EXHIBIT 4(Z)
, dated as of __________, _____ (the
"") by and among FPL Group, Inc., a Florida corporation
(the "Company"), FPL Group Capital Inc, a Florida corporation and a wholly-owned
subsidiary of the Company ("FPL Group Capital"), and ______________ 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").
WITNESSETH:
WHEREAS, the Company will issue $___________ aggregate Stated
Amount of its Securities (the "Securities") under the Purchase Contract
Agreement, dated as of ________, ____ (the "Purchase Contract Agreement"), by
and between the Purchase Contract Agent and the Company; and
WHEREAS, the Securities will initially consist of ___________
units referred to as "Type A Securities," each such security consisting of a ___
Debenture, Series __due ____________ issued concurrently by FPL Group Capital in
the principal amount of $______ (a "Debenture") and a Purchase Contract issued
by the Company ("Purchase Contract") pursuant to the Purchase Contract Agreement
and _________ units referred to as "Type B Securities," each such security
consisting of certain U.S. Treasury Securities and a Purchase Contract.
WHEREAS, the Debentures will be pledged pursuant to the Pledge
Agreement (the "Pledge Agreement"), dated as of ________, ____, by and between
the Company, ________________________, as Collateral Agent, Securities
Intermediary and Custodial Agent (the "Collateral Agent") and the Purchase
Contract Agent, to secure a Type A Security holder's obligations to purchase
common stock of the Company under the related Purchase Contract on the Purchase
Contract Settlement Date; and
WHEREAS, the Debentures of such holders electing to have their
Debentures that are not pledged pursuant to the Pledge Agreement remarketed, or
of such Type A Security holders who have elected not to settle the Purchase
Contracts related to their Type A Security from the proceeds of a Cash
Settlement and who have not early settled their Purchase Contracts, by the
Remarketing Agent, will be remarketed on the third Business Day immediately
preceding the Purchase Contract Settlement Date; and
WHEREAS, the applicable interest rate on the Debentures that
remain outstanding on and after the Purchase Contract Settlement Date will be
reset, on the third Business Day immediately preceding the Purchase Contract
Settlement Date, to the Reset Rate 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 ___% of the aggregate principal amount of the
Debentures on the third Business Day immediately preceding the Purchase Contract
Settlement Date, provided that in the determination of such Reset Rate, the
Company and FPL
Group Capital may limit the Reset Spread (a component of the Reset Rate) to be
no higher than ___ basis points (__%); and
WHEREAS, the Company has requested __________________________
______________________________ ("_____________") to act as the Reset Agent and
______________________ as the Remarketing Agent and in such capacities to
perform the services described herein; and
WHEREAS, _____________ is willing to act as Reset Agent and
Remarketing Agent and as such 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 Reset Agent and
Remarketing Agent. The Company and FPL Group Capital hereby appoint (a)
_______________, and ________________ hereby accepts such appointment, as the
Reset Agent to determine, in consultation with the Company and FPL Group Capital
and in the manner provided for in the Officer's Certificate establishing the
terms of the Debentures and the Indenture, the Reset Rate, that in the opinion
of the Reset Agent, will, when applied to the Debentures, enable the Debentures
to have an approximate market value of approximately ___% of the aggregate
principal amount of such Debentures on the third Business Day immediately
preceding the Purchase Contract Settlement Date, provided that the Company and
FPL Group Capital may limit such Reset Rate to be no higher than the rate on the
___ Benchmark Treasury plus ___ basis points (___%), 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, or (y) of Type A Security holders who have not early
settled the related Purchase Contracts and have 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, pursuant to the Supplemental
attached hereto as Exhibit A, among the Company, FPL Group Capital, the Purchase
Contract Agent and the Remarketing Agent (with such changes as the Company, 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) (all such Debentures
specified in clauses (x) and (y) above are hereinafter referred to as the
"Subject Debentures"). 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
not less than the percentage agreed to in the Supplemental
of the Subject Debentures on the Remarketing Date at a price of approximately
___% of the aggregate principal amount of such Subject Debentures plus any
accrued and unpaid interest. The Remarketing Agent shall not
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remarket any Subject Debentures for a price less than ___% of the aggregate
principal amount of such Debentures, plus accrued and unpaid interest 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 4.6 of the Pledge Agreement and Section 5.4 of the
Purchase Contract Agreement (both 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.
Section 3. Fees. With respect to the Remarketing, the
Remarketing Agent shall retain as a Remarketing Fee, an amount to be agreed upon
by the Company, FPL Group Capital and the Remarketing Agent, not exceeding ___
basis points (.___%) of the aggregate principal amount of the Subject Debentures
remarketed from any amount received in connection with such Remarketing in
excess of aggregate principal amount of such remarketed Subject Debentures plus
any accrued and unpaid interest. 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
Purchase Contract Settlement 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) The Company and FPL Group Capital may in their absolute
discretion replace _____________ as the Remarketing Agent and/or as the Reset
Agent in its capacities hereunder by giving notice prior to 3:00 p.m., New York
City time, on the eighth Business Day immediately prior to the Purchase Contract
Settlement Date. Any such replacement shall become effective upon the Company's
and FPL Group Capital's appointment of a successor to perform the services that
would otherwise be performed hereunder by the Remarketing Agent and/or the Reset
Agent. Upon providing such notice, the Company and FPL Group Capital shall use
all reasonable efforts to appoint such a successor and to enter into a
with such successor 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 the Purchase Contract Settlement Date.
Any such resignation shall become effective upon the Company's and FPL Group
Capital's appointment of a successor 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, the Company and FPL Group Capital shall
appoint such a successor and enter into a with it 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
3
or agent, may also engage in or have an interest in any financial or other
transaction with the Company 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 the Remarketing, if and to the extent required (in the opinion
of counsel for either the Remarketing Agent or the Company and FPL Group
Capital) by applicable law, regulations or interpretations in effect at the time
of such Remarketing, the Company 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 by the third Business Day
immediately preceding the Purchase Contract Settlement Date, 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, as the case may be, shall be subject to the terms and
conditions of the Supplemental Remarketing Agreement.
(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. The Company 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. [To be inserted]
Section 9. Termination of Remarketing Agreement. Unless
otherwise terminated in accordance with the provisions hereof and except as
otherwise provided herein, the Remarketing 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 the Purchase Contract Settlement Date, in the case of a __________
Remarketing. Notwithstanding any such termination, the obligations set forth in
Section 3 hereof shall survive and remain in full force and effect until all
amounts payable under said Section 3 shall have been paid in full. In addition,
the former Remarketing Agent and Reset Agent shall be entitled to the rights and
benefits, and subject to the obligations, under Section 8, notwithstanding the
replacement or resignation of the Remarketing Agent or Reset Agent.
Section 10. Remarketing Agent's Performance; Duty of Care. The
duties and obligations of the Remarketing 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,
4
EXCEPT TO THE EXTENT THAT THE LAWS OF ANY OTHER JURISDICTION SHALL BE
MANDATORILY APPLICABLE.
Section 12. Term of Agreement. 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 thereafter on which no Debentures are outstanding.
Section 13. Successors and Assigns. The rights and obligations
of the Company or FPL Group Capital hereunder may not be assigned or delegated
to any other person without the prior written consent of _____________, as the
Remarketing Agent, and the Purchase Contract Agent. The rights and obligations
of _____________ as the Remarketing Agent or _______________ as the Reset Agent
hereunder, may not be assigned or delegated to any other person without the
prior written consent of the Company and FPL Group Capital. This Agreement shall
inure to the benefit of and be binding upon the Company, FPL Group Capital and
_____________ as the Remarketing Agent and _______________ as 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 14. 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.
Section 15. 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 16. 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 17. Amendments. This Agreement may be amended by
any instrument in writing signed by the parties hereto.
Section 18. 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,
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 the Company or FPL Group
Capital, to FPL Group, Inc., 000 Xxxxxxxx Xxxxxxxxx,
0
Xxxx Xxxxx, Xxxxxxx 00000, Attention: Treasurer; if to the Remarketing Agent or
Reset Agent, ________________________________; and if to the Purchase Contract
Agent, ______________________________, or to such other address as any of the
above shall specify to the other in writing.
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IN WITNESS WHEREOF, each of the Company, FPL Group Capital,
the Remarketing Agent and the Purchase Contract Agent has caused this 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:
------------------------------------------------
By:
---------------------------------
Authorized Signatory
-----------------------------------------------
not individually but solely as Purchase
Contract Agent, trustee and as attorney-in-fact
for the holders of the Purchase Contracts
By:
----------------------------------
Name:
Title:
7
EXHIBIT A TO
REMARKETING AGREEMENT
FORM OF SUPPLEMENTAL REMARKETING AGREEMENT
This Supplemental Remarketing Agreement supplements a Remarketing
Agreement, dated ___________, 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 Type A Securities who have not
given notice that they intend to settle the Purchase Contracts related to their
Type A Securities 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
and the Indenture, as applicable.
2. Registration Statement and Prospectus. If required (in the opinion
of counsel to either the Remarketing Agent or the Company and FPL Group Capital)
by applicable law, the Company and FPL Group Capital have filed with the
Securities and Exchange Commission, and there has become effective, a
registration statement on Form S-3 (No. 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) Subject to Section 3(b), the following provisions of the
Underwriting Agreement shall be incorporated, as applicable, into this Agreement
and made applicable to the obligations of the Remarketing Agent, except as
explicitly amended hereby:
------------------------
and such provisions are made applicable to the obligations of the Remarketing
Agent to the extent applicable, except as such provisions are explicitly amended
hereby.
A-1
If the Remarketing Agent has determined, based on advice of
counsel, that applicable law, regulations or interpretations of the Securities
and Exchange 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 Sections ________) shall be
incorporated by reference into this Agreement and, to the extent they are
relevant to a Remarketing of Subject Debentures, made applicable hereto, except
as explicitly amended hereby; provided that (i) the following sentence shall be
added at the beginning of section ____: "The Remarketing Agreement, as
supplemented by the Supplemental Remarketing Agreement, constitutes a valid and
binding agreement of the Company and FPL Capital Group" and (ii) ___________.
(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 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 reference shall
be deemed to (i) refer to any prospectus or registration statement, or other
offering document, that the Company and FPL Group Capital is required to prepare
or file with respect to the Subject Debentures pursuant to applicable law,
regulations or interpretations of the Securities and Exchange 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 and
_______. References to issuance and/or sale of Debentures shall be deemed to
refer to Remarketing of the Subject Debentures. References in Section ___ to
information furnished by the Underwriters shall be deemed to refer to
information provided by the Remarketing Agent for use in the Registration
Statement and Prospectus.
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 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 the Company, FPL Group Capital and
the Remarketing Agent, which shall not exceed ___ basis points (.___%) of the
aggregate principal amount of the remarketed Debentures, from any amount
received from such Remarketing in excess of the aggregate principal amount of
such remarketed Debentures plus any accrued and unpaid interest. 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.
A-2
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, the
Company, FPL Group Capital and the registered holder or holders thereof.
Delivery of the Subject Debentures to be remarketed shall be made by the
Collateral Agent to the Remarketing Agent on ___________. Upon a successful
Remarketing, the Remarketing Agent may deduct the Remarketing Fee from any
amount of such Remarketing proceeds in excess of ________ 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 the Company agrees to
have such certificates available for inspection, packaging and checking by 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,
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 the Company or FPL Group
Capital, to FPL Group, Inc., 000 Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxx Xxxxxxx 00000,
Attention: ________; if to the Remarketing Agent or Reset Agent, to
_________________________; and if to the Purchase Contract Agent, to
_________________________, or to such other address as any of the above shall
specify to the other in writing.
7. 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.
A-3
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 the Company, FPL Group Capital and the Remarketing Agent.
Very truly yours,
FPL GROUP, INC.
By:
---------------------------
Name:
Title:
FPL GROUP CAPITAL INC
By:
---------------------------
Name:
Title:
CONFIRMED AND ACCEPTED:
------------------------------------------
By:
---------------------------------------
Authorized Signatory
----------------------------------
not individually but solely as Purchase
Contract Agent 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: ___ Debentures, Series due ____
Principal Amount of Supplemental Debentures: $
Underwriting Agreement, dated as of _______ _, __, between the Company, FPL
Group Capital and _______________________________________
Remarketing Fee: _____ % ($_____)
Remarketing Closing Date, Time and Location: _______________________
A-5
