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This instrument
was prepared by:
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EXECUTED IN 60 COUNTERPARTS
OF
WHICH THIS IS COUNTERPART NO.
4
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Florida Power
& Light Company
Juno Beach,
Florida 33408
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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 Fourteenth
Supplemental Indenture
Relating to $500,000,000
Principal Amount
of First Mortgage Bonds, 5.96%
Series
due April 1,
2039
Dated as of March 1,
2009
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 $1,750,000 and non-recurring
intangible taxes as required by law in the amount of $120,359.37
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 FOURTEENTH SUPPLEMENTAL INDENTURE
INDENTURE,
dated as of the 1st day of March, 2009, 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 fourteenth supplemental indenture (hereinafter
called the One Hundred Fourteenth 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, and which Mortgage was incorporated by
reference in the One Hundredth Sixth Supplemental Indenture and
Mortgage, dated as of September 1, 2004, and recorded in the
Rockingham County, New Hampshire Registry of Deeds at Book 4362,
Page 1879, reference to which Mortgage and to which One Hundredth
Sixth Supplemental Indenture and Mortgage is hereby made, this One
Hundred Fourteenth 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; and
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 Fourteenth
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 and the lien and operation of the One Hundred
Sixth Supplemental Indenture and 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 Fourteenth 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, barg
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