EXHIBIT 4(o)
This instrument was prepared by:
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Florida Power & Light Company EXECUTED IN 60 COUNTERPARTS OF
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ WHICH THIS IS COUNTERPART ▇▇. ▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ --------------------------------
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FLORIDA POWER & LIGHT COMPANY
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 SECOND SUPPLEMENTAL INDENTURE
RELATING TO $400,000,000 PRINCIPAL AMOUNT
OF FIRST MORTGAGE BONDS, 4.85% SERIES
DUE FEBRUARY 1, 2013
AND
RELATING TO $200,000,000 PRINCIPAL AMOUNT
OF FIRST MORTGAGE BONDS, 5.85% SERIES
DUE FEBRUARY 1, 2033
DATED AS OF DECEMBER 1, 2002
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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 $2,100,000, AND NON-RECURRING INTANGIBLE TAXES AS REQUIRED
BY LAW IN THE AMOUNT OF $164,797 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 SECOND SUPPLEMENTAL INDENTURE
INDENTURE, dated as of the first day of December, 2002, made and
entered into by and between FLORIDA POWER & LIGHT COMPANY, a corporation of the
State of Florida, whose post office address is ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (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 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇ (hereinafter called the Trustee), as the one
hundred second supplemental indenture (hereinafter called the One Hundred Second
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 Second Supplemental Indenture
being supplemental thereto;
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 two series of bonds described in
Articles I and II 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 Second
Supplemental Indenture, and the terms of the bonds, hereinafter referred to in
Articles I and II, 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
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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 Second 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
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are set forth in the Mortgage, as heretofore supplemented, this One Hundred
Second 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
NINETY-NINTH SERIES OF BONDS
Section 1. (I) There shall be a series of bonds designated "4.85%
Series due February 1, 2013", herein sometimes referred to as the "Ninety-ninth
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 Ninety-ninth Series
shall mature on February 1, 2013 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 4.85% per annum, payable semi-annually on February 1 and August 1 of
each year (each an "Interest Payment Date for the Ninety-ninth Series")
commencing on February 1, 2003; 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
Ninety-ninth Series shall be dated as in Section 10 of the Mortgage provided.
The record date for payments of interest on any Interest Payment Date for the
Ninety-ninth Series shall be the close of business on (1) the business day
immediately preceding such Interest Payment Date for the Ninety-ninth Series so
long as the bonds of the Ninety-ninth Series are registered in the name of The
Depository Trust Company or its nominee or (2) the 15th calendar day immediately
preceding each Interest Payment Date for the Ninety-ninth Series if the bonds of
the Ninety-ninth Series are not registered in the name of The Depository Trust
Company or its nominee. Interest on the bonds of the Ninety-ninth Series will
accrue from and including December 13, 2002 to and excluding the first Interest
Payment Date for the Ninety-ninth Series and, thereafter, interest on each bond
of the Ninety-ninth Series will accrue from and including the last Interest
Payment Date for the Ninety-ninth Series to which interest has paid or duly
provided for. No interest will accrue on a bond of the Ninety-ninth 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
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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 Ninety-ninth 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 Ninety-ninth 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
Ninety-ninth 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 Ninety-ninth Series (or
portion thereof) being redeemed on each Interest Payment
Date for the Ninety-ninth Series 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
Ninety-ninth Series (or portion thereof) being redeemed;
over
(2) the principal amount of the bond of the Ninety-ninth 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 for the
Ninety-ninth Series (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 ▇.▇. ▇▇▇▇▇▇ Securities Inc. or ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Inc. or, if both 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").
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For purposes of determining the Make-Whole Premium, "Treasury Yield for
the Ninety-ninth Series" 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
Ninety-ninth Series to be redeemed, calculated to the nearest 1/12th of a year
(the "Remaining Term for the Ninety-ninth Series"). The Treasury Yield for the
Ninety-ninth Series 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
for the Ninety-ninth Series, then the Treasury Yield for the Ninety-ninth Series
will be equal to such weekly average yield. In all other cases, the Treasury
Yield for the Ninety-ninth Series 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 for the Ninety-ninth Series and the United States Treasury Notes
that have a constant maturity closest to and less than the Remaining Term for
the Ninety-ninth Series (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 for the Ninety-ninth Series 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
Ninety-ninth 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 Ninety-ninth 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 Ninety-ninth 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 Ninety-ninth Series.
ARTICLE II
ONE HUNDREDTH SERIES OF BONDS
Section 2. (I) There shall be a series of bonds designated "5.85%
Series due February 1, 2033", herein sometimes referred to as the "One Hundredth
Series", each of which shall also bear the descriptive title First Mortgage
6
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 Hundredth Series
shall mature on February 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 5.85% per annum, payable semi-annually on February 1 and August 1 of
each year (each an "Interest Payment Date for the One Hundredth Series")
commencing on February 1, 2003; 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 Hundredth Series shall be dated as in Section 10 of the Mortgage provided.
The record date for payments of interest on any Interest Payment Date for the
One Hundredth Series shall be the close of business on (1) the business day
immediately preceding such Interest Payment Date for the One Hundredth Series so
long as the bonds of the One Hundredth Series are registered in the name of The
Depository Trust Company or its nominee or (2) the 15th calendar day immediately
preceding each Interest Payment Date for the One Hundredth Series if the bonds
of the One Hundredth Series are not registered in the name of The Depository
Trust Company or its nominee. Interest on the bonds of the One Hundredth Series
will accrue from and including December 13, 2002 to and excluding the first
Interest Payment Date for the One Hundredth Series and, thereafter, interest on
each bond of the One Hundredth Series will accrue from and including the last
Interest Payment Date for the One Hundredth Series to which interest has paid or
duly provided for. No interest will accrue on a bond of the One Hundredth 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 Hundredth 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 Redemption Date, at the Redemption
Price equal to 100% of the principal amount thereof plus accrued and unpaid
interest, if any, to the Redemption Date plus the Make-Whole Premium, if any. In
no event will the Redemption Price be less than 100% of the principal amount of
the bonds of the One Hundredth 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 Hundredth 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 Hundredth Series
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(or portion thereof) being redeemed on each Interest Payment
Date for the One Hundredth Series 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 Hundredth Series (or portion thereof) being redeemed;
over
(2) the principal amount of the bond of the One Hundredth 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 for the One
Hundredth Series (as defined below) plus 20 basis points.
The Make-Whole Premium will be calculated by an Independent Investment
Banker 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 ▇.▇. ▇▇▇▇▇▇ Securities Inc. or ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. or, if both such
firms are unwilling or unable to make such calculation, by an Independent
Investment Banker appointed by the Trustee at the expense of FPL.
For purposes of determining the Make-Whole Premium, "Treasury Yield for
the One Hundredth Series" 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 Hundredth Series to be redeemed, calculated to the nearest 1/12th of a year
(the "Remaining Term for the One Hundredth Series"). The Treasury Yield for the
One Hundredth Series 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. 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 for the One Hundredth Series,
then the Treasury Yield for the One Hundredth Series will be equal to such
weekly average yield. In all other cases, the Treasury Yield for the One
Hundredth Series 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 for the One
Hundredth Series and the United States Treasury Notes that have a constant
maturity closest to and less than the Remaining Term for the One Hundredth
Series (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
8
the H.15 Statistical Release or otherwise, then the Treasury Yield for the One
Hundredth Series 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
Hundredth 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 Hundredth 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 Hundredth 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 Hundredth Series.
ARTICLE III
DIVIDEND COVENANT
Section 3. Section 3 of the Third Supplemental Indenture, as heretofore
amended, is hereby further amended by inserting the words "or Ninety-ninth
Series or One Hundredth Series" immediately before the words "remain
Outstanding".
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4. Subject to the amendments provided for in this One Hundred
Second Supplemental Indenture, the terms defined in the Mortgage, as heretofore
supplemented, shall, for all purposes of this One Hundred Second Supplemental
Indenture, have the meanings specified in the Mortgage, as heretofore
supplemented.
Section 5. The holders of bonds of the Ninety-ninth Series and One
Hundredth 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
Ninety-ninth Series and One Hundredth 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 6. 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:
9
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this One Hundred Second 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 Second 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 Second Supplemental
Indenture.
Section 7. Whenever in this One Hundred Second 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 Second 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 8. Nothing in this One Hundred Second 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 Second Supplemental
Indenture or any covenant, condition, stipulation, promise or agreement hereof,
and all the covenants, conditions, stipulations, promises and agreements in this
One Hundred Second 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 9. 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 10. This One Hundred Second 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.
10
FLORIDA POWER & LIGHT COMPANY
By: /s/ ▇. ▇. ▇▇▇▇▇
-------------------------
▇. ▇. ▇▇▇▇▇
Vice President, Accounting, Controller
and Chief Accounting Officer
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attest:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Treasurer and Assistant Secretary
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Executed, sealed and delivered by
FLORIDA POWER & LIGHT COMPANY
in the presence of:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
s/ ▇▇▇ ▇. Black
---------------------------------------
11
DEUTSCHE BANK TRUST COMPANY AMERICAS
As Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Vice President
100 Plaza One, MS JCY03-0603
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attest: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Associate
▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Executed, sealed and delivered
by DEUTSCHE BANK TRUST COMPANY AMERICAS
in the presence of:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------------------
12
STATE OF FLORIDA )
)
COUNTY OF PALM BEACH ) SS.:
On the 10th day of December, in the year 2002, before me personally
came ▇. ▇. ▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say
that he resides at ▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; 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 December, 2002, before me
personally appeared ▇. ▇. ▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇, respectively, the Vice
President, Accounting, Controller and Chief Accounting Officer and the Assistant
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.
▇. ▇. ▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇ produced Florida Driver's License No.
▇▇▇▇-▇▇▇-▇▇-▇▇▇-▇ 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/ ▇▇▇▇ ▇▇▇▇▇▇-▇▇▇
▇▇▇▇ ▇▇▇▇▇▇-▇▇▇
Notary Public, State of Florida
Commission # DD0118785
Expires 5/19/2006
Bonded through
Florida Notary Assn., Inc.
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ )
)
COUNTY OF ▇▇▇▇▇▇ ) SS:
On the 6th day of December, in the year 2002, before me personally came
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and
say that he resides at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; that he is a Vice
President of DEUTSCHE BANK TRUST COMPANY AMERICAS, 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 her name thereto by like order.
I HEREBY CERTIFY, that on this 6th day of December, 2002, before me
personally appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇, 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.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ produced New York Driver's
License No. ▇▇▇ ▇▇▇ ▇▇▇ and New York Driver's License No. ▇▇▇ ▇▇▇ ▇▇▇ as
identification, respectively
WITNESS my signature and official seal at Jersey City, in the County of
▇▇▇▇▇▇, and State of New Jersey, the day and year last aforesaid.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Notary Public of New Jersey
My Commission Expires 2007
14
