EXHIBIT 4(AR)
REMARKETING AGREEMENT
REMARKETING AGREEMENT, 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")./1/
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
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1 This form of
Remarketing Agreement contemplates that the Corporate Units
will include
Debentures as a component of such securities. In the event
that preferred
trust securities are included instead of Debentures,
appropriate
revisions will be made to this form of Remarketing Agreement to
reflect such
substitution.
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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.
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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, 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 Remarketing
Agreement 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 Remarketing Agreement due to
changes in law or facts and circumstances).
Pursuant to the Supplemental
Remarketing Agreement, 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
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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 (.____%) 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
remarketing agreement 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
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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 remarketing agreement 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 Remarketing Agreement.
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
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.
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
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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 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
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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
pro
