Exhibit 4(a)
This instrument was prepared
by:
Paul I. Cutler
Florida Power & Light Company
700 Universe Boulevard
Juno Beach, Florida 33408
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 Sixth Supplemental Indenture and
Mortgage
Relating to the
Purchase of Interest in Property in New Hampshire
Dated as of
September 1, 2004
This Supplemental Indenture
and Mortgage has been executed in several counterparts, all of
which constitute but one and the same
instrument.
ONE HUNDRED SIXTH
SUPPLEMENTAL INDENTURE AND MORTGAGE
INDENTURE AND MORTGAGE, dated as of the 1 st
day of September, 2004, 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 sixth
supplemental indenture and mortgage (hereinafter called the One
Hundred Sixth Supplemental Indenture and Mortgage) 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 Sixth
Supplemental Indenture and Mortgage 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 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 has acquired certain interests in real property,
fixtures and personal property within, associated with or otherwise
related to the Seabrook 345 kv Substation located at Seabrook, New
Hampshire as hereinafter more particularly described (the "Seabrook
Substation Property"); and
Whereas, the execution and delivery by FPL of this One Hundred
Sixth Supplemental Indenture and Mortgage has been duly authorized
by the Board of Directors of FPL by appropriate resolutions of said
Board of Directors;
Now, Therefore, This Indenture and Mortgage 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 of the properties described in Schedule "NH1" attached hereto
and hereby made a part hereof; 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 Sixth Supplemental Indenture and
Mortgage 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 Sixth Supplemental
Indenture and Mortgage 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
Mortgage
Conditions
Section 1. The mortgage granted herein in the Seabrook
Substation Property is upon the statutory conditions as defined in
New Hampshire RSA Sec.477:29, and upon the further condition that
all covenants and agreements of FPL contained herein and in the
Mortgage (as hereinbefore defined) shall be kept and fully
performed, for any breach of which the Trustee shall have the
statutory power of sale as defined in New Hampshire RSA
Sec.477:29.
ARTICLE II
Maximum
Indebtedness
Section 2. The aggregate principal amount of bonds which may be
secured by the lien of the Mortgage upon the Seabrook Substation
Property located in New Hampshire shall be unlimited.
ARTICLE III
Miscellaneous
Provisions
Section 3. Subject to the amendments provided for in this One
Hundred Sixth Supplemental Indenture, the terms defined in the
Mortgage, as heretofore supplemented, shall, for all purposes of
this One Hundred Sixth Supplemental Indenture, have the meanings
specified in the Mortgage, as heretofore supplemented.
Section 4. 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 Sixth Supplemental Indenture and Mortgage or for or in
respect of the re
