EXHIBIT 4(af)
, dated as of _________, 200__ (the "Agreement")
by and among FPL Group, Inc., a Florida corporation ("FPL Group" or the
"Company"), FPL Group Capital Inc, a Florida corporation and a wholly-owned
subsidiary of FPL Group ("FPL Group Capital"), and The Bank of New York, not
individually but solely as purchase contract agent, trustee and attorney-in-fact
of the holders of Purchase Contracts ("Purchase Contract Agent"), and _________
("_________"), as remarketing agent (the "Remarketing Agent") and reset agent
(the "Reset Agent").
WITNESSETH:
WHEREAS, FPL Group will issue $_________ aggregate stated amount of its
Equity Units (initially consisting of Corporate Units (as defined below) under
the Purchase Contract Agreement, dated as of _________, 200__ (the "Purchase
Contract Agreement"), by and between the Purchase Contract Agent and FPL Group;
and
WHEREAS, the Corporate Units will initially consist of _________ units
referred to as "Corporate Units"; and
WHEREAS, FPL Group Capital will issue concurrently as a component of
the Corporate Units $_________ aggregate principal amount of its Series __
Debentures due _________, 200__ ("Debentures") issued pursuant to an Indenture,
dated as of June 1, 1999 (the "Indenture"), between The Bank of New York, as
Indenture Trustee, and FPL Group Capital, and FPL Group will absolutely,
irrevocably and unconditionally guarantee the payment of principal, interest and
premium, if any, on the Debentures pursuant to the Guarantee Agreement, dated as
of June 1, 1999, between FPL Group and The Bank of New York, as guarantee
trustee; and
WHEREAS, the Debentures that are a component of the Corporate Units
will be pledged pursuant to the Pledge Agreement (the "Pledge Agreement"), dated
as of _________, 200__, by and among FPL Group, _________, as collateral agent,
securities intermediary and custodial agent (the "Collateral Agent"), and the
Purchase Contract Agent, to secure a Corporate Unit holder's obligations to
purchase common stock, $.01 par value per share ("Common Stock"), of FPL Group
under the related Purchase Contract on the Purchase Contract Settlement Date;
and
WHEREAS, unless a Tax Event Redemption has occurred, the Debentures of
Corporate Unit holders who have not settled their Purchase Contracts early will
be remarketed (the "[Initial Remarketing]") on the third Business Day
immediately preceding the [Initial Reset Date] (as defined below) (the "[Initial
Remarketing Date]"); the [Initial Reset Date] shall mean any Business Day, as
selected by FPL Group Capital in its sole discretion, from _________, 200__ to
___________, 200__; and
WHEREAS, unless a Tax Event Redemption has occurred, if the [Initial
Remarketing] results in a Failed Remarketing, the Debentures of Corporate Unit
holders who have not given notice on or prior to the fifth Business Day prior to
the Purchase Contract Settlement Date that they intend to settle the Purchase
Contracts related to their Corporate Units with separate cash and who have not
settled their Purchase Contracts early will be remarketed (the "[Secondary
Remarketing]") on the third Business Day immediately preceding ___________,
200__ (the "[Secondary Remarketing Date]"; each of the [Initial Remarketing] and
the [Secondary Remarketing] is referred to herein as a "Remarketing," and each
of the [Initial Remarketing Date] and the [Secondary Remarketing Date] is
referred to herein as a "Remarketing Date"); and
WHEREAS, holders of the Debentures that are not components of Corporate
Units may elect to have their Debentures remarketed on the [Initial Remarketing
Date] or the [Secondary Remarketing Date], by providing notice of such election
within five Business Days prior to the applicable Remarketing Date, and
delivering their Debentures to the Custodial Agent; and
WHEREAS, the interest rate on the Debentures will be reset to the Reset
Rate on the third Business Day immediately preceding the applicable Remarketing
Date to be determined by the Reset Agent (as defined herein) as the rate that
such Debentures should bear in order to have an approximate market value of
_____%, as of the [Initial Reset Date] or _________, 200__, as the case may be,
(i) of the applicable Treasury Portfolio Purchase Price, plus any accrued and
unpaid interest on the Debentures (in the case of the First Remarketing) on the
third Business Day immediately preceding the [Initial Reset Date] or (ii) of the
Aggregate Principal Amount of the Debentures, plus any accrued and unpaid
interest thereon (in the case of the [Secondary Remarketing]) on the third
Business Day immediately preceding ___________, 200__, such Reset Rate to be
effective on the applicable Reset Date, provided that (i) in the determination
of such Reset Rate, FPL Group and FPL Group Capital shall, if applicable, limit
the Reset Rate to the maximum permitted by law and (ii) in the event that the
[Secondary Remarketing] results in a Failed Remarketing the interest rate on the
Debentures will not be reset; and
WHEREAS, FPL Group and FPL Group Capital have requested _________ to
act as the Reset Agent and the Remarketing Agent and in such capacities to
perform the services described herein; and
WHEREAS, _________ is willing to act as Reset Agent and as Remarketing
Agent and _________ as such in each such capacity is willing to perform such
duties on the terms and conditions expressly set forth herein;
NOW, THEREFORE, for and in consideration of the covenants herein made,
and subject to the conditions herein set forth, the parties hereto agree as
follows:
Section 1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Purchase Contract
Agreement or, if not therein stated, the Pledge Agreement.
Section 2. Appointment and Obligations of the Reset Agent and the
Remarketing Agent. FPL Group and FPL Group Capital hereby appoint
(a) _________, and _________ hereby accepts such appointment, as the
Reset Agent to determine, in consultation with FPL Group Capital
and in the manner provided for in the Officer's Certificate
2
establishing the terms of the Debentures and in the Indenture,
the Applicable Benchmark Treasury, the applicable Reset Spread
and, in the case of an Initial Reset Date prior to ____________,
200__, the portion of the Applicable Ownership Interest in the
Treasury Portfolio relating to the interest payment that would
have been due on the Debentures on ____________, 200__, in each
case on the seventh Business Day preceding the applicable Reset
Date and the applicable Reset Rate on the third Business Day
immediately preceding each applicable Reset Date; and
(b) _________, and _________ hereby accepts such appointment, as the
exclusive Remarketing Agent to remarket the Debentures (x) of
Debenture holders electing to have their Debentures remarketed on
either the [Initial Remarketing Date] or the [Secondary
Remarketing Date], as the case may be, or (y) (i) of all
Corporate Unit holders as to the [Initial Remarketing] and (ii)
if the [Initial Remarketing] has resulted in a Failed
Remarketing, of Corporate Unit holders who have not early settled
the related Purchase Contracts and have, in the case of the
[Secondary Remarketing], failed to notify the Purchase Contract
Agent, on or prior to the fifth Business Day immediately
preceding the Purchase Contract Settlement Date, of their
intention to settle the related Purchase Contracts through Cash
Settlement, for settlement on the Purchase Contract Settlement
Date (all such Debentures specified in clauses (x) and (y) above
are hereinafter referred to as the "Subject Debentures"), such
remarketing in each case will be pursuant to the Supplemental
attached hereto as Exhibit A, among FPL
Group, FPL Group Capital, the Purchase Contract Agent and the
Remarketing Agent (with such changes as FPL Group, FPL Group
Capital, the Purchase Contract Agent and the Remarketing Agent
may agree upon, it being understood that changes may be necessary
in the representations, warranties, covenants and other
provisions of the Supplemental due to
changes in law or facts and circumstances). Pursuant to the
Supplemental , the Remarketing Agent will
agree, subject to the terms and conditions set forth therein,
that the Remarketing Agent will use its reasonable efforts to
remarket the Subject Debentures on the applicable Remarketing
Date at a price of approximately (i) _____% of the applicable
Treasury Portfolio Purchase Price, plus any accrued and unpaid
interest on the Subject Debentures (in the case of the [Initial
Remarketing]), and (ii) _____% of the aggregate principal amount
of such Subject Debentures, plus any accrued and unpaid interest
on the Subject Debentures (in the case of the [Secondary
Remarketing]). The Remarketing Agent shall not remarket any
Subject Debentures for a price less than (x) _____% of the
applicable Treasury Portfolio Purchase Price, plus any accrued
and unpaid interest on the Subject Debentures (in the case of the
[Initial Remarketing]) and (y) _____% of the aggregate principal
amount of such Debentures, plus any accrued and unpaid interest
on the Subject Debentures (in the case of the [Secondary
Remarketing]), and shall not be required to purchase any Subject
Debentures not successfully remarketed. The proceeds of such
remarketing shall be paid to the Collateral Agent in accordance
with Section 6.2(b) of the Pledge Agreement and Section 4.3(b) of
the Purchase Contract Agreement (in the case of the [Initial
Remarketing]) and Section 4.6 of the Pledge Agreement and Section
5.4 of the Purchase Contract Agreement (in the case of the
[Secondary Remarketing]) (all of which Sections are incorporated
herein by reference). If fewer than all of the Subject Debentures
are remarketed in accordance with the terms hereof, a Remarketing
shall be deemed to have failed as to all Subject Debentures.
3
A holder of Debentures not pledged pursuant to the Pledge Agreement
shall have no right to have such Debentures remarketed unless (i) the
Remarketing Agent conducts a Remarketing pursuant to the terms of this
Agreement, (ii) the Subject Debentures have not been called for redemption as a
result of a Tax Event, (iii) the Remarketing Agent is able to find a purchaser
or purchasers for all Subject Debentures, and (iv) such purchaser or purchasers
deliver the purchase price therefor to the Remarketing Agent. The Remarketing
Agent is not obligated to purchase any Subject Debentures that would otherwise
remain unsold in a Remarketing. The Remarketing Agent shall not be obligated in
any case to provide funds to make payment upon tender of Subject Debentures for
remarketing.
Section 3. Fees. With respect to the Remarketing, the Remarketing Agent
shall retain as a Remarketing Fee, an amount to be agreed upon by FPL Group, FPL
Group Capital and the Remarketing Agent, not exceeding ____ basis points
(.____%) of the aggregate principal amount of (i) the applicable Treasury
Portfolio Purchase Price (in the case of the [Initial Remarketing]) and (ii) the
Aggregate Principal Amount of the Subject Debentures remarketed (in the case of
the [Secondary Remarketing]), from any amount received in connection with such
Remarketing in excess of (x) the applicable Treasury Portfolio Purchase Price
(in the case of the [Initial Remarketing]) and (y) the aggregate principal
amount of such remarketed Subject Debentures plus any accrued and unpaid
interest (in the case of the [Secondary Remarketing]). In addition, the Reset
Agent shall receive from FPL Group Capital a reasonable and customary fee for
acting as the Reset Agent (the "Reset Agent Fee"); provided, however, that if
the Remarketing Agent shall also act as the Reset Agent, then the Reset Agent
shall not be entitled to receive any such Reset Agent Fee. Payment of such Reset
Agent Fee shall be made by FPL Group Capital on the third Business Day
immediately preceding the applicable Remarketing Date in immediately available
funds or, upon the instructions of the Reset Agent, by certified or official
bank check or checks or by wire transfer.
Section 4. Replacement and Resignation of Remarketing Agent and Reset
Agent.
(a) FPL Group and FPL Group Capital may in their absolute discretion
replace _________ as the Remarketing Agent and/or the Reset Agent hereunder by
giving notice prior to 3:00 p.m., New York City time, on the eighth Business Day
immediately prior to any Remarketing Date. Any such replacement shall become
effective upon FPL Group's and FPL Group Capital's appointment of a successor or
successors to perform the services that would otherwise be performed hereunder
by the Remarketing Agent and/or the Reset Agent. Upon providing such notice, FPL
Group and FPL Group Capital shall use all reasonable efforts to appoint such a
successor or successors and to enter into a with such
successor or successors as soon as reasonably practicable.
(b) _________ may resign at any time and be discharged from its duties
and obligations hereunder as the Remarketing Agent and/or the Reset Agent by
giving notice prior to 3:00 p.m., New York City time, on the eighth Business Day
immediately prior to either Remarketing Date. Any such resignation shall become
effective upon FPL Group's and FPL Group Capital's appointment of a successor or
successors to perform the services that would otherwise be performed hereunder
by the Remarketing Agent and/or the Reset Agent. Upon receiving notice from the
Remarketing Agent and/or the Reset Agent that it wishes to resign hereunder, FPL
4
Group and FPL Group Capital shall appoint such a successor or successors and
enter into a with it or them as soon as reasonably
practicable.
Section 5. Dealing in the Securities. The Remarketing Agent, when
acting hereunder or acting in its individual or any other capacity, may, to the
extent permitted by law, buy, sell, hold or deal in any of the Debentures. With
respect to any Debentures owned by it, the Remarketing Agent may exercise any
vote or join in any action with like effect as if it did not act in any capacity
hereunder. The Remarketing Agent, in its individual capacity, either as
principal or agent, may also engage in or have an interest in any financial or
other transaction with FPL Group or FPL Group Capital as freely as if it did not
act in any capacity hereunder.
Section 6. Registration Statement and Prospectus. In connection with a
remarketing, if and to the extent required (in the opinion of counsel for the
Remarketing Agent or FPL Group and FPL Group Capital) by applicable law,
regulations or interpretations in effect at the time of such remarketing, FPL
Group and FPL Group Capital shall use their reasonable efforts to have a
registration statement relating to the Subject Debentures effective under the
Securities Act of 1933, as amended (the "Securities Act"), by the third Business
Day immediately preceding the applicable Remarketing Date, and shall furnish a
current prospectus and/or prospectus supplement to be used in such remarketing
by the Remarketing Agent under the Supplemental .
Section 7. Conditions to the Remarketing Agent's Obligations. (a) The
obligations of the Remarketing Agent to remarket and purchase the Subject
Debentures shall be subject to the terms and conditions of the Supplemental
.
(b) If at any time during the term of this Agreement, any Event of
Default (as defined therein) under the Indenture, or event that with the passage
of time or the giving of notice or both would become an Event of Default under
the Indenture, has occurred and is continuing, then the obligations and duties
of the Remarketing Agent under this Agreement shall be suspended until such
Event of Default or event has been cured. FPL Group and FPL Group Capital will
cause the Indenture Trustee to give the Remarketing Agent notice of all such
Events of Default and events of which the Indenture Trustee is aware.
Section 8. Indemnification. (a) FPL Group and FPL Group Capital each
severally and jointly agree to indemnify the Remarketing Agent and the Reset
Agent, and its respective affiliates, directors and officers and each person who
controls the Remarketing Agent or Reset Agent within the meaning of Section 15
of the Securities Act, (each such person being an "Indemnified Party,") from and
against any and all losses, claims, damages and liabilities, joint or several,
to which such Indemnified Party may become subject under any applicable federal
or state statute, regulation or common law, and related to or arising out of any
acts or omissions of the Remarketing Agent and Reset Agent in connection with
its respective duties and obligations as contemplated by Section 2 of this
Agreement and will reimburse any Indemnified Party for all expenses (including
reasonable attorney fees and expenses) as they are incurred in connection with
the investigation or defense of any pending or threatened claim or any action or
proceeding arising therefrom, whether or not such Indemnified Party is a party.
Neither FPL Group nor FPL Group Capital will be liable to any Indemnified Party
under the foregoing indemnification provision to the extent that any loss,
claim, damage, liability or expense is found in a final non-appealable judgment
5
by a court of competent jurisdiction to have resulted from the Remarketing
Agent's or Reset Agent's bad faith, willful misconduct or negligence. FPL Group
and FPL Group Capital also agree that no Indemnified Party shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to FPL
Group, FPL Group Capital or any of their respective security holders or
creditors related to or arising out of any acts or omissions of the Remarketing
Agent and Reset Agent in connection with their respective duties and obligations
as contemplated by Section 2 hereof, except to the extent that any loss, claim,
damage or liability is found in a final non-appealable judgment by a court of
competent jurisdiction to have resulted from the Remarketing Agent's or Reset
Agent's bad faith, willful misconduct or negligence.
(b) If the indemnification provided for in Section 8(a) shall be
unenforceable for any reason, FPL Group and FPL Group Capital each severally and
jointly agree to contribute to the losses, claims, damages and liabilities for
which such indemnification shall be unenforceable, in such proportion as shall
be appropriate to reflect (i) the relative fault of FPL Group and FPL Group
Capital on the one hand and the Remarketing Agent and/or Reset Agent, as the
case may be, on the other in connection with the acts or omissions which have
resulted in such losses, claims, damages, liabilities and expenses, (ii) the
relative benefits to FPL Group and FPL Group Capital of the work performed by
the Remarketing Agent and Reset Agent as contemplated by the Agreement, on the
one hand, and the value of the engagement to the Remarketing Agent and Reset
Agent on the other hand, and (iii) any other relevant equitable considerations;
provided, however, that no Indemnified Party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any party who is not also guilty of such
fraudulent misrepresentation. FPL Group and FPL Group Capital and the
Remarketing Agent and Reset Agent agree that it would not be just and equitable
if contribution pursuant to this Section 8(b) were to be determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above.
(c) Each Indemnified Party shall give written notice as promptly as
reasonably practicable to FPL Group and FPL Group Capital of any action
commenced against it in respect of which indemnification may be sought hereunder
but failure to so notify FPL Group and FPL Group Capital hereunder of any such
action shall not relieve FPL Group or FPL Group Capital of any liability
hereunder except to the extent FPL Group or FPL Group Capital is materially
prejudiced as a result of such failure to notify. FPL Group and FPL Group
Capital may participate at their own expense in the defense of any such action
and may, at their option, jointly assume the defense thereof with counsel
selected by FPL Group and FPL Group Capital and reasonably acceptable to the
Indemnified Party, and such Indemnified Party shall bear the fees and expenses
of any additional counsel retained by it. If the defendants in any such action
include both the Indemnified Party and FPL Group or FPL Group Capital or both
and counsel for FPL Group and/or FPL Group Capital shall have reasonably
concluded that there may be a conflict of interest involved in the
representation by a single counsel of both the Indemnified Party and FPL Group
and/or FPL Group Capital, the Indemnified Party shall have the right to select
separate counsel, satisfactory to FPL Group and FPL Group Capital, provided
that, in no event shall FPL Group and FPL Group Capital be liable for the fees
and expenses of more than one counsel separate from their own counsel in
addition to local counsel for all Indemnified Parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. FPL Group, FPL
6
Group Capital, the Remarketing Agent and the Reset Agent each agree that without
the prior written consent of the other parties to such action who are parties to
this Agreement, which consent shall not be unreasonably withheld, it will not
settle, compromise or consent to the entry of any judgment in any claim or
proceeding in respect of which such party intends to seek indemnity or
contribution under the provisions of this Section 8, unless such settlement,
compromise or consent (i) includes an unconditional release of such other
parties from all liability arising out of such claim or proceeding and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of such other parties.
Section 9. Termination of . Unless otherwise
terminated in accordance with the provisions hereof and except as otherwise
provided herein, this Agreement shall remain in full force and effect from the
date hereof until the first day after the date on which no Debentures are
outstanding, or, if earlier, the Business Day immediately following (i) the
[Initial Reset Date] or (ii) the Purchase Contract Settlement Date, as
applicable, in the case of a successful Remarketing. Notwithstanding any such
termination, the obligations set forth in Sections 3 and 8 hereof shall survive
and remain in full force and effect until all amounts payable under said
Sections 3 and 8 shall have been paid in full. In addition, each former
Remarketing Agent and Reset Agent shall be entitled to the rights and benefits,
and subject to the obligations, under Section 8 hereof, notwithstanding any such
termination or the replacement or resignation of such Remarketing Agent or Reset
Agent.
Section 10. Performance; Duty of Care. The duties and obligations of
the Remarketing Agent and of the Reset Agent hereunder shall be determined
solely by the express provisions of this Agreement and the Supplemental
Remarketing Agreement.
Section 11. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES THEREUNDER, EXCEPT TO THE EXTENT THAT THE LAWS OF
ANY OTHER JURISDICTION SHALL BE MANDATORILY APPLICABLE.
Section 12. Successors and Assigns. The rights and obligations of FPL
Group or FPL Group Capital hereunder may not be assigned or delegated to any
other person without the prior written consent of the Remarketing Agent, the
Reset Agent and the Purchase Contract Agent. The rights and obligations of the
Remarketing Agent or the Reset Agent hereunder may not be assigned or delegated
to any other person without the prior written consent of FPL Group and FPL Group
Capital. This Agreement shall inure to the benefit of and be binding upon FPL
Group, FPL Group Capital, the Purchase Contract Agent, the Remarketing Agent and
the Reset Agent, and their respective successors and assigns. The terms
"successors" and "assigns" shall not include any purchaser of Securities merely
because of such purchase.
Section 13. Headings. Section headings have been inserted in this
Agreement as a matter of convenience of reference only, and it is agreed that
such section headings are not a part of this Agreement and will not be used in
the interpretation of any provision of this Agreement.
7
Section 14. Severability. If any provision of this Agreement shall be
held or deemed to be or shall, in fact, be invalid, inoperative or unenforceable
as applied in any particular case in any or all jurisdictions because it
conflicts with any provisions of any constitution, statute, rule or public
policy or for any other reason, such circumstances shall not have the effect of
rendering the provision in question invalid, inoperative or unenforceable in any
other case, circumstances or jurisdiction, or of rendering any other provision
or provisions of this Agreement invalid, inoperative or unenforceable to any
extent whatsoever.
Section 15. Counterparts. This Agreement may be executed in
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
Section 16. Amendments. This Agreement may be amended by any instrument
in writing signed by the parties hereto.
Section 17. Notices. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing or transmitted by any standard form of
telecommunication, including telephone, telegraph or telecopy, and confirmed in
writing. All written notices and confirmations of notices by telecommunication
shall be deemed to have been validly given or made when delivered or mailed, by
registered or certified mail, return receipt requested and postage prepaid or
transmitted by facsimile. All such notices, requests, consents or other
communications shall be addressed as follows: if to FPL Group or FPL Group
Capital, to FPL Group, Inc., 000 Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000,
Attention: Treasurer; if to the Remarketing Agent or the Reset Agent, _________,
_______________, Attention: __________; and if to the Purchase Contract Agent,
The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Corporate Trust Administration, or to such other address, or such facsimile
number, as any of the above shall specify to the others in writing.
8
IN WITNESS WHEREOF, each of the Company, FPL Group Capital, the
Remarketing Agent, the Reset Agent and the Purchase Contract Agent has caused
this Remarketing Agreement to be executed in its name and on its behalf by one
of its duly authorized officers as of the date first above written.
FPL GROUP, INC.
By:__________________________________
Name:
Title:
FPL GROUP CAPITAL INC
By:__________________________________
Name:
Title:
CONFIRMED AND ACCEPTED:
_________________________,
as Remarketing Agent and Reset Agent
By:____________________________________
Name:
Title:
THE BANK OF NEW YORK not individually
but solely as Purchase Contract Agent,
trustee and as attorney-in-fact for the
holders of the Purchase Contracts
By:____________________________________
Name:
Title:
9
EXHIBIT A TO
REMARKETING AGREEMENT
FORM OF SUPPLEMENTAL REMARKETING AGREEMENT
This Supplemental Remarketing Agreement (the "Agreement") supplements a
Remarketing Agreement, dated _________, 200__, among the parties hereto (the
"Remarketing Agreement"), and the terms hereof together with the terms of the
Remarketing Agreement constitute the entire agreement among the parties with
respect to the remarketing of the Subject Debentures named in Schedule I hereto.
_________ (the "Remarketing agent") hereby agrees, subject to the terms and
conditions herein set forth or incorporated herein, to use its reasonable
efforts to remarket the Subject Debentures as set forth in Schedule I hereto.
All such Subject Debentures have been tendered for remarketing by the holders
thereof, or are Pledged Debentures of holders of Corporate Units [who have not
given notice that they intend to settle the Purchase Contracts related to their
Corporate Units by a Cash Settlement] and have not early settled their Purchase
Contracts.
1. Definitions. Terms defined in the Remarketing Agreement are used
herein with the meaning ascribed to them therein. Capitalized terms used and not
defined in this Agreement and the Remarketing Agreement shall have the meanings
assigned to them in the Purchase Contract Agreement, the Underwriting Agreement,
dated as of _________, 200__ (the "Underwriting Agreement"), among FPL Group,
FPL Group Capital and the underwriters named therein and the Indenture, as
applicable.
2. Registration Statement and Prospectus. If required (in the opinion
of counsel to either the Remarketing Agent or FPL Group and FPL Group Capital)
by applicable law, FPL Group and FPL Group Capital have filed with the
Securities and Exchange Commission ("Commission"), and there has become
effective, a registration statement on Form S-3 (Nos. 333-_____ and
333-_____-01), including a prospectus, relating to the Subject Debentures. Such
registration statement, and the documents incorporated by reference therein, as
amended to the date of this Agreement, is hereinafter referred to as the
"Registration Statement," and the prospectus included in the Registration
Statement, as amended or supplemented to the date of this Agreement to relate to
the Subject Debentures and to the remarketing of the Subject Debentures and the
documents incorporated by reference therein, is hereinafter referred to as the
"Prospectus" (including in each case all documents incorporated by reference).
3. Provisions Incorporated by Reference.
(a) If the Remarketing Agent has determined, based on advice of
counsel, that applicable law, regulations or interpretations of the Commission
make it necessary or advisable to deliver a current prospectus or other offering
document in connection with this remarketing, the entirety of the Underwriting
Agreement (other than the Schedules thereto and Sections [1], [5], [6] and [11]
thereof and Subsections [7(e)], [7(h)], [8(c)(ii)] and [8(g)] thereof) shall be
incorporated by reference into this Agreement and, to the extent they are
relevant to a remarketing of the Subject Debentures, made applicable hereto,
except as explicitly amended hereby; provided that (i) the following sentence
shall be added at the beginning of Section 3(__): "The Remarketing Agreement, as
supplemented by the Supplemental Remarketing Agreement, constitutes a valid and
binding obligation of FPL Group Capital." (ii) the following sentence shall be
added at the beginning of Subsection 4(__): "The Remarketing Agreement, as
supplemented by the Supplemental Remarketing Agreement, constitutes a valid and
binding agreement of FPL Group." and (iii) the following Section [11] shall
replace Section [11] of the Underwriting Agreement in its entirety:
"[11]. INDEMNIFICATION.
(a) FPL Group and FPL Group Capital, jointly and severally,
agree to indemnify and hold harmless the Remarketing Agent, each
officer and director of the Remarketing Agent and each person who
controls the Remarketing Agent within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all
losses, claims, damages or liabilities to which it may become subject
under the Securities Act or any other statute or common law and to
reimburse the Remarketing Agent, officer, director and controlling
person for any legal or other expenses (including, to the extent
hereinafter provided, reasonable counsel fees) when and as incurred by
them in connection with investigating any such losses, claims, damages
or liabilities or in connection with defending any actions, insofar as
such losses, claims, damages, liabilities, expenses or actions arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or
the Prospectus, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the
indemnity agreement contained in this subsection (a) of Section [11]
shall not apply to any such losses, claims, damages, liabilities,
expenses or actions arising out of, or based upon, any such untrue
statement or alleged untrue statement, or any such omission or alleged
omission, if such statement or omission was made in reliance upon and
in conformity with information furnished in writing, to FPL Group or
FPL Group Capital by or on behalf of the Remarketing Agent, expressly
for use in connection with the preparation of the Registration
Statement or the Prospectus or any amendment or supplement to either
thereof, or arising out of, or based upon, statements in or omissions
from the Statements of Eligibility on Form T-1 of the respective
Trustees under the Indenture and the Guarantee Agreement and of the
Purchase Contract Agent under the Purchase Contract Agreement; and
provided, further, that the indemnity agreement contained in this
subsection (a) of Section [11] in respect of any preliminary prospectus
(and for purposes of clause (ii) below, the Prospectus) shall not inure
to the benefit of the Remarketing Agent (or of any person controlling
the Remarketing Agent) on account of any such losses, claims, damages,
liabilities, expenses or actions arising from the remarketing of the
Subject Debentures to any person if the Remarketing Agent shall have
failed to send or give to such person (i) with or prior to the written
confirmation of such remarketing, a copy of the Prospectus or the
Prospectus as amended or supplemented, if any amendments or supplements
thereto shall have been furnished at or prior to the time of written
confirmation of the sale involved, but exclusive of any Incorporated
Documents, unless the alleged omission or alleged untrue statement with
respect to such preliminary prospectus is not corrected in the
Prospectus or the Prospectus as amended or supplemented at the time of
confirmation, or (ii) with or prior to the remarketing of such Subject
Debentures to such person, a copy of any amendment or supplement to the
Prospectus which shall have been furnished subsequent to such written
confirmation and prior to the delivery of such Subject Debentures to
such person, but exclusive of any Incorporated Documents, unless the
alleged omission or alleged untrue statement with respect to such
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preliminary prospectus or the Prospectus was not corrected in the
Prospectus or such amendment or supplement at the time of such delivery
of such Subject Debentures. The indemnity agreement of FPL Group and
FPL Group Capital contained in this subsection (a) of Section [11] and
the representations and warranties of FPL Group and FPL Group Capital
contained in Sections 3 and 4, respectively, of the Underwriting
Agreement incorporated herein by reference shall remain operative and
in full force and effect, regardless of any investigation made by or on
behalf of the Remarketing Agent, officer, director or any such
controlling person, and shall survive the remarketing of the Subject
Debentures. The Remarketing Agent agrees promptly to notify each of FPL
Group and FPL Group Capital of the commencement of any litigation or
proceedings against it or any such controlling person in connection
with the remarketing of the Subject Debentures.
(b) The Remarketing Agent agrees to indemnify and hold
harmless each of FPL Group and FPL Group Capital, their respective
officers and directors, and each person who controls FPL Group or FPL
Group Capital, as the case may be, within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act or
other statute or common law, and to reimburse each of them for any
legal or other expenses (including, to the extent hereinafter provided,
reasonable counsel fees) when and as incurred by them in connection
with investigating any such losses, claims, damages or liabilities, or
in connection with defending any actions, insofar as such losses,
claims, damages, liabilities, expenses or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus
or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading if such statement or omission was made in
reliance upon and in conformity with information furnished in writing
to FPL Group or FPL Group Capital by or on behalf of the Remarketing
Agent expressly for use in connection with the preparation of the
Registration Statement or the Prospectus or any amendment or supplement
to either thereof. The Remarketing Agent hereby furnishes to FPL Group
and FPL Group Capital expressly for use in the Registration Statement
and Prospectus: [insert information provided by the Remarketing Agent,
if any]. FPL Group and FPL Group Capital each acknowledge that the
statements set forth in the preceding sentence constitute the only
information furnished in writing by or on behalf of the Remarketing
Agent expressly for inclusion in any preliminary prospectus, the
Prospectus or the Registration Statement. The indemnity agreement of
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the Remarketing Agent contained in this subsection (b) of Section [11]
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of FPL Group, FPL Group Capital or
any of their respective officers or directors or any such controlling
person, and shall survive the remarketing of the Subject Debentures.
FPL Group and FPL Group Capital agree promptly to notify the
Remarketing Agent of the commencement of any litigation or proceedings
against FPL Group, FPL Group Capital (or any controlling person of
either thereof) or any of their respective officers or directors in
connection with the remarketing of the Subject Debentures.
(c) FPL Group, FPL Group Capital and the Remarketing Agent
each agree that, upon the receipt of notice of the commencement of any
action against it, its officers and directors, or any person
controlling it as aforesaid, in respect of which indemnity or
contribution may be sought under the indemnification provisions of this
Section [11] of this Agreement, it will promptly give written notice of
the commencement thereof to the party or parties against whom indemnity
or contribution shall be sought thereunder, but the omission so to
notify such indemnifying party or parties of any such action shall not
relieve such indemnifying party or parties from any liability which it
or they may have to the indemnified party otherwise than on account of
such indemnity agreement. In case such notice of any such action shall
be so given, such indemnifying party or parties shall be entitled to
participate at its own expense in the defense or, if it so elects, to
assume (in conjunction with any other indemnifying parties) the defense
of such action, in which event such defense shall be conducted by
counsel chosen by such indemnifying party or parties and satisfactory
to the indemnified party or parties who shall be defendant or
defendants in such action, and such defendant or defendants shall bear
the fees and expenses of any additional counsel retained by them; but
if an indemnifying party shall elect not to assume the defense of such
action, such indemnifying party will reimburse such indemnified party
or parties for the reasonable fees and expenses of any counsel retained
by them; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and
counsel for the indemnifying party shall have reasonably concluded that
there may be a conflict of interest involved in the representation by
such counsel of both the indemnifying party and the indemnified party,
the indemnified party or parties shall have the right to select
separate counsel, satisfactory to the indemnifying party or parties, to
participate in the defense of such action on behalf of such indemnified
party or parties at the expense of the indemnifying party or parties
(it being understood, however, that the indemnifying party or parties
shall not be liable for the expenses of more than one separate counsel
representing the indemnified parties who are parties to such action).
FPL Group, FPL Group Capital and the Remarketing Agent each agree that
without the prior written consent of the other parties to such action
who are parties to this agreement, which consent shall not be
unreasonably withheld, it will not settle, compromise or consent to the
entry of any judgment in any claim or proceeding in respect of which
such party intends to seek indemnity or contribution under the
indemnification provisions of this Section [11], unless such
settlement, compromise or consent (i) includes an unconditional release
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of such other parties from all liability arising out of such claim or
proceeding and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of such other
parties.
(d) If, or to the extent, the indemnification provided for in
subsections (a) or (b) above shall be unenforceable under applicable
law by an indemnified party, each indemnifying party agrees to
contribute to such indemnified party with respect to any and all
losses, claims, damages, liabilities and expenses for which each such
indemnification provided for in subsections (a) or (b) above shall be
unenforceable, in such proportion as shall be appropriate to reflect
(i) the relative fault of FPL Group and FPL Group Capital on the one
hand and the Remarketing Agent and/or Reset Agent, as the case may be,
on the other in connection with the statements or omissions which have
resulted in such losses, claims, damages, liabilities and expenses,
(ii) the relative benefits received by FPL Group and FPL Group Capital
on the one hand and the Remarketing Agent on the other hand from the
remarketing of the Subject Debentures pursuant to this agreement, and
(iii) any other relevant equitable considerations; provided, however,
that no indemnified party guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution with respect thereto from any indemnifying
party not guilty of such fraudulent misrepresentation. Relative fault
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by FPL Group and FPL Group Capital or the Remarketing Agent
and/or Reset Agent and each such party's relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. FPL Group, FPL Group Capital and the Remarketing
Agent agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were to be determined by pro rata
allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above.
Notwithstanding the provisions of this subsection (d), the Remarketing
Agent shall not be required to contribute in excess of the amount equal
to the excess of (i) the total price at which the Subject Debentures
remarketed by it were offered, over (ii) the amount of any damages
which the Remarketing Agent has otherwise been required to pay by
reason of any such untrue or alleged untrue statement or omission or
alleged omission."
(b) To the extent the Underwriting Agreement is applicable hereto,
references therein to (i) the "Underwriter" or "Underwriters" or the
"Representative" or "Representatives", as the case may be, shall be deemed to
refer to the Remarketing Agent; (ii) "Securities" shall be deemed to refer to
the Subject Debentures; (iii) "this Agreement" shall be deemed to refer to the
Remarketing Agreement as supplemented by this Agreement, (iv) "the date hereof"
shall be deemed to refer to the third Business Day preceding [the Initial Reset
Date] [the Purchase Contract Settlement Date], and (v) "Closing Date" shall be
deemed to refer to the Remarketing Closing Date specified in Schedule I hereto
(the "Remarketing Closing Date"). To the extent the provisions of such
Underwriting Agreement refer to the "Prospectus" or the "Registration
Statement," such references shall be deemed to (i) refer to any prospectus or
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registration statement, or other offering document, that FPL Group and FPL Group
Capital are required to prepare or file with respect to the Subject Debentures
pursuant to applicable law, regulations or interpretations of the Commission in
effect at the time of the remarketing of such Subject Debentures, including all
documents incorporated by reference therein and (ii) refer to each such document
as amended or supplemented to the third Business Day preceding the Remarketing
Date. The term "Incorporated Documents" in such Underwriting Agreement shall be
deemed to include those filed and incorporated through the date hereof.
References to issuance and/or sale of Debentures shall be deemed to refer to
remarketing of the Subject Debentures.
4. Purchase and Sale; Remarketing Fee. Subject to the terms and
conditions and in reliance upon the representations and warranties herein set
forth or incorporated herein, the Remarketing Agent agrees to use its reasonable
efforts to remarket, and to purchase from the registered holder or holders
thereof in the manner specified in Section 5 hereof, the principal amount of the
Subject Debentures set forth in Schedule I hereto at a purchase price not less
than _____% of [the applicable Treasury Portfolio Purchase Price, plus accrued
and unpaid interest on the Subject Debentures] [the aggregate principal amount
of such Debentures, plus any accrued and unpaid interest thereon]. In connection
therewith under the terms of the Debentures, the registered holder or holders
thereof have agreed, in the manner specified in Section 5 hereof, to pay to the
Remarketing Agent a Remarketing Fee equal to an amount determined by agreement
of FPL Group, FPL Group Capital and the Remarketing Agent, which shall not
exceed ____ basis points (.____%) of [the applicable Treasury Portfolio Purchase
Price] [the aggregate principal amount of the remarketed Debentures], from any
amount received from such Remarketing in excess of [the applicable Treasury
Portfolio Purchase Price] [the aggregate principal amount of such remarketed
Debentures plus any accrued and unpaid interest thereon]. If fewer than all of
the Subject Debentures are remarketed in accordance with the terms hereof, the
Remarketing shall be deemed to have failed as to all Subject Debentures.
5. Delivery and Payment. Delivery of payment for the remarketed Subject
Debentures and payment of the Remarketing Fee shall be made on the Remarketing
Closing Date (as defined in Schedule I hereto) at the location and time
specified in Schedule I hereto (or such later date not later than five Business
Days after such date as the Remarketing Agent shall designate), which date and
time may be postponed by agreement among the Remarketing Agent, FPL Group, FPL
Group Capital and the registered holder or holders of the Subject Debentures.
Delivery of the Subject Debentures to be remarketed shall be made by the
Collateral Agent and the Custodial Agent, as applicable, to the Remarketing
Agent on the fourth Business Day immediately preceding [the Initial Reset Date]
[the Purchase Contract Settlement Date]. Upon a successful Remarketing, the
Remarketing Agent may deduct the Remarketing Fee from any amount of such
Remarketing proceeds in excess of the [Treasury Portfolio Purchase Price]
[aggregate principal amount of such remarketed Debentures plus accrued and
unpaid interest, if any,] or if the remarketed Debentures are represented by a
Global Security, payment of the Remarketing Fee may be made by any method of
transfer agreed upon by the Remarketing Agent and the Depositary for the
Debentures under the Indenture.
If the Debentures are not represented by a Global Security,
certificates for the Debentures shall be registered in such names and
denominations as the Remarketing Agent may request, and FPL Group Capital agrees
to have such certificates available for inspection, packaging and checking by
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the Remarketing Agent in New York, New York not later than 1:00 p.m. on the
Business Day prior to the Remarketing Closing Date.
6. Notices. Unless otherwise specified, any notices, requests, consents
or other communications given or made hereunder or pursuant hereto shall be made
in writing or transmitted by any standard form of telecommunication, including
telephone, telegraph or telecopy, and confirmed in writing. All written notices
and confirmations of notices by telecommunication shall be deemed to have been
validly given or made when delivered or mailed, by registered or certified mail,
return receipt requested and postage prepaid or transmitted by facsimile. All
such notices, requests, consents or other communications shall be addressed as
follows: if to FPL Group or FPL Group Capital, to FPL Group, Inc., 000 Xxxxxxxx
Xxxxxxxxx, Xxxx Xxxxx Xxxxxxx 00000, Attention: Treasurer; if to the Remarketing
Agent or the Reset Agent, to _________, _______________, Attention: __________;
and if to the Purchase Contract Agent, The Bank of New York, 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust Administration, or to such
other address or such facsimile number as any of the above shall specify to the
other in writing.
7. Termination. This agreement may be terminated by the Remarketing
Agent by delivering written notice thereof to FPL Group and FPL Group Capital,
at any time prior to [the Initial Reset Date] [the Purchase Contract Settlement
Date] if after the date hereof and at or prior to [the Initial Reset Date] [the
Purchase Contract Settlement Date]:
(a) (i) there shall have occurred any general suspension of
trading in securities on The New York Stock Exchange, Inc. (the "NYSE")
or there shall have been established by the NYSE or by the Commission
or by any federal or state agency or by the decision of any court any
limitation on prices for such trading or any general restrictions on
the distribution of securities, or trading in any securities of FPL
Group or FPL Group Capital shall have been suspended or limited by any
exchange located in the United States or on the over-the-counter market
located in the United States or a general banking moratorium declared
by New York or federal authorities or (ii) there shall have occurred
any new material outbreak of hostilities, including, but not limited
to, an escalation of hostilities which existed prior to the date of
this agreement or other national or international calamity or crisis,
the effect of any such event specified in (i) or (ii) above on the
financial markets of the United States shall be such as to make it
impracticable for the Remarketing Agent to enforce contracts for the
remarketing of the Subject Debentures; or
(b) (i) there shall have been any downgrading or any notice of
any intended or potential downgrading in the ratings accorded to the
Debentures or any securities of FPL Group Capital which are of the same
class as the Debentures by either [Xxxxx'x Investor Service, Inc.
("Moody's")] or [Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx Companies, Inc. ("S&P")], or (ii) either [Moody's] or [S&P]
shall have publicly announced that either has under surveillance or
review, with possible negative implications, its ratings of the
Debentures or any securities of FPL Group Capital which are of the same
class as the Debentures, the effect of any such event specified in (i)
or (ii) above which, in the reasonable judgment of the Remarketing
Agreement, makes it impracticable or inadvisable for the Remarketing
Agent to remarket the Subject Debentures.
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This agreement may also be terminated at any time prior to the [the
Initial Reset Date] [the Purchase Contract Settlement Date], if in the judgment
of the Remarketing Agent the subject matter of any amendment or supplement to
the Registration Statement or the Prospectus prepared and furnished by FPL Group
and FPL Group Capital reflects a material adverse change in the business,
properties or financial condition of FPL Group and its subsidiaries taken as a
whole or FPL Group Capital and its subsidiaries taken as a whole which renders
it either inadvisable to proceed with such remarketing, if any, or inadvisable
to proceed with the delivery of the Subject Debentures to be remarketed
hereunder. Any termination of this agreement pursuant to this Section 7 shall be
without liability of any party to any other party except as otherwise provided
in subsections ___ and ___ of Section __ hereof.
8. Counterparts. This Agreement may be executed in counterparts, each of which
shall be regarded as an original and all of which shall constitute one and the
same document.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among FPL
Group, FPL Group Capital, the Remarketing Agent and the Purchase Contract Agent.
FPL GROUP, INC.
By:__________________________________
Name:
Title:
FPL GROUP CAPITAL INC
By:__________________________________
Name:
Title:
CONFIRMED AND ACCEPTED:
_________________________,
as Remarketing Agent
By:____________________________________
Name:
Title:
THE BANK OF NEW YORK not individually
but solely as Purchase Contract Agent,
trustee and as attorney-in-fact for the
holders of the Purchase Contracts
By:____________________________________
Name:
Title:
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SCHEDULE I
Title of Subject Debentures: Series __ Debentures due _________, 200__.
Principal Amount of Subject Debentures: $
Reset Spread: __%
Applicable Benchmark Treasury:
Underwriting Agreement, dated as of _________, 200__, between FPL Group, FPL
Group Capital, _________ and _________, as representatives of the underwriters
named therein.
Remarketing Fee: _____ % ($_____)
Remarketing Closing Date, Time and Location: _______________________
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