SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE
AMENDMENT NO. 2 TO
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
FLORIDA POWER & LIGHT COMPANY
(Exact name of registrant as specified in its charter)
Florida 59-0247775
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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700 Universe Boulevard
Juno Beach, Florida 33408
(561) 694-4000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive office)
Dennis P. Coyle, Esq. Thomas R. McGuigan, P.A. Robert J. Reger, Jr., Esq.
General Counsel and Secretary Steel Hector & Davis LLP Thelen Reid & Priest LLP
Florida Power & Light Company 200 South Biscayne Boulevard 875 Third Avenue
700 Universe Boulevard Suite 4000 New York, New York 10022
Juno Beach, Florida 33408 Miami, Florida 33131 (212) 603-2000
(561) 694-4000 (305) 577-7000
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(Names and addresses, including zip codes, and telephone numbers,
including area codes, of agents for service)
It is respectfully requested that the Commission also send copies of all
notices, orders and communications to:
Richard L. Harden, Esq.
Hunton & Williams LLP
200 Park Avenue
New York, New York 10166
(212) 309-1000
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS.
**1(a) - Form of Underwriting Agreement.
**1(b) - Form of Distribution Agreement.
**4(a) - Restated Articles of Incorporation of FPL dated March 23, 1992 (filed as Exhibit 3(i)a to Form 10-K for the year ended December 31, 1993, File No. 1-3545).
**4(b) - Amendment to FPL's Restated Articles of Incorporation dated March 23, 1992 (filed as Exhibit 3(i)b to Form 10-K for the year ended December 31, 1993, File No. 1-3545).
**4(c) - Amendment to FPL's Restated Articles of Incorporation dated May 11, 1992 (filed as Exhibit 3(i)c to Form 10-K for the year ended December 31, 1993, File No. 1-3545).
**4(d) - Amendment to FPL's Restated Articles of Incorporation dated March 12, 1993 (filed as Exhibit 3(i)d to Form 10-K for the year ended December 31, 1993, File No. 1-3545).
**4(e) - Amendment to FPL's Restated Articles of Incorporation dated June 16, 1993 (filed as Exhibit 3(i)e to Form 10-K for the year ended December 31, 1993, File No. 1-3545).
**4(f) - Amendment to FPL's Restated Articles of Incorporation dated August 31, 1993 (filed as Exhibit 3(i)f to Form 10-K for the year ended December 31, 1993, File No. 1-3545).
**4(g) - Amendment to FPL's Restated Articles of Incorporation dated November 30, 1993 (filed as Exhibit 3(i)g to Form 10-K for the year ended December 31, 1993, File No. 1-3545).
**4(h) - Bylaws of FPL dated May 11, 1992 (filed as Exhibit 3 to Form 8-K dated May 1, 1992, File No. 1-3545).
**4(i) - Mortgage and Deed of Trust dated as of January 1, 1944, and One hundred and two Supplements thereto, between FPL and Deutsche Bank Trust Company Americas, Trustee (the "Mortgage") (filed as Exhibit B-3, File No. 2-4845; Exhibit 7(a), File No. 2-7126; Exhibit 7(a), File No. 2-7523; Exhibit 7(a), File No. 2-7990; Exhibit 7(a), File No. 2-9217; Exhibit 4(a)-5, File No. 2-10093; Exhibit 4(c), File No. 2-11491; Exhibit 4(b)-1, File No. 2-12900; Exhibit 4(b)-1, File No. 2-13255; Exhibit 4(b)-1, File No. 2-13705; Exhibit 4(b)-1, File No. 2-13925; Exhibit 4(b)-1, File No. 2-15088; Exhibit 4(b)-1, File No. 2-15677; Exhibit 4(b)-1, File No. 2-20501; Exhibit 4(b)-1, File No. 2-22104; Exhibit 2(c), File No. 2-23142; Exhibit 2(c), File No. 2-24195; Exhibit 4(b)-1, File No. 2-25677; Exhibit 2(c), File No. 2-27612; Exhibit 2(c), File No. 2-29001; Exhibit 2(c), File No. 2-30542; Exhibit 2(c), File No. 2-33038; Exhibit 2(c), File No. 2-37679; Exhibit 2(c), File No. 2-39006; Exhibit 2(c), File No. 2-41312; Exhibit 2(c), File No. 2-44234; Exhibit 2(c), File No. 2-46502; Exhibit 2(c), File No. 2-48679; Exhibit 2(c), File No. 2-49726; Exhibit 2(c), File No. 2-50712; Exhibit 2(c), File No. 2-52826; Exhibit 2(c), File No. 2-53272; Exhibit 2(c), File No. 2-54242; Exhibit 2(c), File No. 2-56228; Exhibits 2(c) and 2(d), File No. 2-60413; Exhibits 2(c) and 2(d), File No. 2-65701; Exhibit 2(c), File No. 2-66524; Exhibit 2(c), File No. 2-67239; Exhibit 4(c), File No. 2-69716; Exhibit 4(c), File No. 2-70767; Exhibit 4(b), File No. 2-71542; Exhibit 4(b), File No. 2-73799; Exhibits 4(c), 4(d) and 4(e), File No. 2-75762; Exhibit 4(c), File No. 2-77629; Exhibit 4(c), File No. 2-79557; Exhibit 99(a) to Post-Effective Amendment No. 5 to Form S-8, File No. 33-18669; Exhibit 99(a) to Post-Effective Amendment No. 1 to Form S-3, File No. 33-46076; Exhibit 4(b) to Form 10-K for the year ended December 31, 1993, File No. 1-3545; Exhibit 4(i) to Form 10-Q for the quarter ended June 30, 1994, File No. 1-3545; Exhibit 4(b) to Form 10-Q for the quarter ended June 30, 1995, File No. 1-3545; Exhibit 4(a) to Form 10-Q for the quarter ended March 31, 1996, File No. 1-3545; Exhibit 4 to Form 10-Q for the quarter ended June 30, 1998, File No. 1-3545; Exhibit 4 to Form 10-Q for the quarter ended March 31, 1999, File No. 1-3545; Exhibit 4(f) to Form 10-K for the year ended December 31, 2000, File No. 1-3545;
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Exhibit 4(g) to Form 10-K for the year ended December 31, 2000, File No. 1-3545; and Exhibit 4(o), File No. 333-102169.
**4(j) - Form of Supplemental Indenture relating to First Mortgage Bonds.
**4(k) One Hundred Third Supplemental Indenture, dated as of April 1, 2003, between Florida Power & Light Company and Deutsche Bank Trust Company Americas, Trustee.
*4(l) One Hundred Fourth Supplemental Indenture, dated as of October 1, 2003, between Florida Power & Light Company and Deutsche Bank Trust Company Americas, Trustee.
**5(a) - Opinion and Consent of Steel Hector & Davis LLP, dated December 23, 2002, counsel to FPL.
**5(a).1 - Opinion and Consent of Steel Hector & Davis LLP, dated April 4, 2003, counsel to FPL (filed as Exhibit 5(a) to Post- Effective Amendment No. 1 to Form S-3, File No. 333-102172).
*5(a).2 - Opinion and Consent of Steel Hector & Davis LLP, dated October 15, 2003, counsel to FPL.
**5(b) - Opinion and Consent of Thelen Reid & Priest LLP, dated December 23, 2002, co-counsel to FPL.
**5(b).1 - Opinion and Consent of Thelen Reid & Priest LLP, dated April 4, 2003, co-counsel to FPL (filed as Exhibit 5(b) to Post-Effective Amendment No. 1 to Form S-3, File No. 333-102172).
*5(b).2 - Opinion and Consent of Thelen Reid & Priest LLP, dated October 15, 2003, co-counsel to FPL.
**12 - Computation of Ratio of Earnings to Fixed Charges (filed as Exhibit 12(b) to Form 10-K for the year ended December 31, 2001, File No. 1-3545 and Exhibit 12(b) to Form 10-Q for the quarter September 30, 2002, File No. 1-3545).
**23(a) - Independent Auditors' Consent of Deloitte & Touche LLP.
**23(b) - Consent of Steel Hector & Davis LLP (included in Exhibit 5(a) to Form S-3, File No. 333-102172).
**23(b).1- Consent of Steel Hector & Davis LLP (included in Exhibit 5(a) to Post-Effective Amendment No. 1 to Form S-3, File No. 333-102172).
*23(b).2 - Consent of Steel Hector & Davis LLP (included in Exhibit 5(a).2).
**23(c) - Consent of Thelen Reid & Priest LLP (included in Exhibit 5(b) to Form S-3, File No. 333-102172).
**23(c).1- Consent of Thelen Reid & Priest LLP (included in Exhibit 5(b) to Post-Effective Amendment No. 1 to Form S-3, File No. 333-102172).
*23(c).2 - Consent of Thelen Reid & Priest LLP (included in Exhibit 5(b).2).
**24 - Power of Attorney.
**25 - Statement of Eligibility on Form T-1 of Deutsche Bank Trust Company Americas with respect to the Mortgage.
*Filed herewith.
**Previously filed.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this amendment to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Juno Beach, State of Florida on the 17th day of October, 2003.
FLORIDA POWER & LIGHT COMPANY
By: /s/ Dennis P. Coyle
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Dennis P. Coyle
General Counsel and Secretary
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Pursuant to the requirements of the Securities Act of 1933, this amendment to the registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Lewis Hay III* Chairman of the Board, Chief October 17, 2003
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Lewis Hay III Executive Officer and Director
(Principal Executive Officer)
/s/ Moray P. Dewhurst* Senior Vice President, Finance October 17, 2003
---------------------------
Moray P. Dewhurst and Chief Financial Officer and
Director (Principal Financial
Officer)
/s/ K. Michael Davis* Vice President, Accounting, October 17, 2003
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K. Michael Davis Controller and Chief Accounting
Officer (Principal Accounting
Officer)
/s/ Dennis P. Coyle* Director October 17, 2003
---------------------------
Dennis P. Coyle
/s/ Lawrence J. Kelleher* Director October 17, 2003
---------------------------
Lawrence J. Kelleher
/s/ Armando J. Olivera* Director October 17, 2003
---------------------------
Armando J. Olivera
/s/ Antonio Rodriguez* Director October 17, 2003
---------------------------
Antonio Rodriguez
/s/ John Stall* Director October 17, 2003
---------------------------
John Stall
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*By: /s/ Dennis P. Coyle
---------------------------------
Dennis P. Coyle, Attorney-in-Fact
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EXHIBIT INDEX
5(a).2 Opinion of Steel Hector & Davis LLP, dated October 15, 2003,
counsel to FPL.
5(b).2 Opinion of Thelen Reid & Priest LLP, dated October 15, 2003,
co-counsel to FPL.
4(l) One Hundred Fourth Supplemental Indenture, dated as of October 1,
2003, between Florida Power & Light Company and Deutsche Bank
Trust Company Americas, Trustee.
23(b).2 - Consent of Steel Hector & Davis LLP (included in Exhibit 5(a).2).
23(c).2 - Consent of Thelen Reid & Priest LLP (included in Exhibit 5(b).2).
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EXHIBIT 4(l)
This instrument was prepared by:
Paul I. Cutler
Florida Power & Light Company EXECUTED IN 60 COUNTERPARTS OF
700 Universe Boulevard WHICH THIS IS COUNTERPART NO. 3
Juno Beach, Florida 33408
TO
DEUTSCHE BANK TRUST COMPANY AMERICAS
(FORMERLY KNOWN AS BANKERS TRUST COMPANY)
AS TRUSTEE UNDER FLORIDA POWER & LIGHT
COMPANY'S MORTGAGE AND DEED OF TRUST,
DATED AS OF JANUARY 1, 1944.
ONE HUNDRED FOURTH SUPPLEMENTAL INDENTURE
RELATING TO $300,000,000 PRINCIPAL AMOUNT
OF FIRST MORTGAGE BONDS, 5.95% SERIES
DUE OCTOBER 1, 2033
DATED AS OF OCTOBER 1, 2003
THIS SUPPLEMENTAL INDENTURE HAS BEEN EXECUTED IN SEVERAL COUNTERPARTS, ALL OF WHICH CONSTITUTE BUT ONE AND THE SAME INSTRUMENT. THIS SUPPLEMENTAL INDENTURE HAS BEEN RECORDED IN SEVERAL COUNTIES AND DOCUMENTARY STAMP TAXES AS REQUIRED BY LAW IN THE AMOUNT OF $1,050,000.00, AND NON-RECURRING INTANGIBLE TAXES AS REQUIRED BY LAW IN THE AMOUNT OF $76,161.00 WERE PAID ON THE SUPPLEMENTAL INDENTURE RECORDED IN THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA.
NOTE TO EXAMINER: THE NEW BONDS ("NEW BONDS") BEING ISSUED IN CONNECTION WITH THIS SUPPLEMENTAL INDENTURE ARE SECURED BY REAL PROPERTY AND PERSONAL PROPERTY LOCATED BOTH WITHIN FLORIDA AND OUTSIDE OF FLORIDA. THE AGGREGATE FAIR MARKET VALUE OF THE COLLATERAL EXCEEDS THE AGGREGATE PRINCIPAL AMOUNT OF (Y) THE NEW BONDS PLUS (Z) THE OTHER OUTSTANDING BONDS SECURED BY THE MORTGAGE SUPPLEMENTED HEREBY AND ALL PREVIOUS SUPPLEMENTAL INDENTURES THERETO. THE INTANGIBLE TAX HAS BEEN COMPUTED PURSUANT TO SECTION 199.133 (2), FLORIDA STATUTES, BY (I) DETERMINING THE PERCENTAGE OF THE AGGREGATE FAIR MARKET VALUE OF THE COLLATERAL CONSTITUTING REAL PROPERTY SITUATED IN FLORIDA AND BY MULTIPLYING THAT PERCENTAGE TIMES THE PRINCIPAL AMOUNT OF THE NEW BONDS (THE RESULT HEREINAFTER DEFINED AS THE "TAX BASE") AND (II) MULTIPLYING THE TAX RATE TIMES THE TAX BASE.
ONE HUNDRED FOURTH SUPPLEMENTAL INDENTURE
INDENTURE, dated as of the first day of October, 2003, made and entered into by and between FLORIDA POWER & LIGHT COMPANY, a corporation of the State of Florida, whose post office address is 700 Universe Boulevard, Juno Beach, Florida 33408 (hereinafter sometimes called FPL), and DEUTSCHE BANK TRUST COMPANY AMERICAS (formerly known as Bankers Trust Company), a corporation of the State of New York, whose post office address is 60 Wall Street, 27th Floor, New York, New York 10005 (hereinafter called the Trustee), as the one hundred fourth supplemental indenture (hereinafter called the One Hundred Fourth Supplemental Indenture) to the Mortgage and Deed of Trust, dated as of January 1, 1944 (hereinafter called the Mortgage), made and entered into by FPL, the Trustee and The Florida National Bank of Jacksonville, as Co-Trustee (now resigned), the Trustee now acting as the sole trustee under the Mortgage, which Mortgage was executed and delivered by FPL to secure the payment of bonds issued or to be issued under and in accordance with the provisions thereof, reference to which Mortgage is hereby made, this One Hundred Fourth Supplemental Indenture being supplemental thereto;
WHEREAS, by an instrument, dated as of April 15, 2002, filed with the Banking Department of the State of New York, Bankers Trust Company effected a corporate name change pursuant to which, effective such date, it is known as Deutsche Bank Trust Company Americas;
WHEREAS, Section 8 of the Mortgage provides that the form of each series of bonds (other than the first series) issued thereunder shall be established by Resolution of the Board of Directors of FPL and that the form of such series, as established by said Board of Directors, shall specify the descriptive title of the bonds and various other terms thereof, and may also contain such provisions not inconsistent with the provisions of the Mortgage as the Board of Directors may, in its discretion, cause to be inserted therein expressing or referring to the terms and conditions upon which such bonds are to be issued and/or secured under the Mortgage; and
WHEREAS, Section 120 of the Mortgage provides, among other things, that any power, privilege or right expressly or impliedly reserved to or in any way conferred upon FPL by any provision of the Mortgage, whether such power, privilege or right is in any way restricted or is unrestricted, may be in whole or in part waived or surrendered or subjected to any restriction if at the time unrestricted or to additional restriction if already restricted, and FPL may enter into any further covenants, limitations or restrictions for the benefit of any one or more series of bonds issued thereunder, or FPL may cure any ambiguity contained therein, or in any supplemental indenture, or may establish the terms and provisions of any series of bonds other than said first series, by an instrument in writing executed and acknowledged by FPL in such manner as would be necessary to entitle a conveyance of real estate to be recorded in all of the states in which any property at the time subject to the Lien of the Mortgage shall be situated; and
WHEREAS, FPL now desires to create the series of bonds described in Article I hereof and to add to its covenants and agreements contained in the Mortgage certain other covenants and agreements to be observed by it and to alter and amend in certain respects the covenants and provisions contained in the Mortgage; and
WHEREAS, the execution and delivery by FPL of this One Hundred Fourth Supplemental Indenture, and the terms of the bonds, hereinafter referred to in Article I, have been duly authorized by the Board of Directors of FPL by appropriate resolutions of said Board of Directors;
NOW, THEREFORE, THIS INDENTURE WITNESSETH: That FPL, in
consideration of the premises and of One Dollar to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and in further evidence of assurance of the estate, title and rights of the Trustee and in order further to secure the payment of both the principal of and interest and premium, if any, on the bonds from time to time issued under the Mortgage, according to their tenor and effect, and the performance of all the provisions of the Mortgage (including any instruments supplemental thereto and any modification made as in the Mortgage provided) and of said bonds, hereby grants, bargains, sells, releases, conveys, assigns, transfers, mortgages, pledges, sets over and confirms (subject, however, to Excepted Encumbrances as defined in Section 6 of the Mortgage) unto Deutsche Bank Trust Company Americas, as Trustee under the Mortgage, and to its successor or successors in said trust, and to said Trustee and its successors and assigns forever, all property, real, personal and mixed, acquired by FPL after the date of the execution and delivery of the Mortgage (except any herein or in the Mortgage, as heretofore supplemented, expressly excepted), now owned (except any properties heretofore released pursuant to any provisions of the Mortgage and in the process of being sold or disposed of by FPL) or, subject to the provisions of Section 87 of the Mortgage, hereafter acquired by FPL and wheresoever situated, including (without in anywise limiting or impairing by the enumeration of the same the scope and intent of the foregoing) all lands, power sites, flowage rights, water rights, water locations, water appropriations, ditches, flumes, reservoirs, reservoir sites, canals, raceways, dams, dam sites, aqueducts, and all rights or means for appropriating, conveying, storing and supplying water; all rights of way and roads; all plants for the generation of electricity by steam, water and/or other power; all power houses, gas plants, street lighting systems, standards and other equipment incidental thereto, telephone, radio and television systems, air-conditioning systems and equipment incidental thereto, water works, water systems, steam heat and hot water plants, substations, lines, service and supply systems, bridges, culverts, tracks, ice or refrigeration plants and equipment, offices, buildings and other structures and the equipment thereof; all machinery, engines, boilers, dynamos, electric, gas and other machines, regulators, meters, transformers, generators, motors, electrical, gas and mechanical appliances, conduits, cables, water, steam heat, gas or other pipes, gas mains and pipes, service pipes, fittings, valves and connections, pole and transmission lines, wires, cables, tools, implements, apparatus, furniture, chattels, and choses in action; all municipal and other franchises, consents or permits; all lines for the transmission and distribution of electric current, gas, steam heat or water for any purpose including towers, poles, wires, cables, pipes, conduits, ducts and all apparatus for use in connection therewith; all real estate, lands, easements, servitudes, licenses, permits, franchises, privileges, rights of way and other rights in or relating to real estate or the occupancy of the same and (except as herein or in the Mortgage, as heretofore supplemented, expressly excepted) all the right, title and interest of FPL in and to all other property of any kind or nature appertaining to and/or used and/or occupied and/or enjoyed in connection with any property hereinbefore or in the Mortgage, as heretofore supplemented, described.
TOGETHER WITH all and singular the tenements, hereditaments and appurtenances belonging or in anywise appertaining to the aforesaid property or any part thereof, with the reversion and reversions, remainder and remainders and (subject to the provisions of Section 57 of the Mortgage) the tolls, rents, revenues, issues, earnings, income, products and profits thereof, and all the estate, right, title and interest and claim whatsoever, at law as well as in equity, which FPL now has or may hereinafter acquire in and to the aforesaid property and franchises and every part and parcel thereof.
IT IS HEREBY AGREED by FPL that, subject to the provisions of Section 87 of the Mortgage, all the property, rights, and franchises acquired by FPL after the date hereof (except any herein or in the Mortgage, as heretofore supplemented, expressly excepted) shall be and are as fully granted and conveyed hereby and as fully embraced within the Lien of the Mortgage, as if such property, rights and franchises were now owned by FPL and were specifically described herein and conveyed hereby.
PROVIDED that the following are not and are not intended to be now or hereafter granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged, pledged, set over or confirmed hereunder and are hereby expressly excepted from the Lien and operation of this One Hundred Fourth Supplemental Indenture and from the Lien and operation of the Mortgage, as heretofore supplemented, viz: (1) cash, shares of stock, bonds, notes and other obligations and other securities not hereafter specifically pledged, paid, deposited, delivered or held under the Mortgage or covenanted so to be; (2) merchandise, equipment, materials or supplies held for the purpose of sale in the usual course of business and fuel (including Nuclear Fuel unless expressly subjected to the Lien and operation of the Mortgage by FPL in a future Supplemental Indenture), oil and similar materials and supplies consumable in the operation of any properties of FPL; rolling stock, buses, motor coaches, automobiles and other vehicles; (3) bills, notes and accounts receivable, and all contracts, leases and operating agreements not specifically pledged under the Mortgage or covenanted so to be; (4) the last day of the term of any lease or leasehold which may hereafter become subject to the Lien of the Mortgage; (5) electric energy, gas, ice, and other materials or products generated, manufactured, produced or purchased by FPL for sale, distribution or use in the ordinary course of its business; all timber, minerals, mineral rights and royalties; (6) FPL's franchise to be a corporation; and (7) the properties already sold or in the process of being sold by FPL and heretofore released from the Mortgage and Deed of Trust, dated as of January 1, 1926, from Florida Power & Light Company to Bankers Trust Company and The Florida National Bank of Jacksonville, trustees, and specifically described in three separate releases executed by Bankers Trust Company and The Florida National Bank of Jacksonville, dated July 28, 1943, October 6, 1943 and December 11, 1943, which releases have heretofore been delivered by the said trustees to FPL and recorded by FPL among the Public Records of all Counties in which such properties are located; provided, however, that the property and rights expressly excepted from the Lien and operation of the Mortgage in the above subdivisions (2) and (3) shall (to the extent permitted by law) cease to be so excepted in the event and as of the date that the Trustee or a receiver or trustee shall enter upon and take possession of the Mortgaged and Pledged Property in the manner provided in Article XIII of the Mortgage by reason of the occurrence of a Default as defined in Section 65 thereof.
TO HAVE AND TO HOLD all such properties, real, personal and mixed, granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged, pledged, set over or confirmed by FPL as aforesaid, or intended so to be, unto
Deutsche Bank Trust Company Americas, the Trustee, and its successors and assigns forever.
IN TRUST NEVERTHELESS, for the same purposes and upon the same terms, trusts and conditions and subject to and with the same provisos and covenants as are set forth in the Mortgage, as heretofore supplemented, this One Hundred Fourth Supplemental Indenture being supplemental thereto.
AND IT IS HEREBY COVENANTED by FPL that all terms, conditions, provisos, covenants and provisions contained in the Mortgage shall affect and apply to the property hereinbefore described and conveyed and to the estate, rights, obligations and duties of FPL and the Trustee and the beneficiaries of the trust with respect to said property, and to the Trustee and its successors as Trustee of said property in the same manner and with the same effect as if said property had been owned by FPL at the time of the execution of the Mortgage, and had been specifically and at length described in and conveyed to said Trustee, by the Mortgage as a part of the property therein stated to be conveyed.
FPL further covenants and agrees to and with the Trustee and its successors in said trust under the Mortgage, as follows:
ARTICLE I
ONE HUNDRED SECOND SERIES OF BONDS
Section 1. (I) There shall be a series of bonds designated "5.95% Series due October 1, 2033", herein sometimes referred to as the "One Hundred Second Series", each of which shall also bear the descriptive title First Mortgage Bond, and the form thereof, which shall be established by Resolution of the Board of Directors of FPL, shall contain suitable provisions with respect to the matters hereinafter in this Section specified. Bonds of the One Hundred Second Series shall mature on October 1, 2033 and shall be issued as fully registered bonds in denominations of One Thousand Dollars and, at the option of FPL, in any multiple or multiples of One Thousand Dollars (the exercise of such option to be evidenced by the execution and delivery thereof); they shall bear interest at the rate of 5.95% per annum, payable semi-annually on April 1 and October 1 of each year (each an "Interest Payment Date") commencing on April 1, 2004; the principal of and interest on each said bond to be payable at the office or agency of FPL in the Borough of Manhattan, The City of New York, in such coin or currency of the United States of America as at the time of payment is legal tender for public and private debts. Bonds of the One Hundred Second Series shall be dated as in Section 10 of the Mortgage provided. The record date for payments of interest on any Interest Payment Date shall be the close of business on (1) the business day immediately preceding such Interest Payment Date so long as the bonds of the One Hundred Second Series are in book-entry only form, registered in the name of The Depository Trust Company or any other successor depositary or a nominee thereof or (2) the 15th calendar day immediately preceding each Interest Payment Date if the bonds of the One Hundred Second Series are not in book-entry only form, registered in the name of The Depository Trust Company or any other successor depositary or a nominee thereof. Interest on the bonds of the One Hundred Second Series will accrue from and including October 15, 2003 to but excluding the first Interest Payment Date and, thereafter, from and including the last Interest Payment Date to which interest has been paid or duly provided for (and if no interest has been paid on the
bonds of the One Hundred Second Series, from October 15, 2003) to, but excluding, the next succeeding Interest Payment Date. No interest will accrue on a bond of the One Hundred Second Series for the day on which such bond matures. The amount of interest payable for any period will be computed on the basis of a 360-day year consisting of twelve 30-day months. The amount of interest payable for any period shorter than a full semi-annual period for which interest is computed will be computed on the basis of the number of days in the period using 30-day calendar months.
(II) Bonds of the One Hundred Second Series shall be redeemable either at the option of FPL or pursuant to the requirements of the Mortgage (including, among other requirements, the application of cash delivered to or deposited with the Trustee pursuant to the provisions of Section 64 of the Mortgage or with proceeds of Released Property) in whole at any time, or in part from time to time, prior to maturity, upon notice, as provided in Section 52 of the Mortgage, mailed at least thirty (30) days prior to the date fixed for redemption (the "Redemption Date"), at a price (the "Redemption Price") equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the Redemption Date plus a premium, if any (the "Make-Whole Premium"). In no event will the Redemption Price be less than 100% of the principal amount of the bonds of the One Hundred Second Series being redeemed plus accrued and unpaid interest to the Redemption Date.
The amount of the Make-Whole Premium with respect to any bond of the One Hundred Second Series (or portion thereof) to be redeemed will be equal to the excess, if any, of:
(1) the sum of the present values, calculated as of the Redemption Date, of:
a. each interest payment that, but for such redemption, would have been payable on the bond of the One Hundred Second Series (or portion thereof) being redeemed on each Interest Payment Date occurring after the Redemption Date (excluding any accrued interest for the period prior to the Redemption Date); and
b. the principal amount that, but for such redemption, would have been payable at the final maturity of the bond of the One Hundred Second Series (or portion thereof) being redeemed; over
(2) the principal amount of the bond of the One Hundred Second Series (or portion thereof) being redeemed.
The present values of interest and principal payments referred to in clause (1) above will be determined in accordance with generally accepted principles of financial analysis. Such present values will be calculated by discounting the amount of each payment of interest or principal from the date that each such payment would have been payable, but for the redemption, to the Redemption Date at a discount rate equal to the Treasury Yield (as defined below) plus 15 basis points.
The Make-Whole Premium will be calculated by an independent investment banking institution of national standing appointed by FPL; provided that if FPL fails to make such appointment at least 30 days prior to the Redemption Date, or if the institution so appointed is unwilling or unable to make such calculation,
such calculation will be made by Barclays Capital Inc. or Lehman Brothers Inc. or, if such firms are unwilling or unable to make such calculation, by an independent investment banking institution of national standing appointed by the Trustee at the expense of FPL (in any such case, an "Independent Investment Banker").
For purposes of determining the Make-Whole Premium, "Treasury Yield" means a rate of interest per annum equal to the weekly average yield to maturity of United States Treasury Notes that have a constant maturity that corresponds to the remaining term to maturity of the bonds of the One Hundred Second Series to be redeemed, calculated to the nearest 1/12th of a year (the "Remaining Term"). The Treasury Yield will be determined as of the third business day immediately preceding the applicable Redemption Date.
The weekly average yields of United States Treasury Notes will be determined by reference to the most recent statistical release published by the Federal Reserve Bank of New York and designated "H.15(519) Selected Interest Rates" or any successor release (the "H.15 Statistical Release"). If the H.15 Statistical Release sets forth a weekly average yield for the United States Treasury Notes having a constant maturity that is the same as the Remaining Term, then the Treasury Yield will be equal to such weekly average yield. In all other cases, the Treasury Yield will be calculated by interpolation, on a straight-line basis, between the weekly average yields on the United States Treasury Notes that have a constant maturity closest to and greater than the Remaining Term and the United States Treasury Notes that have a constant maturity closest to and less than the Remaining Term (in each case as set forth in the H.15 Statistical Release). Any weekly average yields so calculated by interpolation will be rounded to the nearest 1/100th of 1%, with any figure of 1/200th of 1% or above being rounded upward. If weekly average yields for United States Treasury Notes are not available in the H.15 Statistical Release or otherwise, then the Treasury Yield will be calculated by interpolation of comparable rates selected by the Independent Investment Banker.
(III) At the option of the registered owner, any bonds of the One Hundred Second Series, upon surrender thereof for exchange at the office or agency of FPL in the Borough of Manhattan, The City of New York, together with a written instrument of transfer wherever required by FPL, duly executed by the registered owner or by his duly authorized attorney, shall (subject to the provisions of Section 12 of the Mortgage) be exchangeable for a like aggregate principal amount of bonds of the same series of other authorized denominations.
Bonds of the One Hundred Second Series shall be transferable (subject to the provisions of Section 12 of the Mortgage) at the office or agency of FPL in the Borough of Manhattan, The City of New York.
Upon any exchange or transfer of bonds of the One Hundred Second Series, FPL may make a charge therefor sufficient to reimburse it for any tax or taxes or other governmental charge, as provided in Section 12 of the Mortgage, but FPL hereby waives any right to make a charge in addition thereto for any exchange or transfer of bonds of the One Hundred Second Series.
ARTICLE II
DIVIDEND COVENANT
Section 2. Section 3 of the Third Supplemental Indenture, as heretofore amended, is hereby further amended by inserting the words "or One Hundred Second Series" immediately before the words "remain Outstanding".
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3. Subject to the amendments provided for in this One Hundred Fourth Supplemental Indenture, the terms defined in the Mortgage, as heretofore supplemented, shall, for all purposes of this One Hundred Fourth Supplemental Indenture, have the meanings specified in the Mortgage, as heretofore supplemented.
Section 4. The holders of bonds of the One Hundred Second Series consent that FPL may, but shall not be obligated to, fix a record date for the purpose of determining the holders of bonds of the One Hundred Second Series entitled to consent to any amendment, supplement or waiver. If a record date is fixed, those persons who were holders at such record date (or their duly designated proxies), and only those persons, shall be entitled to consent to such amendment, supplement or waiver or to revoke any consent previously given, whether or not such persons continue to be holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date.
Section 5. The Trustee hereby accepts the trust herein declared, provided, created or supplemented and agrees to perform the same upon the terms and conditions herein and in the Mortgage, as heretofore supplemented, set forth and upon the following terms and conditions:
The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this One Hundred Fourth Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made by FPL solely. In general, each and every term and condition contained in Article XVII of the Mortgage, as heretofore amended, shall apply to and form part of this One Hundred Fourth Supplemental Indenture with the same force and effect as if the same were herein set forth in full with such omissions, variations and insertions, if any, as may be appropriate to make the same conform to the provisions of this One Hundred Fourth Supplemental Indenture.
Section 6. Whenever in this One Hundred Fourth Supplemental Indenture either of the parties hereto is named or referred to, this shall, subject to the provisions of Articles XVI and XVII of the Mortgage, as heretofore amended, be deemed to include the successors and assigns of such party, and all the covenants and agreements in this One Hundred Fourth Supplemental Indenture contained by or on behalf of FPL, or by or on behalf of the Trustee, or either of them, shall, subject as aforesaid, bind and inure to the respective benefits of the respective successors and assigns of such parties, whether so expressed or not.
Section 7. Nothing in this One Hundred Fourth Supplemental Indenture, expressed or implied, is intended, or shall be construed, to confer upon, or to give to, any person, firm or corporation, other than the parties hereto and the holders of the bonds and coupons Outstanding under the Mortgage, any right,
remedy or claim under or by reason of this One Hundred Fourth Supplemental Indenture or any covenant, condition, stipulation, promise or agreement hereof, and all the covenants, conditions, stipulations, promises and agreements in this One Hundred Fourth Supplemental Indenture contained by or on behalf of FPL shall be for the sole and exclusive benefit of the parties hereto, and of the holders of the bonds and coupons Outstanding under the Mortgage.
Section 8. The Mortgage, as heretofore supplemented and amended and as supplemented hereby, is intended by the parties hereto, as to properties now or hereafter encumbered thereby and located within the State of Georgia, to operate and is to be construed as granting a lien only on such properties and not as a deed passing title thereto.
Section 9. This One Hundred Fourth Supplemental Indenture shall be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.
IN WITNESS WHEREOF, FPL has caused its corporate name to be hereunto affixed, and this instrument to be signed and sealed by its President or one of its Vice Presidents, and its corporate seal to be attested by its Secretary or one of its Assistant Secretaries for and in its behalf, and DEUTSCHE BANK TRUST COMPANY AMERICAS has caused its corporate name to be hereunto affixed, and this instrument to be signed and sealed by one of its Vice Presidents or Assistant Vice Presidents, and its corporate seal to be attested by one of its Assistant Vice Presidents, one of its Assistant Secretaries or one of its Associates, all as of the day and year first above written.
FLORIDA POWER & LIGHT COMPANY
By: /s/ K. Michael Davis
---------------------------------------
K. Michael Davis
Vice President, Accounting,
Controller and Chief Accounting Officer
9250 West Flagler Street
Miami, FL 33102
Attest:
/s/ Paul I. Cutler
--------------------------------------
Paul I. Cutler
Treasurer and Assistant Secretary
700 Universe Boulevard
Juno Beach, FL 33408
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Executed, sealed and delivered by
FLORIDA POWER & LIGHT COMPANY
in the presence of:
/s/ Harold J. McCarthy
--------------------------------------
/s/ Lisa M. Schanen
--------------------------------------
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DEUTSCHE BANK TRUST COMPANY AMERICAS
As Trustee
By: /s/ Wanda Camacho
---------------------------------------
Wanda Camacho
Vice President
60 Wall Street, 27th Floor
New York, NY 10005
Attest:
/s/ Irina Golovashchuk
--------------------------------------
Irina Golovashchuk
Associate
60 Wall Street, 27th Floor
New York, NY 10005
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Executed, sealed and delivered by
DEUTSCHE BANK TRUST COMPANY AMERICAS
in the presence of:
/s/ Jennifer Davis
--------------------------------------
/s/ Maria Tokarz
--------------------------------------
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STATE OF FLORIDA )
)
COUNTY OF PALM BEACH ) SS.:
On the 10th day of October, in the year 2003, before me personally came K. Michael Davis, to me known, who, being by me duly sworn, did depose and say that he resides at 1101 N.W. 115th Ave., Plantation, FL 33323; that he is the Vice President, Accounting, Controller and Chief Accounting Officer of FLORIDA POWER & LIGHT COMPANY, one of the corporations described in and which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation, and that he signed his name thereto by like order.
I HEREBY CERTIFY, that on this 10th day of October, 2003, before me personally appeared K. Michael Davis and Paul I. Cutler, respectively, the Vice President, Accounting, Controller and Chief Accounting Officer and the Treasurer and Assistant Secretary of FLORIDA POWER & LIGHT COMPANY, a corporation under the laws of the State of Florida, to me known to be the persons described in and who executed the foregoing instrument and severally acknowledged the execution thereof to be their free act and deed as such officers, for the uses and purposes therein mentioned; and that they affixed thereto the official seal of said corporation, and that said instrument is the act and deed of said corporation.
K. Michael Davis and Paul I. Cutler produced Florida Driver's License No. D120-513-46-467-0 and Florida Driver's License No. C346-689-59-470 as identification, respectively.
WITNESS my signature and official seal at Juno Beach, in the County of Palm Beach, and State of Florida, the day and year last aforesaid.
/s/ Lisa Breeze-Fox
LISA BREEZE-FOX
Notary Public, State of Florida
Commission # DD0118785
Expires 5/19/2006
Bonded through
Florida Notary Assn., Inc.
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STATE OF NEW YORK )
)
COUNTY OF NEW YORK ) SS:
On the 9th day of October, in the year 2003, before me personally came Wanda Camacho, to me known, who, being by me duly sworn, did depose and say that she resides at 86 Sheldon Avenue, Tarrytown, NY 10591; that she is a Vice President of DEUTSCHE BANK TRUST COMPANY AMERICAS, one of the corporations described in and which executed the above instrument; that she knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation, and that she signed her name thereto by like order.
I HEREBY CERTIFY, that on this 9th day of October, 2003, before me personally appeared Wanda Camacho and Irina Golovashchuk, respectively, a Vice President and an Associate of DEUTSCHE BANK TRUST COMPANY AMERICAS, a corporation under the laws of the state of New York, to me known to be the persons described in and who executed the foregoing instrument and severally acknowledged the execution thereof to be their free act and deed as such officers, for the uses and purposes therein mentioned; and that they affixed thereto the official seal of said corporation, and that said instrument is the act and deed of said corporation.
Wanda Camacho and Irina Golovashchuk produced New York Driver's License No. 645 045 185 and New Jersey Driver's License No. G6294 36600 54724 as identification, respectively
WITNESS my signature and official seal at New York, in the County of New York, and State of New York, the day and year last aforesaid.
/s/ Annie Jaghatspanyan
---------------------------------
Annie Jaghatspanyan
Notary Public, State of New York
No. 01JA6062022
Qualified in New York County
Commission Expires July 30, 2005
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EXHIBIT 5(a).2.
STEEL Steel Hector & Davis LLP HECTOR 200 South Biscayne Boulevard & DAVIS Miami, Florida 33131-2398 305.577.7000 305.577.7001 Fax www.steelhector.com
October 15, 2003
Florida Power & Light Company
700 Universe Boulevard
Juno Beach, Florida 33408
Ladies and Gentlemen:
As counsel for Florida Power & Light Company, a Florida corporation (the "Company"), we have participated in the preparation of or reviewed (1) Registration Statement No. 333-102172, as amended, which became effective on March 28, 2003, which registration statement was filed by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"); (2) the prospectus dated March 28, 2003 forming a part of the Registration Statement, as supplemented by a prospectus supplement dated October 9, 2003 relating to $300,000,000 principal amount of First Mortgage Bonds, 5.95% Series due October 1, 2033 (the "Bonds"), issued under the Mortgage and Deed of Trust dated as of January 1, 1944, as the same is supplemented by one hundred and four indentures supplemental thereto, the latest of which is dated as of October 1, 2003 (such Mortgage as so supplemented being hereinafter called the "Mortgage") from the Company to Deutsche Bank Trust Company Americas, as Trustee ("Mortgage Trustee"), both such prospectus and prospectus supplement filed pursuant to Rule 424(b) under the Securities Act; (3) the Mortgage; (4) the corporate proceedings of the Company with respect to the Registration Statement and with respect to the authorization, issuance and sale of the Bonds; and (5) such other corporate records, certificates and other documents (including a receipt executed on behalf of the Company acknowledging receipt of the purchase price for the Bonds) and such questions of law as we have considered necessary or appropriate for the purposes of this opinion.
Based on the foregoing, we are of the opinion that the Bonds are legally issued, valid, and binding obligations of the Company, except as limited or affected by bankruptcy, insolvency, reorganization, receivership, moratorium or other laws affecting mortgagees' and other creditors' rights and remedies generally and general principles of equity.
In rendering the foregoing opinion, we have assumed that the certificates representing the Bonds conform to specimens examined by us and that the Bonds have been duly authenticated by the Mortgage Trustee under the Mortgage, and that the signatures on all documents examined by us are genuine, assumptions which we have not independently verified.
We hereby consent to the filing of this opinion as an exhibit to Post-Effective Amendment No. 2 to Registration Statement No. 333-102172.
Florida Power & Light Company
October 15, 2003
We are members of the Florida Bar and this opinion is limited to the laws of the State of Florida and the federal laws of the United States insofar as they bear on matters covered hereby. As to all matters of New York law, we have relied, with your consent, upon the opinion of even date herewith rendered to you by Thelen Reid & Priest LLP, New York, New York. As to all matters of Florida law, Thelen Reid & Priest LLP is authorized to rely upon this opinion as if it were addressed to it.
Very truly yours,
/s/ Steel Hector & Davis LLP STEEL HECTOR & DAVIS LLP |
EXHIBIT 5(b).2
875 Third Avenue New York, NY 10022-6225
Tel. 212.603.2000 Fax 212.603.2001
www.thelenreid.com
October 15, 2003
Florida Power & Light Company
700 Universe Boulevard
Juno Beach, Florida 33408
Ladies and Gentlemen:
As counsel for Florida Power & Light Company, a Florida corporation (the "Company"), we have participated in the preparation of or reviewed (1) Registration Statement No. 333-102172, as amended, which became effective on March 28, 2003, which registration statement was filed by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Securities Act"); (2) the prospectus dated March 28, 2003 forming a part of the Registration Statement, as supplemented by a prospectus supplement dated October 9, 2003 relating to $300,000,000 principal amount of First Mortgage Bonds, 5.95% Series due October 1, 2033 (the "Bonds"), issued under the Mortgage and Deed of Trust dated as of January 1, 1944, as the same is supplemented by one hundred and four indentures supplemental thereto, the latest of which is dated as of October 1, 2003 (such Mortgage as so supplemented being hereinafter called the "Mortgage") from the Company to Deutsche Bank Trust Company Americas, as Trustee ("Mortgage Trustee"), both such prospectus and prospectus supplement filed pursuant to Rule 424(b) under the Securities Act; (3) the Mortgage; (4) the corporate proceedings of the Company with respect to the Registration Statement and with respect to the authorization, issuance and sale of the Bonds; and (5) such other corporate records, certificates and other documents (including a receipt executed on behalf of the Company acknowledging receipt of the purchase price for the Bonds) and such questions of law as we have considered necessary or appropriate for the purposes of this opinion.
Based on the foregoing, we are of the opinion that the Bonds are legally issued, valid, and binding obligations of the Company, except as limited or affected by bankruptcy, insolvency, reorganization, receivership, moratorium or other laws affecting mortgagees' and other creditors' rights and remedies generally and general principles of equity.
In rendering the foregoing opinion, we have assumed that the certificates representing the Bonds conform to specimens examined by us and that the Bonds have been duly authenticated by the Mortgage Trustee under the Mortgage, and that the signatures on all documents examined by us are genuine, assumptions which we have not independently verified.
We hereby consent to the filing of this opinion as an exhibit to Post-Effective Amendment No. 2 to Registration Statement No. 333-102172.
Florida Power & Light Company
October 15, 2003
We are members of the New York Bar and this opinion is limited to the laws of the State of New York and the federal laws of the United States insofar as they bear on matters covered hereby. As to all matters of Florida law, we have relied, with your consent, upon the opinion of even date herewith rendered to you by Steel Hector & Davis LLP, Miami, Florida. As to all matters of New York law, Steel Hector & Davis LLP is authorized to rely upon this opinion as if it were addressed to it.
Very truly yours,
/s/ Thelen Reid & Priest LLP THELEN REID & PRIEST LLP |