses (i) and (ii) above as a result of a reclassification of its
capital stock, or the exchange or conversion of all or a portion of one class or
series of its capital stock for another class or series of its capital
stock;
(c)
the
purchase of fractional interests in shares of its capital stock pursuant to the
conversion or exchange provisions of its capital stock or the security being
converted or exchanged, or in connection with the settlement of stock purchase
contracts;
(d)
dividends
or distributions paid or made in its capital stock (or rights to acquire its
capital stock), or repurchases, redemptions or acquisitions of capital stock in
connection with the issuance or exchange of capital stock (or of securities
convertible into or exchangeable for shares of its capital stock) and
distributions in connection with the settlement of stock purchase
contracts;
(e)
redemptions,
exchanges or repurchases of, or with respect to, any rights outstanding under a
shareholder rights plan or the declaration or payment thereunder of a dividend
or distribution of or with respect to rights in the future;
(f)
payments
under any preferred trust securities guarantee or guarantee of subordinated
debentures executed and delivered by the Guarantor concurrently with the
issuance by a trust of any preferred trust securities, so long as the amount of
payments made on any preferred trust securities or subordinated debentures (as
the case may be) is paid on all preferred trust securities or subordinated
debentures (as the case may be) then outstanding on a pro rata basis in
proportion to the full distributions to which each series of preferred trust
securities or subordinated debentures (as the case may be) is then
entitled;
(g)
payments
under any guarantee of junior subordinated debentures, which guarantee is
executed and delivered by the Guarantor (including a Guarantee under the
Indenture), so long as the amount of payments made on any junior subordinated
debentures is paid on all junior subordinated debentures then outstanding on a
pro rata basis in proportion to the full payment to which each series of junior
subordinated debentures is then entitled;
(h)
dividends
or distributions by the Company on its capital stock to the extent owned by the
Guarantor; or
(i)
redemptions,
purchases, acquisitions or liquidation payments by the Company with respect to
its capital stock to the extent owned by the Guarantor.
Prior
to the termination of any such Optional Deferral Period, the Company may further
defer the payment of interest, provided that such Optional Deferral Period
together with all such previous and further deferrals of interest payments shall
not exceed 10 consecutive years at any one time or extend beyond the Stated
Maturity of the Securities of this series. Upon the termination of
any such Optional Deferral Period and the payment of all amounts then due,
including interest on deferred interest payments, the Company may elect to begin
a new Optional Deferral Period, subject to the above requirements. No
interest shall be due and payable during an Optional Deferral Period, except at
the end thereof. The Company shall give the Trustee notice of its
election of an Optional Deferral Period at least 10 days and not more than 60
days before the applicable Interest Payment Date. The Trustee will
promptly forward notice of such election to each holder of record of the
Securities of this series.
The
Securities of this series are issuable only in registered form without coupons
in denominations of $25 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.
Each
of the Company and the Guarantor has agreed, and by acceptance of this Security,
the Holder will be deemed to have agreed, to treat this Security as indebtedness
for United States federal tax purposes.
All
terms used in this Security which are not defined herein but are defined in the
Indenture and/or in the Officer’s Certificate shall have the meanings assigned
to them in the Indenture and/or in the Officer’s Certificate.
Exhibit
4(c)
This
REPLACEMENT
CAPITAL COVENANT
, dated March 19, 2009 (this “
Replacement Capital
Covenant
”), by FPL Group Capital Inc, a Florida corporation (together
with its successors and assigns, the “
Corporation
”), and FPL Group,
Inc., a Florida corporation (together with its successors and assigns, the
“
Guarantor
”), in favor
of and for the benefit of each Covered Debtholder (as defined
below).
Recitals
A
. On
the date hereof, the Corporation is issuing $375,000,000 aggregate principal
amount of its Series F Junior Subordinated Debentures due 2069 (including any
such junior subordinated debentures issued after the date hereof that may be
consolidated and form a single series with such junior subordinated debentures
issued on the date hereof, the “
Subordinated Debentures
”),
which Subordinated Debentures were issued pursuant to, and fully and
unconditionally guaranteed (the “
Guarantee
”) by the Guarantor
in accordance with, the Indenture (For Unsecured Subordinated Debt Securities),
dated as of September 1, 2006, among the Corporation, the Guarantor, and The
Bank of New York Mellon, as trustee, as supplemented by the Officer’s
Certificate (the “
Subordinated
Indenture
”).
B.
This
Replacement Capital Covenant is the “
Replacement Capital Covenant
”
referred to in the Prospectus Supplement, dated March 12, 2009, relating to the
Subordinated Debentures.
C.
The
Corporation and the Guarantor, in entering into and disclosing the content of
this Replacement Capital Covenant in the manner provided below, are doing so
with the intent that the covenants provided for in this Replacement Capital
Covenant, including their promise and covenant set forth in
Section
2
, be enforceable by each Covered Debtholder against the Corporation and
the Guarantor as a promise reasonably inducing action or forbearance and that
the Corporation and the Guarantor be estopped from disregarding the covenants in
this Replacement Capital Covenant, in each case to the fullest extent permitted
by applicable law.
D.
The
Corporation and the Guarantor acknowledge that reliance by each Covered
Debtholder on the covenants in this Replacement Capital Covenant is reasonable
and foreseeable by the Corporation and the Guarantor and that, were the
Corporation or the Guarantor to disregard their respective covenants in this
Replacement Capital Covenant, each Covered Debtholder would have sustained an
injury as a result of its reliance on such covenants.
NOW, THEREFORE,
the
Corporation and the Guarantor hereby covenant and agree as follows in favor of
and for the benefit of each Covered Debtholder.
SECTION
1.
Definitions
. Capitalized
terms used in this Replacement Capital Covenant (including the Recitals) have
the meanings set forth in
Schedule
I
hereto.
SECTION
2.
Limitations on Redemption,
Defeasance or Purchase of Subordinated Debentures.
The
Corporation and the Guarantor hereby promise and covenant to and for the benefit
of each Covered Debtholder that the Corporation shall not redeem or purchase, or
satisfy, discharge or defease any portion of the principal amount of the
Subordinated Debentures through the deposit of money and/or U.S. government
obligations, as contemplated by Article Seven of the Subordinated Indenture
(such satisfaction, discharge or defeasance herein referred to as “
defeasance
”), the Guarantor
shall not purchase, and the Corporation and the Guarantor shall cause their
majority-owned Subsidiaries not to purchase, all or any part of the Subordinated
Debentures on or before the Termination Date except to the extent
that:
(a)
the
principal amount defeased or the applicable redemption or purchase price does
not exceed the sum of the following amounts:
(i)
the Applicable Percentage of (A) the aggregate amount of the net cash proceeds
received by the Parent and/or the Corporation from the sale of Common Stock and
Rights to acquire Common Stock, and (B) the Market Value of any Common Stock
that the Corporation and/or the Parent have (1) delivered as consideration for
property or assets in an arm’s-length transaction or (2) issued in connection
with the conversion into or exchange for Common Stock of any convertible or
exchangeable securities, other than, in the case of the preceding clause (2),
convertible or exchangeable securities for which, and to the extent that, the
Parent and/or the Corporation or any of their Subsidiaries then receives equity
credit from any NRSRO;
plus
(ii)
the Applicable Percentage of the aggregate amount of net cash proceeds received
by the Parent and/or the Corporation and/or any of their Subsidiaries from the
sale of Replacement Capital Securities (other than the securities set forth in
clause (i) above);
in
each case, to Persons other than the Parent and/or the Corporation and/or their
Subsidiaries within the applicable Measurement Period (without double counting
proceeds received in any prior Measurement Period);
provided
that the
limitations in this
Section
2
shall not restrict the repayment, redemption or other acquisition of
any Subordinated Debentures that have been previously defeased or purchased in
accordance with this Replacement Capital Covenant; or
(b)
the
Subordinated Debentures are exchanged for consideration that includes an
aggregate principal amount or liquidation preference (or, in the case of Common
Stock, Market Value) of Replacement Capital Securities equal to 100% prior to
the Stepdown Date, and 50% on or after the Stepdown Date (or, in the case of
Common Stock, 50% prior to the Stepdown Date and 25% on or after the Stepdown
Date) of the aggregate principal amount of Subordinated Debentures that are
exchanged.
In
the event that the Corporation redeems, purchases or defeases the Subordinated
Debentures and the Parent issues Replacement Capital Securities for purposes of
this
Section
2
, the Parent shall contribute the net cash proceeds from the issuance of
the Replacement Capital Securities to the extent necessary in order to enable
the Corporation to redeem, purchase or defease the Subordinated Debentures prior
to the applicable redemption, defeasance or purchase date in exchange for a
security or securities from the Corporation that would qualify as Replacement
Capital Securities. For the avoidance of doubt, in the event that the
Parent issues Replacement Capital Securities for purposes of this
Section
2
in connection with the purchase by the Parent of Subordinated
Debentures, the Parent shall not be required to contribute the net cash proceeds
from the issuance of the Replacement Capital Securities to the
Corporation.
SECTION
3.
Covered
Debt.
(a) The Corporation and the Guarantor
represent and warrant that the Initial Covered Debt is Eligible
Debt.
(b)
On,
or during the 30-day period immediately preceding, any Redesignation Date with
respect to the Covered Debt then in effect, the Corporation shall identify the
series of Eligible Debt that will become the Covered Debt on the related
Redesignation Date in accordance with the following procedures:
(i) the
Corporation shall identify each series of its then outstanding long-term
indebtedness for money borrowed that is Eligible Debt;
(ii) if
only one series of the Corporation’s then outstanding long-term indebtedness for
money borrowed is Eligible Debt, such series shall become the Covered Debt
commencing on the related Redesignation Date;
(iii) if
the Corporation has more than one outstanding series of long-term indebtedness
for money borrowed that is Eligible Debt, then the Corporation shall identify a
specific series that has the latest stated final maturity date as of the date
the Corporation is applying the procedures in this
Section
3(b)
and such series shall become the Covered Debt commencing on the
related Redesignation Date;
(iv) if
the Corporation has no outstanding series of long-term indebtedness for money
borrowed that is Eligible Debt, but the Guarantor has only one outstanding
series of long-term indebtedness for money borrowed that is Eligible Debt, such
series shall become the Covered Debt commencing on the related Redesignation
Date;
(v) if
the Corporation has no outstanding series of long-term indebtedness for money
borrowed that is Eligible Debt, but the Guarantor has more than one outstanding
series of long-term indebtedness for money borrowed that is Eligible Debt, then
the Corporation shall identify a specific series that has a stated final
maturity date that is at least three years after the date the Corporation is
applying the procedures in this
Section 3(b)
and such series shall become the Covered Debt commencing on the related
Redesignation Date;
(vi) the
series of outstanding long-term indebtedness for money borrowed that is
determined to be the Covered Debt pursuant to clause (ii), (iii), (iv) or (v)
above shall be the Covered Debt for purposes of this Replacement Capital
Covenant for the period commencing on the related Redesignation Date and
continuing to but not including the Redesignation Date as of which a new series
of outstanding long-term indebtedness is next determined to be the Covered Debt
pursuant to the procedures set forth in this
Section
3(b)
; and
(vii) in
connection with such identification of a new series of the Covered Debt, notice
shall be given, and a Form 8-K shall be filed, as provided for in
Section
3(d)
within the time frame provided for in such section.
(c)
Notwithstanding
any other provisions of this Replacement Capital Covenant, (i) if a series of
Eligible Senior Debt of the Corporation has become the Covered Debt in
accordance with
Section
3(b)
, on the date on which the Corporation issues a new series of
Eligible Subordinated Debt, then immediately upon such issuance such series
shall become the Covered Debt and the applicable series of Eligible Senior Debt
shall cease to be the Covered Debt, (ii) unless clause (iii) is applicable, if a
series of Eligible Senior Debt of the Guarantor has become the Covered Debt in
accordance with
Section
3(b)
, on the date on which the Guarantor issues a new series of Eligible
Subordinated Debt, then immediately upon such issuance such series shall become
the Covered Debt and the applicable series of Eligible Senior Debt shall cease
to be the Covered Debt and (iii) if a series of Eligible Debt of the Guarantor
has become the Covered Debt in accordance with
Section
3(b)
, on the date on which the Corporation issues a new series of
Eligible Debt, then immediately upon such issuance such series shall become the
Covered Debt and the applicable series of Eligible Debt shall cease to be the
Covered Debt.
(d)
In
order to give effect to the intent of the Corporation and the Guarantor
described in
Recital C
,
the Corporation and the Guarantor covenant that (i) simultaneously with the
execution of this Replacement Capital Covenant, or as soon as practicable after
the date hereof, (A) notice shall be given to the Holders of the Initial Covered
Debt, in the manner provided in the indenture or other instrument under which
such Initial Covered Debt was issued, of this Replacement Capital Covenant and
the rights granted to such Holders hereunder and (B) the Guarantor shall
file a copy of this Replacement Capital Covenant with the
Commission as an exhibit to a Form 8-K; (ii) so long as the Parent is
a reporting company under the Securities Exchange Act (or the Corporation if it
becomes a reporting company under the Securities Exchange Act), the Parent or
the Corporation, as applicable, will include or cause to be included in each
Form 10-K filed with the Commission by the Parent or the Corporation, as
applicable, a description of the covenant set forth in
Section 2
and identify the series of long-term indebtedness for borrowed money that is the
Covered Debt as of the date such Form 10-K is filed with the Commission; (iii)
if a series of the Guarantor’s or the Corporation’s long-term indebtedness for
money borrowed (1) becomes the Covered Debt or (2) ceases to be the
Covered Debt, notice of such occurrence will be given within 30 days to the
holders of such long-term indebtedness for money borrowed in the manner provided
for in the indenture or other instrument under which such long-term indebtedness
for money borrowed was issued and the Parent or the Corporation, as applicable,
shall report such change in a Form 8-K, which must include or incorporate by
reference this Replacement Capital Covenant, and, if reported in a
Form 8-K, also in the next Form 10-Q or Form 10-K, as applicable, of the
Parent or the Corporation, as applicable; (iv) upon succession of any new entity
as the Corporation or the Guarantor hereunder as a result of a merger,
consolidation, amalgamation, statutory share exchange, sale, conveyance, lease
or transfer of all or substantially all of the assets or other business
combination of the Corporation or the Guarantor as it existed prior thereto,
notice of such occurrence shall be given within 30 days to the holders of
the Covered Debt in the manner provided for in the indenture or other instrument
under which such long-term indebtedness for money borrowed was issued, and the
Parent (or the Corporation if it becomes a reporting company under the
Securities Exchange Act), shall report such change in a Form 8-K, which must
include or incorporate by reference this Replacement Capital Covenant, and, if
reported in a Form 8-K, also in the next Form 10-Q or Form 10-K, as applicable,
of the Parent or the Corporation, as applicable; (v) if, and only if,
neither the Parent nor the Corporation is a reporting company under the
Securities Exchange Act, the Corporation will (A) post on its website (or the
Parent’s website if the Corporation does not maintain a website at that time)
(in each case, or on any other similar electronic platform generally available
to the public) the information otherwise required to be included in Securities
Exchange Act filings pursuant to clauses (ii), (iii) and (iv) above; and
(B) cause a notice of this Replacement Capital Covenant to be posted on the
Bloomberg screen for the Initial Covered Debt or any successor Bloomberg screen
or, if none, a similar third-party vendor’s screen the Corporation reasonably
believes is appropriate (each an “
Investor Screen
”) and cause a
hyperlink of this Replacement Capital Covenant to be included on the Investor
Screen for each series of the Covered Debt, in each case to the extent permitted
by Bloomberg or such similar third-party vendor, as the case may be; and
(vi) promptly upon the request of any Holder of the Covered Debt, such
Holder will be provided with a conformed copy of this Replacement Capital
Covenant.
SECTION
4.
Termination and
Amendment.
(a) The obligations of the Corporation
and the Guarantor pursuant to this Replacement Capital Covenant shall remain in
full force and effect until the earliest date (the “
Termination Date
”) to occur of
(i) March 1, 2039, or if earlier, the date on which the Subordinated Debentures
are otherwise paid, redeemed, defeased or purchased in full (in compliance with
the terms of
Section
2
of this Replacement Capital Covenant), (ii) the date, if any, on
which the Holders of at least a majority of the outstanding principal amount of
the then-effective Covered Debt consent or agree in writing to the termination
of the obligations of the Corporation and the Guarantor hereunder,
(iii) the date on which neither the Corporation nor the Guarantor has any
Eligible Senior Debt or Eligible Subordinated Debt (in each case without giving
effect to the rating requirement in clause (ii) of the definition of each such
term) and (iv) the date on which the Subordinated Debentures are accelerated as
a result of an event of default under the Subordinated
Indenture. From and after the Termination Date, the obligations of
the Corporation and the Guarantor pursuant to this Replacement Capital Covenant
shall be of no further force and effect with respect to the Holders, or
otherwise.
(b)
This
Replacement Capital Covenant may be amended or supplemented from time to time by
a written instrument signed only by the Corporation and the Guarantor after
obtaining the consent of the Holders of at least a majority of the outstanding
principal amount of the then-effective Covered Debt;
provided
that this
Replacement Capital Covenant may be amended or supplemented from time to time by
a written instrument signed by the Corporation and the Guarantor (and without
the consent of the Holders) if any of the following apply: (i) such amendment or
supplement eliminates Common Stock, Rights to acquire Common Stock, Common
Equity Units and/or Mandatorily Convertible Preferred Stock as Replacement
Capital Securities, if, in the case of this clause, after the date of this
Replacement Capital Covenant, an accounting standard or interpretive guidance of
an existing accounting standard, issued by an organization or regulator that has
responsibility for establishing or interpreting accounting standards in the
United States or other appropriate jurisdiction, as applicable, followed by the
Corporation or the Guarantor becomes effective or applicable to the Corporation
or the Guarantor such that there is more than an insubstantial risk that the
failure to eliminate Common Stock, Rights to acquire Common Stock, Common Equity
Units and/or Mandatorily Convertible Preferred Stock as Replacement Capital
Securities would result in a reduction in the Corporation’s or the Guarantor’s
earnings per share as calculated in accordance with generally accepted
accounting principles (“
EPS
”), or the Corporation or
the Guarantor otherwise have been advised in writing by a nationally recognized
independent accounting firm that there is more than an insubstantial risk that
the failure to eliminate such securities as Replacement Capital Securities would
result in a reduction of the Corporation’s or the Guarantor’s EPS; (ii) the sole
effect of such amendment or supplement is either (A) to impose additional
restrictions on the ability of (1) the Corporation to redeem, purchase or
defease Subordinated Debentures or (2) the Guarantor or any majority-owned
Subsidiary of either the Corporation or the Guarantor to purchase Subordinated
Debentures, or (B) to impose additional restrictions on, or to eliminate certain
of, the types of securities qualifying as Replacement Capital Securities (other
than securities which are covered by clause (i) above) and in each case an
officer of the Corporation has delivered to the Holders of the then-effective
Covered Debt in the manner provided for in the indenture or other instrument
under which such Covered Debt was issued a written certificate to that effect;
(iii) such amendment or supplement extends the date specified in
Section
4(a)(i)
, the Stepdown Date or both; or (iv) such amendment or supplement
is not adverse to the rights of the Holders of the then-effective Covered Debt
and an officer of the Corporation has delivered to the Holders of the
then-effective Covered Debt in the manner provided for in the indenture or other
instrument under which such Covered Debt was issued a written certificate
stating that, in his or her determination, such amendment or supplement is not
adverse to the rights of the Holders of the then-effective Covered
Debt. For the avoidance of doubt, an amendment or supplement that
adds new types of Replacement Capital Securities or modifies the requirements of
the Replacement Capital Securities described herein would not be adverse to the
rights of the Holders of the Covered Debt if, following such amendment or
supplement, this Replacement Capital Covenant would satisfy the definition of
Explicit Replacement Covenant.
(c)
For
purposes of
Section
4(a)
and
Section
4(b)
, the Holders whose consent or agreement is required to terminate,
amend or supplement this Replacement Capital Covenant or the obligations of the
Corporation and the Guarantor hereunder shall be the Holders of the
then-effective Covered Debt as of a record date established by the Corporation
that is not more than 30 days prior to the date on which the Corporation and the
Guarantor propose that such termination, amendment or supplement becomes
effective.
SECTION
5.
Miscellaneous.
(a)
This Replacement Capital Covenant
shall be governed by and construed in accordance with the laws of the State of
New York.
(b)
This
Replacement Capital Covenant shall be binding upon the Corporation (and its
successors and assigns) and the Guarantor (and its successors and assigns) and
shall inure to the benefit of the Covered Debtholders as they exist from
time-to-time (it being understood and agreed by the Corporation and the
Guarantor that any Person who is a Covered Debtholder shall retain its status as
a Covered Debtholder for so long as the series of long-term indebtedness for
borrowed money owned by such Person is the Covered Debt and, if such Person
initiates a claim or proceeding to enforce its rights under this Replacement
Capital Covenant after the Corporation or the Guarantor has violated its
covenants in
Section
2
and before the series of long-term indebtedness for money borrowed held
by such Person is no longer the Covered Debt, such Person’s rights under this
Replacement Capital Covenant shall not terminate by reason of such series of
long-term indebtedness for money borrowed no longer being the Covered
Debt). The Corporation and the Guarantor agree that, if at any time
the Covered Debt is held by a trust (for example, where the Covered Debt is part
of an issuance of trust preferred securities), a holder of the securities issued
by such trust may enforce (including by instituting legal proceedings) this
Replacement Capital Covenant directly against the Corporation as though such
holder owned the Covered Debt directly, and the holders of such trust securities
shall be deemed Holders of the Covered Debt for purposes of this Replacement
Capital Covenant for so long as the indebtedness held by such trust remains the
Covered Debt hereunder. Other than the Covered Debtholders as provided in the
two previous sentences, no other Person shall have any rights under this
Replacement Capital Covenant or be deemed a third party beneficiary of this
Replacement Capital Covenant. In particular, no holder of the
Subordinated Debentures is a third party beneficiary of this Replacement Capital
Covenant, it being understood that such holders may have rights under the
Subordinated Indenture.
(c)
All
demands, notices, requests and other communications to the Corporation or the
Guarantor under this Replacement Capital Covenant shall be deemed to have been
duly given and made if in writing and (i) if served by personal delivery upon
the Corporation or the Guarantor, on the day so delivered (or, if such day is
not a Business Day, the next succeeding Business Day) or (ii) if delivered
by registered post or certified mail, return receipt requested, or sent to the
Corporation or the Guarantor by a national or international courier service, on
the date of receipt by the Corporation or the Guarantor (or, if such date of
receipt is not a Business Day, the next succeeding Business Day), and in each
case to the Corporation or the Guarantor at their respective addresses set forth
below, or at such other address as may thereafter be listed as the principal
executive offices of the Guarantor, the Corporation or its Parent (if the
address of the Corporation is not listed) in the then most recently filed Form
10-K or Form 10-Q of the Parent, Guarantor or Corporation, as applicable, or as
may thereafter be posted on the Corporation’s or the Guarantor’s website (or the
Parent’s website if the Corporation and the Guarantor do not maintain a website
at that time) as the address for notices under this Replacement Capital
Covenant:
FPL
Group Capital Inc
Attention: Treasurer
700
Universe Boulevard
Juno
Beach, Florida 33408
FPL
Group, Inc.
Attention: Treasurer
700
Universe Boulevard
Juno
Beach, Florida 33408
IN WITNESS WHEREOF
, the
Corporation and the Guarantor have caused this Replacement Capital Covenant to
be executed by a duly authorized officer as of the day and year first above
written.
FPL
GROUP CAPITAL INC
|
By:
|
/s/
Kathy A. Beilhart
|
|
Name:
|
Kathy
A. Beilhart
|
|
Title:
|
Assistant
Treasurer
|
FPL
GROUP, INC.
|
By:
|
/s/
Kathy A. Beilhart
|
|
Name:
|
Kathy
A. Beilhart
|
|
Title:
|
Assistant
Treasurer
|
Schedule
I
Definitions
“
Alternative
Payment Mechanism
” means, with respect to any Qualifying Capital
Securities, provisions in the related transaction documents that permit the
issuer, in its sole discretion, to defer Distributions in whole or in part on
such Qualifying Capital Securities for one or more consecutive Distribution
Periods of up to ten years and that require the issuer thereof to issue (or use
Commercially Reasonable Efforts to issue), in its sole discretion, one or more
types of APM Qualifying Securities raising “eligible proceeds” (as defined in
(a) below) at least equal to the deferred Distributions on such Qualifying
Capital Securities and apply the proceeds to pay unpaid Distributions on such
Qualifying Capital Securities, commencing on the earlier of (x) the first
Distribution Date after commencement of a deferral period on which such issuer
pays current Distributions on such Qualifying Capital Securities and
(y) the fifth anniversary of the commencement of such deferral period, and
that:
(a) define
“
eligible proceeds
” to
mean, for purposes of such Alternative Payment Mechanism, the net proceeds
(after underwriters’ or placement agents’ fees, commissions or discounts and
other expenses relating to the issuance or sale of the relevant securities,
where applicable, and including the fair market value of property received by
the issuer or its Subsidiaries as consideration for such securities) that such
issuer has received during the 180 days prior to the related Distribution Date
from the issuance of APM Qualifying Securities to Persons other than the Parent
and/or the Corporation and/or their Subsidiaries, up to the Preferred Cap (as
defined in (e) below) in the case of APM Qualifying Securities that are
Qualifying Preferred Stock or Mandatorily Convertible Preferred
Stock;
(b) permit
such issuer to pay current Distributions on any Distribution Date out of any
source of funds but (x) require such issuer to pay deferred Distributions
only out of eligible proceeds and (y) prohibit such issuer from paying
deferred Distributions out of any source of funds other than eligible
proceeds;
(c) if
deferral of Distributions continues for more than one year (or such shorter
period as may be provided for in the terms of such securities), require such
issuer or any of its Subsidiaries not to redeem or purchase any securities that
rank pari passu with or junior to any APM Qualifying Securities that such issuer
has issued to settle deferred Distributions in respect to that deferral period
until at least one year after all deferred Distributions have been paid (a
“
Purchase
Restriction
”), other than the following (none of which shall be
restricted or prohibited by a Purchase Restriction):
(i) purchases,
redemptions or other acquisitions of shares of Common Stock in connection with
any employment or compensatory contract, compensation or benefit plan or other
similar arrangement with or for the benefit of employees, officers, directors or
consultants; or
(ii) purchases
or other acquisitions of shares of Common Stock pursuant to a contractually
binding requirement to buy shares of Common Stock entered into prior to the
beginning of the related deferral period, including under a contractually
binding stock repurchase plan;
(d) limit
the obligation of such issuer to issue (or use Commercially Reasonable Efforts
to issue) APM Qualifying Securities that are Common Stock or Qualifying Warrants
to settle deferred Distributions pursuant to the Alternative Payment Mechanism
either (i) during the first five years of any deferral period or (ii) before an
anniversary of the commencement of any deferral period that is not earlier than
the fifth such anniversary and not later than the ninth such anniversary (as
designated in the terms of such Qualifying Capital Securities) with respect to
deferred Distributions attributable to the first five years of such deferral
period, either:
(1) to
an aggregate amount of such securities, the net proceeds from the issuance of
which is equal to 2% of the product of the average of the current Market Value
of the Common Stock on the ten consecutive trading days ending on the fourth
trading day immediately preceding the date of issuance multiplied by the total
number of issued and outstanding shares of Common Stock as of the date of the
Parent’s most recent publicly available consolidated financial statements;
or
(2) to
a number of shares of Common Stock and shares issuable upon exercise of
Qualifying Warrants, in the aggregate, not in excess of 2% of the outstanding
number of shares of Common Stock as of the date of the Parent’s most recent
publicly available consolidated financial statements (the “
Common Cap
”);
(e) limit
the right of such issuer to issue (or use Commercially Reasonable Efforts to
issue) APM Qualifying Securities that are Qualifying Preferred Stock or
Mandatorily Convertible Preferred Stock, to an amount from the issuance of such
Qualifying Preferred Stock and then-still outstanding Mandatorily Convertible
Preferred Stock pursuant to the related Alternative Payment Mechanism
(including, in the case of Qualifying Preferred Stock, at any point in time from
all prior issuances thereof pursuant to such Alternative Payment Mechanism)
equal to 25% of the initial liquidation or principal amount of the Qualifying
Capital Securities that are the subject of the related Alternative Payment
Mechanism (the “
Preferred
Cap
”);
(f) in
the case of Qualifying Capital Securities include a Bankruptcy Claim Limitation
Provision; and
(g) permit
such issuer, at its option, to provide that if such issuer is involved in a
merger, consolidation, amalgamation, statutory share exchange, conveyance, lease
or other transfer of all or substantially all of the assets to any other person
or a similar transaction (a “
business
combination
”) where immediately after the consummation of the business
combination more than 50% of the surviving or resulting entity’s voting
securities is owned by the equityholders of the other party to the business
combination, or the entity to whom all or substantially all of such issuer’s
assets are conveyed, leased or otherwise transferred, then clauses (a), (b) and
(c) above will not apply to any deferral period that is terminated on the next
Distribution Date following the date of consummation of the business
combination;
|
provided
(and
it being understood) that:
|
(h) the
Alternative Payment Mechanism may at the discretion of such issuer include a
share cap limiting the issuance of APM Qualifying Securities consisting of
Common Stock, Qualifying Warrants and Mandatorily Convertible Preferred Stock,
in each case to a maximum issuance cap to be set at the discretion of such
issuer (a “
Share Cap
”);
provided
that
such Share Cap will be subject to such issuer’s agreement to use Commercially
Reasonable Efforts to increase the Share Cap when reached and (i) only to
the extent it can do so and simultaneously satisfy its future fixed or
contingent obligations under other securities and derivative instruments that
provide for settlement or payment in Common Stock or (ii) if such issuer
cannot increase the Share Cap as contemplated in the preceding clause, by
requesting its board of directors to adopt a resolution for shareholder vote at
the next occurring annual shareholders meeting to increase the number of shares
of such issuer’s authorized Common Stock or preferred stock for purposes of
satisfying its obligations to pay deferred Distributions;
(i) such
issuer shall not be obligated to issue (or use Commercially Reasonable Efforts
to issue) APM Qualifying Securities for so long as a Market Disruption Event has
occurred and is continuing;
(j) if,
due to a Market Disruption Event or otherwise, such issuer is able to raise and
apply some, but not all, of the eligible proceeds necessary to pay all deferred
Distributions on any Distribution Date, such issuer will apply an amount equal
to any available eligible proceeds to pay accrued and unpaid Distributions on
the applicable Distribution Date in chronological order subject to the Common
Cap, the Preferred Cap, and the Share Cap (if any), as applicable;
and
(k) if
such issuer has outstanding more than one class or series of securities under
which it is obligated to sell a type of APM Qualifying Securities and apply some
part of the proceeds to the payment of deferred Distributions, then on any date
and for any period the amount of net proceeds received by such issuer from those
sales and available for payment of deferred Distributions on such securities
shall be applied to such securities on a pro rata basis up to the Common Cap,
the Preferred Cap and the Share Cap (if any), as applicable, in proportion to
the total amounts that are due on such securities.
“
APM Qualifying Securities
”
means, with respect to any Alternative Payment Mechanism, any Debt Exchangeable
for Preferred Equity or any Mandatory Trigger Provision, one or more of the
following (as designated in the transaction documents for any Qualifying Capital
Securities that include an Alternative Payment Mechanism or a Mandatory Trigger
Provision or for any Debt Exchangeable for Preferred Equity):
(a) Common
Stock;
(b) Qualifying
Warrants;
(c) Qualifying
Preferred Stock; and
(d) Mandatorily
Convertible Preferred Stock
provided
(and it
being understood) that:
(i) if
the APM Qualifying Securities for any Alternative Payment Mechanism or Mandatory
Trigger Provision includes both Common Stock and Qualifying
Warrants,
(A) such
Alternative Payment Mechanism or Mandatory Trigger Provision may permit, but
need not require, the Parent or the Corporation to issue Qualifying Warrants;
and
(B) the
Guarantor and the Corporation may, without the consent of the holders of the
Qualifying Capital Securities, amend the definition of APM Qualifying Securities
to eliminate Common Stock or Qualifying Warrants (but not both) from the
definition if, after the issue date, an accounting standard or interpretive
guidance relating to an existing accounting standard issued by an organization
or regulator that has responsibility for establishing or interpreting accounting
standards followed by the Corporation or the Guarantor becomes effective or
applicable to the Parent or the Corporation such that there is more than an
insubstantial risk that the failure to eliminate Common Stock or Qualifying
Warrants from the definition of APM Qualifying Securities would result in a
reduction in the Parent’s or the Corporation’s EPS.
(ii) if
the APM Qualifying Securities for any Alternative Payment Mechanism or Mandatory
Trigger Provision includes Mandatorily Convertible Preferred Stock and Common
Stock and/or Qualifying Preferred Stock,
(A) such
Alternative Payment Mechanism or Mandatory Trigger Provision may permit, but
need not require, the Parent or the Corporation to issue Mandatorily Convertible
Preferred Stock; and
(B) the
Guarantor and the Corporation may, without the consent of the holders of the
Qualifying Capital Securities, amend the definition of APM Qualifying Securities
to eliminate Mandatorily Convertible Preferred Stock from the definition if,
after the issue date, an accounting standard or interpretive guidance relating
to an existing accounting standard issued by an organization or regulator that
has responsibility for establishing or interpreting accounting standards
followed by the Corporation or the Guarantor becomes effective or applicable to
the Parent or the Corporation such that there is more than an insubstantial risk
that the failure to eliminate Mandatorily Convertible Preferred Stock from the
definition of APM Qualifying Securities would result in a reduction in the
Parent’s or the Corporation’s EPS.
“
Applicable Percentage
”
means:
(a) with
respect to Common Stock, Rights to acquire Common Stock and Mandatorily
Convertible Preferred Stock, 200% prior to the Stepdown Date and 400% on or
after the Stepdown Date;
(b) (i)
with respect to Qualifying Capital Securities described in clause (a) of the
definition of that term, 100% prior to the Stepdown Date and 200% on or after
the Stepdown Date and (ii) with respect to Qualifying Capital Securities
described in clause (b) of the definition of that term, 100%; and
(c) with
respect to Debt Exchangeable for Equity, 150% prior to the Stepdown Date and
300% on or after the Stepdown Date.
“
Bankruptcy Claim Limitation
Provision
” means, with respect to any Qualifying Capital Securities that
have an Alternative Payment Mechanism or a Mandatory Trigger Provision,
provisions that, upon any liquidation, dissolution, winding up or reorganization
or in connection with any insolvency, receivership or proceeding under any
bankruptcy law with respect to the issuer, limit the claim of the holders of
such Qualifying Capital Securities to Distributions that accumulate during (i)
any deferral period, in the case of Qualifying Capital Securities that have an
Alternative Payment Mechanism or (ii) any period in which the issuer fails to
satisfy one or more financial tests set forth in the terms of such securities or
related transaction agreements, in the case of Qualifying Capital Securities
having a Mandatory Trigger Provision, to:
(a) in
the case of Qualifying Capital Securities having an Alternative Payment
Mechanism or Mandatory Trigger Provision with respect to which the APM
Qualifying Securities do not include Qualifying Preferred Stock or Mandatorily
Convertible Preferred Stock, 25% of the stated or principal amount of such
Qualifying Capital Securities then outstanding; and
(b) in
the case of any other Qualifying Capital Securities, an amount not in excess of
the sum of (i) the amount of accumulated and unpaid Distributions (including
compounded amounts) that relate to the earliest two years of the portion of the
deferral period for which Distributions have not been paid and (ii) an amount
equal to the excess, if any, of the Preferred Cap over the aggregate amount of
net proceeds from the sale of Qualifying Preferred Stock or Mandatorily
Convertible Preferred Stock that the issuer has applied to pay such
Distributions pursuant to the Alternative Payment Mechanism or the Mandatory
Trigger Provision,
provided
that the
holders of such Qualifying Capital Securities are deemed to agree that, to the
extent the claim for deferred Distributions exceeds the amount set forth in
subclause (i), the amount they receive in respect of such excess shall not
exceed the amount they would have received had the claim for such excess ranked
pari passu with the interests of the holders, if any, of Qualifying Preferred
Stock or Mandatorily Convertible Preferred Stock.
“
Board of Directors
” means the
Board of Directors of the Corporation or a duly constituted committee
thereof.
“
Business Day
” means each day
other than (i) a Saturday or Sunday or (ii) a day on which banking institutions
in The City of New York are authorized or obligated by law, regulation or
executive order to close.
“
Commercially Reasonable
Efforts
” means, for purposes of selling APM Qualifying Securities,
commercially reasonable efforts to complete the offer and sale of APM Qualifying
Securities to third parties that are not the Parent, the Corporation or any of
their Subsidiaries in public offerings or private placements. The
issuer of APM Qualifying Securities shall not be considered to have made
Commercially Reasonable Efforts to effect a sale of APM Qualifying Securities if
it determines not to pursue or complete such sale due to pricing, coupon,
dividend rate or dilution considerations.
“
Commission
” means the United
States Securities and Exchange Commission.
“
Common Cap
” has the meaning
specified in the definition of Alternative Payment Mechanism.
“
Common Equity Units
” means a
security or combination of securities that:
(a)
gives the holders (i) a beneficial interest in a fixed income security of the
Corporation or the Parent (including a debt security, a trust preferred security
of a subsidiary trust or preferred stock) that has a maturity no greater than
six years and (ii) a beneficial interest in a stock purchase
contract;
(b)
includes a remarketing feature pursuant to which the fixed income security is
required to be remarketed to new investors within four years from the date of
issuance of the security; and
(c)
provides for the proceeds raised in the remarketing to be used to purchase
Common Stock pursuant to the stock purchase contract for a determinable number
of shares or within a range established at the time of issuance of the Common
Equity Units, in each case subject to customary anti-dilution or similar
adjustments.
“
Common Stock
” means (i) any
equity securities of the Corporation or its Parent, as applicable (including
equity securities held as treasury shares and equity securities, if any, sold
pursuant to a dividend reinvestment plan, any direct stock purchase plan or
director or employee benefit plan) that have no preference in the payment of
dividends or amounts payable upon the liquidation, dissolution or winding up of
the Corporation or its Parent, as applicable (including any security that tracks
the performance of, or relates to the results of, a business, unit or division
of the Corporation or its Parent, as applicable), and (ii) any other securities
that have no preference in the payment of dividends or amounts payable upon the
liquidation, dissolution or winding up of the Corporation or its Parent, as
applicable, and are issued in exchange for securities described in (i) above in
connection with a merger, consolidation, binding share exchange, business
combination, recapitalization or other similar event.
“
Corporation
” has the meaning
specified in the introduction to this instrument.
“
Covered Debt
” means (i) at the
date of this Replacement Capital Covenant and continuing to but not including
the first Redesignation Date, the Initial Covered Debt and (ii) thereafter,
commencing with each Redesignation Date and continuing to but not including the
next succeeding Redesignation Date, the Eligible Debt identified pursuant to
Section
3(b)
as the Covered Debt for such period.
“
Covered Debtholder
” means each
Person (whether a Holder or a beneficial owner holding through a participant in
a clearing agency) that buys, holds or sells long-term indebtedness for money
borrowed of the Corporation during the period that such long-term indebtedness
for money borrowed is the Covered Debt,
provided
that a
Person who has sold all its right, title and interest in the Covered Debt shall
cease to be a Covered Debtholder at the time of such sale if, at such time, the
Corporation has not breached or repudiated, or threatened to breach or
repudiate, its obligations hereunder.
“
Debt
Exchangeable for Equity
” means Common Equity Units or Debt Exchangeable
for Preferred Equity.
“
Debt Exchangeable for Preferred
Equity
” means a security or combination of securities (together in this
definition, “
such
securities
”) that:
(a) gives
the holder a beneficial interest in (i) subordinated debt securities of the
Corporation or the Parent (in this definition, the “
issuer
”), permitting the
issuer to defer Distributions in whole or in part on such securities for one or
more Distribution Periods of up to at least seven years without any remedies
other than Permitted Remedies and that are the most junior subordinated debt of
the issuer (or rank pari passu with the most junior subordinated debt of the
issuer) (in this definition, “
subordinated debt
”) and (ii) a
fractional interest in a stock purchase contract for a share or shares of
Qualifying Preferred Stock of the Corporation or the Parent that ranks pari
passu with or junior to all other preferred stock of the Corporation or the
Parent, as applicable (in this definition, “
preferred
stock
”);
(b) provides
that the holders directly or indirectly grant to the Corporation or the Parent a
security interest in such subordinated debt and their proceeds (including any
substitute collateral permitted under the transaction documents) to secure the
holders’ direct or indirect obligation to purchase preferred stock of the
Corporation or the Parent pursuant to such stock purchase
contracts;
(c) includes
a remarketing feature pursuant to which the subordinated debt of the Corporation
or the Parent is remarketed to new investors commencing not later than the first
Distribution Date that is at least five years after the date of issuance of such
securities or earlier in the event of an early settlement event based on: (i)
the dissolution of the issuer of such securities or (ii) one or more financial
tests set forth in the terms of the instrument governing such
securities;
(d) provides
for the proceeds raised in the remarketing of the subordinated debt to be used
to purchase preferred stock of the Corporation or the Parent under the stock
purchase contracts and, if there has not been a successful remarketing by the
first Distribution Date that is six years after the date of issuance of such
securities, provides that the stock purchase contracts will be settled by the
Corporation or the Parent exercising its remedies as a secured party with
respect to its subordinated debt or other collateral directly or indirectly
pledged by the holders of such securities;
(e) is
subject to an Explicit Replacement Covenant that will apply to such securities
and preferred stock of the Corporation or the Parent, as applicable, and will
not include Debt Exchangeable for Equity as a Replacement Capital Security;
and
(f) if
applicable, after the issuance of such preferred stock of the Corporation or the
Parent, provides the holders of such securities with a beneficial interest in
such preferred stock of the Corporation or the Parent, as
applicable.
“
Defeasance
” has the meaning
specified in
Section
2
.
“
Distribution Date
” means, as
to any security or combination of securities, the dates on which periodic
Distributions on such securities are scheduled to be made.
“
Distribution Period
” means, as
to any security or combination of securities, each period from and including a
Distribution Date (or from and including the date of issuance with respect to
the period prior to the initial Distribution Date) for such securities to but
not including the next succeeding Distribution Date for such
securities.
“
Distributions
” means, as to a
security or combination of securities, dividends, interest payments or other
income distributions to the holders thereof that are not Subsidiaries of the
Parent.
“
Eligible Debt
” means, at any
time, Eligible Subordinated Debt or, if no Eligible Subordinated Debt is then
outstanding, Eligible Senior Debt. The Subordinated Debentures shall
not be considered “Eligible Debt” for purposes of this Replacement Capital
Covenant.
“
Eligible Senior Debt
” means,
at any time in respect of any issuer, each series of the issuer’s then
outstanding unsecured long-term indebtedness for money borrowed that (i) upon a
bankruptcy, liquidation, dissolution or winding up of the issuer, ranks most
senior among the issuer’s then outstanding classes of unsecured indebtedness for
money borrowed, (ii) is then assigned a rating by at least one NRSRO (
provided
that this
clause (ii) shall apply on a Redesignation Date only if on such date the issuer
has outstanding senior long-term indebtedness for money borrowed that satisfies
the requirements of clauses (i), (iii) and (iv) that is then assigned a rating
by at least one NRSRO), (iii) has an outstanding principal amount of not less
than $100,000,000, and (iv) was issued through or with the assistance of a
commercial or investment banking firm or firms acting as underwriters, initial
purchasers or placement or distribution agents. For purposes of this
definition as applied to securities with a CUSIP number, each issuance of
long-term indebtedness for money borrowed that has (or, if such indebtedness is
held by a trust or other intermediate entity established directly or indirectly
by the issuer, the securities of such intermediate entity that have) a separate
CUSIP number shall be deemed to be a series of the issuer’s long-term
indebtedness for money borrowed that is separate from each other series of such
indebtedness.
“
Eligible Subordinated Debt
”
means, at any time in respect of any issuer, each series of the issuer’s then
outstanding unsecured long-term indebtedness for money borrowed that (i) upon a
bankruptcy, liquidation, dissolution or winding up of the issuer, ranks senior
to the Subordinated Debentures (or any guarantee thereof) and subordinate to the
issuer’s then outstanding series of unsecured indebtedness for money borrowed
that ranks most senior, (ii) is then assigned a rating by at least one NRSRO
(
provided
that
this clause (ii) shall apply on a Redesignation Date only if on such date the
issuer has outstanding subordinated long-term indebtedness for money borrowed
that satisfies the requirements of clauses (i), (iii) and (iv) that is then
assigned a rating by at least one NRSRO), (iii) has an outstanding principal
amount of not less than $100,000,000, and (iv) was issued through or with the
assistance of a commercial or investment banking firm or firms acting as
underwriters, initial purchasers or placement or distribution
agents. For purposes of this definition as applied to securities with
a CUSIP number, each issuance of long-term indebtedness for money borrowed that
has (or, if such indebtedness is held by a trust or other intermediate entity
established directly or indirectly by the issuer, the securities of such
intermediate entity have) a separate CUSIP number shall be deemed to be a series
of the issuer’s long-term indebtedness for money borrowed that is separate from
each other series of such indebtedness.
“
Explicit Replacement Covenant
”
means, as to any security or combination of securities, (i) a covenant
substantially similar to this Replacement Capital Covenant or (ii) a replacement
capital covenant that the Board of Directors, acting in good faith and in its
reasonable discretion and reasonably construing the definitions and other terms
of this Replacement Capital Covenant, has determined operates to the effect that
the issuer will redeem, defease or purchase such securities, and any Parent or
Subsidiaries of the issuer will purchase such securities, only if and to the
extent that the applicable percentage of the amount raised within the 180-day
period preceding the applicable redemption, defeasance or purchase date by
issuing specified replacement capital securities having terms and provisions at
the time of redemption, defeasance or purchase that are as much or more
equity-like than the securities then being redeemed, defeased or purchased, is
at least equal to the principal amount of the securities being defeased or the
applicable redemption or purchase price,
provided
that the
board of directors of the issuer has determined that such covenant is binding on
the issuer for the benefit of one or more series of the long-term indebtedness
for money borrowed of the issuer (or an affiliate of the issuer, if the covenant
so provides) to the same extent as this Replacement Capital Covenant is binding
on the Corporation for the benefit of the Holders of the Initial Covered
Debt.
“
Form 8-K
” means a Current
Report on Form 8-K filed with the Commission under the Securities Exchange Act,
and any successor report.
“
Form 10-K
” means an Annual
Report on Form 10-K filed with the Commission under the Securities Exchange Act,
and any successor report.
“
Form 10-Q
” means a Quarterly
Report on Form 10-Q filed with the Commission under the Securities Exchange Act,
and any successor report.
“
Guarantee
” has the meaning
specified in
Recital
A
.
“
Guarantor
” has the meaning
specified in the introduction to this instrument.
“
Holder
” means, as to the
Covered Debt then in effect, each holder of such Covered Debt as reflected on
the securities register maintained by or on behalf of the Corporation with
respect to such Covered Debt.
“
Initial Covered Debt
” means
the 5 7/8% Preferred Trust Securities issued on March 15, 2004 by FPL Group
Capital Trust I (CUSIP No. 30257V 207).
“
Intent-Based Replacement
Disclosure
” means, as to any security or combination of securities
issued, directly or indirectly, that the issuer has publicly stated its
intention, either in the prospectus or other offering or purchase document under
which such security or combination of securities were initially offered for sale
or in filings with the Commission made by the issuer or an affiliate under the
Securities Exchange Act prior to or contemporaneously with the issuance of such
securities, that the issuer will redeem, purchase or defease or its Parent or
Subsidiaries will purchase, such securities only with the applicable percentage
of the amounts raised within the 180-day period preceding the applicable
redemption, purchase or defeasance date from the issuance of specified
replacement capital securities that have terms and provisions at the time of
redemption, defeasance or purchase that are as much or more equity like than the
securities then being redeemed, defeased or purchased.
“
Investor Screen
” has the
meaning specified in
Section
3(d)
.
“
Mandatorily Convertible Preferred
Stock
” means cumulative preferred stock or Non-Cumulative Preferred Stock
of the Corporation or the Parent with (a) no prepayment obligation on the
part of the issuer thereof, whether at the election of the holders or otherwise,
and (b) a requirement that the preferred stock convert into Common Stock of the
issuer within three years from the date of its issuance for a determinable
number of shares or within a range established at the time of issuance of the
cumulative preferred stock or the Non-Cumulative Preferred Stock, subject to
customary anti-dilution or similar adjustments.
“
Mandatory Trigger Provision
”
means, as to any security or combination of securities, provisions in the terms
thereof or in the related transaction agreements that (A) require, or at its
option in the case of perpetual Non-Cumulative Preferred Stock permit, the
issuer of such security or combination of securities to make payment of
Distributions on such securities within two years after a failure to satisfy one
or more financial tests set forth in the terms of such securities or related
transaction agreements only if payment of such Distributions during that
two-year period is made in connection with the issuance and sale of APM
Qualifying Securities (for the avoidance of doubt, payment of such Distributions
with cash from any source other than APM Qualifying Securities is not permitted
during such two-year period immediately following the failure of the issuer to
satisfy such financial test(s)), such payment to be in an amount not exceeding
the amount of the net proceeds of such sale at least equal to the amount of
unpaid Distributions on such securities (including without limitation all
deferred and accumulated amounts) and in either case requires the application of
the net proceeds of such sale to pay such unpaid Distributions;
provided
that
(i) such Mandatory Trigger Provision shall limit the issuance and sale of
Common Stock and Qualifying Warrants the proceeds of which may be applied to pay
such Distributions pursuant to such provision to the Common Cap, unless the
Mandatory Trigger Provision requires such issuance and sale within one year of
such failure, and (ii) the amount of Qualifying Preferred Stock and still
outstanding Mandatorily Convertible Preferred Stock the net proceeds of which
the issuer may apply to pay such Distributions pursuant to such provision may
not exceed the Preferred Cap, (B) in the case of securities other than perpetual
Non-Cumulative Preferred Stock, prohibit the issuer from purchasing any APM
Qualifying Securities, or any securities that rank pari passu with or junior to
APM Qualifying Securities, the proceeds of which were used to settle deferred
interest during the relevant deferral period, prior to the date six months after
the issuer applies the net proceeds of the sales described in clause (A) to pay
such unpaid Distributions in full, (C) in the case of securities other than
perpetual Non-Cumulative Preferred Stock, include a Bankruptcy Claim Limitation
Provision and (D) if deferral of Distributions continues for more than one year
(or such shorter period as may be provided for in the terms of such securities),
prohibit the issuer of such securities from redeeming or purchasing any of its
securities ranking upon the liquidation, dissolution or winding up of the issuer
junior to or pari passu with any APM Qualifying Securities the proceeds of which
were used to settle deferred Distributions during the relevant deferral period
until at least one year after all deferred Distributions have been
paid. For purposes of this definition of Mandatory Trigger Provision,
(i) the issuer will not be obligated to issue (or use Commercially Reasonable
Efforts to issue) any such APM Qualifying Securities for so long as a Market
Disruption Event has occurred and is continuing; (ii) if, due to a Market
Disruption Event or otherwise, the issuer is able to raise and apply some, but
not all, of the eligible proceeds necessary to pay all deferred Distributions on
any Distribution Date, the issuer will apply an amount equal to any available
eligible proceeds to pay accrued and unpaid Distributions on the applicable
Distribution Date in chronological order subject to the Common Cap, the
Preferred Cap and the Share Cap (if any), as applicable; and (iii) if the issuer
has outstanding more than one class or series of securities under which it is
obligated to sell a type of any such APM Qualifying Securities and applies some
part of the proceeds to the payment of deferred Distributions, then on any date
and for any period the amount of net proceeds received by the issuer from those
sales and available for payment of deferred Distributions on such securities
shall be applied to such securities on a
pro rata
basis up to the
Common Cap, the Preferred Cap and the Share Cap (if any), as applicable, in
proportion to the total amounts of deferred Distributions that are due on such
securities. No remedy other than Permitted Remedies will arise by the
terms of such securities or related transaction agreements in favor of the
holders of such securities as a result of the issuer’s failure to pay
Distributions because of the Mandatory Trigger Provision or as a result of the
issuer’s exercise of its right under an Optional Deferral Provision until
Distributions have been deferred for one or more Distribution Periods that total
together at least ten years.
“
Market Disruption Event
” means
the occurrence or existence of any of the following events or sets of
circumstances:
(i) trading
in securities generally, or in the securities of the issuer (or any affiliate of
the issuer that may issue securities in settlement of an Alternative Payment
Mechanism) specifically, on The New York Stock Exchange or any other national
securities exchange or over-the-counter market on which such securities are then
listed or traded shall have been suspended or the settlement of such trading
generally shall have been materially disrupted or minimum prices shall have been
established on any such exchange or market by the Commission, by the relevant
exchange or by any other regulatory body or governmental body having
jurisdiction, and the establishment of such minimum prices materially disrupts
or otherwise has a material adverse effect on trading in, or the issuance and
sale of, such securities;
(ii) the
issuer (or an affiliate as specified in clause (i) of this defined term) would
be required to obtain the consent or approval of its shareholders (or the
shareholders of an affiliate as specified in said clause (i)) or a regulatory
body (including, without limitation, any securities exchange) or governmental
authority to issue APM Qualifying Securities or Qualifying Capital Securities
and the issuer (or an affiliate as specified in said clause (i)) fails to obtain
that consent or approval notwithstanding the commercially reasonable efforts of
the issuer (or an affiliate as specified in said clause (i)) to obtain that
consent or approval or a regulatory authority instructs the issuer (or an
affiliate as specified in said clause (i)) not to sell or offer for sale such
securities;
(iii) a
banking moratorium shall have been declared by the federal or state authorities
of the United States and such moratorium materially disrupts or otherwise has a
material adverse effect on trading in, or the issuance and sale of, APM
Qualifying Securities;
(iv) a
material disruption shall have occurred in commercial banking or securities
settlement or clearance services in the United States and such disruption
materially disrupts or otherwise has a material adverse effect on trading in, or
the issuance and sale of, APM Qualifying Securities;
(v) the
United States shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States, there shall have been a
declaration of a national emergency or war by the United States or there shall
have occurred any other national or international calamity or crisis and such
event materially disrupts or otherwise has a material adverse effect on trading
in, or the issuance and sale of, APM Qualifying Securities;
(vi) there
shall have occurred such a material adverse change in general domestic or
international economic, political or financial conditions, including without
limitation as a result of terrorist activities, and such change materially
disrupts or otherwise has a material adverse effect on trading in, or the
issuance and sale of, APM Qualifying Securities;
(vii) an
event occurs and is continuing as a result of which the offering document for
the offer and sale of the APM Qualifying Securities or Qualifying Capital
Securities would, in the reasonable judgment of the issuer (or an affiliate as
specified in clause (i) of this defined term), contain an untrue statement of a
material fact or omit to state a material fact required to be stated in that
offering document or necessary to make the statements in that offering document
not misleading and either (A) the disclosure of that event at such time, in the
reasonable judgment of the issuer (or an affiliate as specified in said clause
(i)), would have a material adverse effect on the business of the issuer (or an
affiliate as specified in said clause (i)) or (B) the disclosure relates to
a previously undisclosed proposed or pending material business transaction, the
disclosure of which would impede the ability of the issuer or any affiliate to
consummate that transaction,
provided
that no
single suspension period contemplated by this paragraph (vii) shall exceed
90 consecutive days and multiple suspension periods contemplated by this
clause (vii) shall not exceed an aggregate of 180 days in any 360-day period;
or
(viii)
the issuer (or an affiliate as specified in clause (i) of this defined term)
reasonably believes, for reasons other than those referred to in paragraph (vii)
above, that the offering document for such offer and sale of APM Qualifying
Securities would not be in compliance with a rule or regulation of the
Commission and the issuer (or an affiliate as specified in said clause (i))
is unable to comply with such rule or regulation or such compliance is unduly
burdensome,
provided
that no
single suspension period contemplated by this clause (viii) shall exceed 90
consecutive days and multiple suspension periods contemplated by this clause
(viii) shall not exceed an aggregate of 180 days in any 360-day
period.
The
definition of “
Market
Disruption Event
” or similar words as used in any securities or
combination of securities that constitute Replacement Capital Securities may
include less than all of the numbered clauses specified above in this
definition, as determined by the issuer thereof at the time of issuance of such
securities and, in the case of numbered clauses (i), (ii), (iii) and (iv) in
this definition, as applicable to a circumstance where the issuer would
otherwise endeavor to issue preferred stock, shall be limited to circumstances
affecting markets in which the issuer’s preferred stock trades or in which a
listing for its trading is being sought.
“
Market Value
” means, on any
date, the closing sale price per share of Common Stock (or if no closing sale
price is reported, the average of the bid and ask prices or, if more than one in
either case, the average of the average bid and the average ask prices) on that
date as reported in composite transactions by The New York Stock Exchange or, if
the Common Stock is not then listed on The New York Stock Exchange, as reported
by the principal U.S. securities exchange on which the Common Stock is traded or
quoted; if the Common Stock is not either listed or quoted on any U.S.
securities exchange on the relevant date, the Market Value will be the average
of the mid-point of the bid and ask prices for the Common Stock on the relevant
date submitted by at least three nationally recognized independent investment
banking firms selected by the Corporation or the Parent for this
purpose.
“
Measurement Period
” means,
with respect to any redemption, purchase or defeasance of Subordinated
Debentures, the period (i) beginning on the date that is 180 days prior to the
date of delivery of notice of such redemption (such date of delivery, the “
notice date
”) or the date of
such purchase or defeasance and (ii) ending on such notice date or the date of
such purchase or defeasance. Measurement Periods cannot run
concurrently.
“
Most Junior Subordinated Debt
”
means debt securities of the Corporation or the Parent, as applicable, that rank
upon the issuer’s liquidation, dissolution or winding-up junior to all of the
issuer’s other long-term indebtedness for money borrowed (other than the
issuer’s long-term indebtedness for money borrowed from time to time outstanding
that by its terms ranks pari passu with such securities) and pari passu with the
claims of the issuer’s trade creditors. As of the date hereof, the
term “Most Junior Subordinated Debt” shall include the Subordinated Debentures
and the Guarantee, as applicable, with respect to the Corporation or the
Guarantor.
“
Non-Cumulative
” means, with
respect to any securities, that the issuer thereof may elect not to make any
number of periodic Distributions without any remedy arising under the terms of
the securities or related transaction agreements in favor of the holders of such
securities as a result of such issuer’s failure to pay Distributions, other than
one or more Permitted Remedies. Securities that include an
Alternative Payment Mechanism shall also be deemed to be Non-Cumulative for all
purposes of this Replacement Capital Covenant except in the definition of
“Non-Cumulative
Preferred
Stock.”
“
Non-Cumulative Preferred
Stock
”
means
preferred or preference stock which is Non-Cumulative.
“
NRSRO
” means a nationally
recognized statistical rating organization within the meaning of Section
3(a)(62) of the Securities Exchange Act.
“
Officer’s Certificate
” means
the Officer’s Certificate, dated March 19, 2009, with respect to the
Subordinated Debentures in accordance with the Subordinated
Indenture.
“
Optional Deferral Provision
”
means, as to any security or combination of securities, a provision in the terms
thereof or of the related transaction agreements, to the effect that the
issuer thereof may, in its sole discretion, defer in whole or in part payment of
Distributions on such securities for one or more consecutive Distribution
Periods of up to ten years without any remedy other than Permitted Remedies as a
result of such issuer’s failure to pay Distributions.
“
Parent
” means (i) the
Guarantor, (ii) any successor guarantor of the Subordinated Debentures or (iii)
any direct or indirect parent company of the Guarantor or such successor
guarantor.
“
Permitted Remedies
” means, as
to any security or combination of securities, any one or more of (i) rights in
favor of the holders thereof permitting such holders to elect one or more
directors of the issuer or its direct or indirect parent company (including any
such rights required by the listing requirements of any stock or securities
exchange on which such securities may be listed or traded), (ii) complete
or partial prohibitions on the issuer paying Distributions on or repurchasing
Common Stock or other securities that rank pari passu with or junior as to
Distributions to such securities for so long as Distributions on such
securities, including deferred Distributions, have not been paid in full or to
such lesser extent as may be specified in the terms of such securities or any
related transaction agreements, and (iii) provisions obligating the issuer to
cause such unpaid Distributions to be paid in full pursuant to an Alternative
Payment Mechanism.
“
Person
” means any individual,
corporation, partnership, joint venture, trust, limited liability company or
other legal entity, unincorporated organization or government or any agency or
political subdivision thereof.
“
Preferred Cap
” has the meaning
specified in the definition of Alternative Payment Mechanism.
“
Purchase Restriction
” has the
meaning specified in the definition of Alternative Payment
Mechanism.
“
Qualifying Capital Securities
”
means securities (other than Common Stock, Rights to acquire Common Stock,
Mandatorily Convertible Preferred Stock and Debt Exchangeable for Equity) that
rank pari passu with or junior to the Most Junior Subordinated Debt of the
issuer upon its liquidation, dissolution or winding up and, in the determination
of the Board of Directors reasonably construing the definitions and other terms
of this Replacement Capital Covenant, meet one of the following
criteria:
(a) in
connection with any redemption, defeasance or purchase of Subordinated
Debentures prior to the Stepdown Date:
(i) securities
issued by the Corporation, the Parent or any of their Subsidiaries that (A) have
no maturity or a maturity of at least 55 years and (B) either (1) are
subject to an Explicit Replacement Covenant and are Non-Cumulative or (2) have a
Mandatory Trigger Provision and an Optional Deferral Provision and are subject
to Intent-Based Replacement Disclosure;
(ii) securities
issued by the Corporation, the Parent or any of their Subsidiaries that (A) have
no maturity or a maturity of at least 35 years, (B) are subject to an
Explicit Replacement Covenant, (C) have an Optional Deferral Provision and (D)
have a Mandatory Trigger Provision;
(iii) securities
issued by the Corporation, the Parent or any of their Subsidiaries that (A) have
no maturity or a maturity of at least 55 years, (B) are subject to an
Explicit Replacement Covenant and (C) have an Optional Deferral
Provision;
(iv) securities
issued by the Corporation, the Parent or any of their Subsidiaries that (A) have
no maturity or a maturity of at least 55 years and (B) are subject to
Intent-Based Replacement Disclosure and (C) are Non-Cumulative;
(v) securities
issued by the Corporation, the Parent or any of their Subsidiaries that (A) have
no maturity or a maturity of at least 55 years, (B) have an Optional
Deferral Provision and (C) have a Mandatory Trigger Provision;
(vi) securities
issued by the Corporation, the Parent or any of their Subsidiaries that (A) have
no maturity or a maturity of at least 35 years, (B) are subject to an
Explicit Replacement Covenant and (C) are Non-Cumulative;
(vii) securities
issued by the Corporation, the Parent or any of their Subsidiaries that (A)
either (1) have no maturity or a maturity of at least 35 years and are subject
to Intent-Based Replacement Disclosure or (2) have no maturity or a
maturity of at least 25 years and are subject to an Explicit Replacement
Covenant, (B) have an Optional Deferral Provision and (C) have a Mandatory
Trigger Provision; or
(viii) any
other preferred stock issued by the Corporation or the Parent that (A) has no
prepayment obligation on the part of the issuer thereof, whether at the election
of the holders or otherwise, (B) has no maturity or a maturity of at least
55 years and (C) is subject to an Explicit Replacement Covenant;
or
(b) in
connection with any redemption, defeasance or purchase of the Subordinated
Debentures on or after the Stepdown Date:
(i) all
securities described under clause (a) of this definition;
(ii) securities
issued by the Corporation, the Parent or any of their Subsidiaries that (A) have
no maturity or a maturity of at least 55 years, (B) are subject to
Intent-Based Replacement Disclosure and (C) have an Optional Deferral
Provision;
(iii) securities
issued by the Corporation, the Parent or any of their Subsidiaries that (A) have
no maturity or a maturity of at least 35 years, (B) are subject to an
Explicit Replacement Covenant and (C) have an Optional Deferral
Provision;
(iv) securities
issued by the Corporation, the Parent or any of their Subsidiaries that (A)
either (1) have no maturity or a maturity of at least 35 years and are subject
to Intent-Based Replacement Disclosure or (2) have no maturity or a
maturity of at least 25 years and are subject to an Explicit Replacement
Covenant and (B) are Non-Cumulative;
(v) securities
issued by the Corporation, the Parent or any of their Subsidiaries that (A) have
no maturity or a maturity of at least 25 years, (B) are subject to
Intent-Based Replacement Disclosure, (C) have an Optional Deferral
Provision and (D) have a Mandatory Trigger Provision; or
(vi) any
other preferred stock issued by the Corporation or the Parent that (A) has no
prepayment obligation on the part of the issuer thereof, whether at the election
of the holders or otherwise and (B) either (1) has no maturity or a
maturity of at least 55 years and is subject to Intent-Based Replacement
Disclosure or (2) has no maturity or a maturity of at least 35 years and is
subject to an Explicit Replacement Covenant.
“
Qualifying Preferred Stock
”
means Non-Cumulative Preferred Stock of the Parent or the Corporation that (i)
ranks pari passu with or junior to other preferred stock of the issuer,
(ii) is perpetual with no prepayment obligation on the part of the issuer
thereof, whether at the election of the holders or otherwise, and (iii) either
(A) is subject to an Explicit Replacement Capital Covenant or (B) is subject to
Intent-Based Replacement Disclosure and has a provision that prohibits the
issuer thereof from paying any dividends thereon upon its failure to satisfy one
or more financial tests set forth in the terms of such securities or related
transaction agreements.
“
Qualifying Warrants
” means net
share settled warrants to purchase Common Stock that have an exercise price at
the date the Parent agrees to issue such warrants that is greater than the
current Market Value of the issuer’s Common Stock as of their date of issuance,
and do not entitle the issuer to redeem such warrants for cash and the holders
of such warrants are not entitled to require the issuer to repurchase such
warrants for cash in any circumstance; provided that the issuer states in the
prospectus or other offering or purchase document for any Qualifying Capital
Securities that include an Alternative Payment Mechanism or Mandatory Trigger
Provision its intention that any Qualifying Warrants issued in accordance with
such Alternative Payment Mechanism or Mandatory Trigger Provision will have
exercise prices at least 10% above the current Market Value of the issuer’s
Common Stock on the date of issuance of such Qualifying Warrants.
“
Redesignation Date
” means, as
to the then-effective Covered Debt, the earliest of (i) the date that is
two years prior to the final maturity date of such Covered Debt, (ii) if the
issuer elects to redeem or defease, or the Parent, the Corporation or a
majority-owned Subsidiary of the Parent elects to purchase, such Covered Debt
either in whole or in part with the consequence that after giving effect to such
redemption, defeasance or purchase the outstanding principal amount of such
Covered Debt is less than $100,000,000, the applicable redemption, defeasance or
purchase date and (iii) if the then outstanding Covered Debt is not Eligible
Subordinated Debt, the date on which the Corporation issues long-term
indebtedness for money borrowed that is Eligible Subordinated Debt.
“
Replacement Capital Covenant
”
has the meaning specified in the introduction to this instrument.
“
Replacement Capital
Securities
” means (i) Common Stock and/or (ii) securities that constitute
one or more of the following (as determined by the Board of Directors reasonably
construing the definitions and other terms of this Replacement Capital
Covenant):
|
(a)
|
Rights
to acquire Common Stock;
|
|
(b)
|
Debt
Exchangeable for Equity;
|
|
(c)
|
Mandatorily
Convertible Preferred Stock; and
|
|
(d)
|
Qualifying
Capital Securities.
|
“
Rights to acquire Common
Stock
” includes any right to acquire Common Stock, including any right to
acquire Common Stock pursuant to a stock purchase plan or employee benefit
plan. Rights to acquire Common Stock shall include Qualifying
Warrants.
“
Securities Exchange Act
” means
the Securities Exchange Act of 1934, as amended.
“
Share Cap
” has the meaning
specified in the definition of Alternative Payment Mechanism.
“
Stepdown Date
” means March 1,
2019.
“
Subordinated Debentures
” has
the meaning specified in
Recital
A
.
“
Subordinated Indenture
” has
the meaning specified in
Recital
A
.
“
Subsidiary
” means, at any
time, any Person the shares of stock or other ownership interests of which
having ordinary voting power to elect a majority of the board of directors or
other managers of such Person are at the time owned, or the management or
policies of which are otherwise at the time controlled, directly or indirectly
through one or more intermediaries (including other Subsidiaries) or both, by
another Person.
“
Termination Date
” has the
meaning specified in
Section
4(a)
.