EXHIBIT 4(AC)
, 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 _________, 200__ (the "Initial Remarketing Date"); 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 the Purchase
Contract Settlement Date (the "Secondary Remarketing Date"); and
WHEREAS, holders of the Debentures that are not a component 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 _________, 200__ or _________, 200__, as the case may be, (i) of
the Applicable Treasury Portfolio Purchase Price, plus any accrued and unpaid
interest (in the case of the First Remarketing) on the third Business Day
immediately preceding _________, 200__ or (ii) of the Aggregate Principal Amount
of the Debentures, plus any accrued and unpaid interest (in the case of the
Secondary Remarketing) on the third Business Day immediately preceding the
Purchase Contract Settlement Date, 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 establishing the terms of the
Debentures and in the Indenture, the Applicable Benchmark Treasury and the
applicable Reset Spread 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
2
(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) (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 (in the case of the Initial Remarketing),
and (ii) _____% of the aggregate principal amount of such Subject Debentures,
plus any accrued and unpaid interest (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 (in the case of the Initial Remarketing) and (y)
_____% of the aggregate principal amount of such Debentures, plus any accrued
and unpaid interest (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.
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
3
(.____%) of the aggregate principal amount of (i) the Applicable Treasury
Portfolio 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 Price (in the
case of the Initial Remarketing) and (y) the aggregate principal amount of such
remarketed Subject Debentures plus 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 either 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
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,
4
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
by a court of competent jurisdiction to have resulted from the Remarketing
Agent's and 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
5
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 Reset Agent 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 or 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
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 indemnification 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)
6
_________, 200__ 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.
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.
7
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
A-2
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 (ii) 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
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
A-3
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 preliminary prospectus was not
corrected in 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 the Remarketing Agent contained in this
subsection (b) of Section 11 shall remain operative and in full force
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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 of such other parties
from all liability arising out of such claim or proceeding and (ii)
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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 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 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) was 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 [_________, 200__]
[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 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 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 Price]
[the aggregate principal amount of the remarketed Debentures], from any amount
received from such Remarketing in excess of [the Applicable Treasury Portfolio
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 [_________, 200__] [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 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.
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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 [_________, 200__] [the Purchase Contract Settlement Date] if
after the date hereof and at or prior to [_________, 200__] [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.
This agreement may also be terminated at any time prior to the [_________,
200__] [the Purchase Contract Settlement Date], if in the judgment of the
Remarketing Agent the subject matter of any amendment or supplement to the
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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.
Very truly yours,
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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