This instrument was prepared by:
Xxxx X. Xxxxxx -------------------------------
Florida Power & Light Company EXECUTED IN 60 COUNTERPARTS OF
000 Xxxxxxxx Xxxxxxxxx WHICH THIS IS COUNTERPART XX. 0
Xxxx Xxxxx, Xxxxxxx 00000 -------------------------------
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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 NINTH SUPPLEMENTAL INDENTURE
RELATING TO $400,000,000 PRINCIPAL AMOUNT
OF FIRST MORTGAGE BONDS, 5.65% SERIES
DUE FEBRUARY 1, 2037
DATED AS OF JANUARY 1, 2006
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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 $1,400,000 AND NON-RECURRING INTANGIBLE TAXES AS REQUIRED
BY LAW IN THE AMOUNT OF $106,636 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 NINTH SUPPLEMENTAL INDENTURE
INDENTURE, dated as of the 1st day of January, 2006, made and entered into
by and between FLORIDA POWER & LIGHT COMPANY, a corporation of the State of
Florida, whose post office address is 000 Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxx,
Xxxxxxx 00000 (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 00 Xxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 10005 (hereinafter called the Trustee), as the one hundred ninth
supplemental indenture (hereinafter called the One Hundred Ninth 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 Ninth 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 Ninth
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
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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 Ninth 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
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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
Ninth 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 SIXTH SERIES OF BONDS
Section 1. (I) There shall be a series of bonds designated "5.65% Series
due February 1, 2037", herein sometimes referred to as the "One Hundred Sixth
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 Sixth
Series shall mature on February 1, 2037 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 5.65% per annum, payable semi-annually on February 1 and August 1 of
each year (each an "Interest Payment Date") commencing on August 1, 2006; 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 Sixth 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 Sixth 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 Sixth Series are not in book-entry
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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 Sixth Series will accrue from and including January 18, 2006 to but
excluding August 1, 2006 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 Sixth Series, from
January 18, 2006) to, but excluding, the next succeeding Interest Payment Date.
No interest will accrue on a bond of the One Hundred Sixth 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 Sixth 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 Sixth 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 Sixth 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 Sixth 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
Sixth Series (or portion thereof) being redeemed; over
(2) the principal amount of the bond of the One Hundred Sixth 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
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at a discount rate equal to the Treasury Yield (as defined below) plus 20 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 Banc of America Securities LLC or Xxxxxx
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 Sixth 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
Sixth 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 Sixth 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 Sixth 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
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hereby waives any right to make a charge in addition thereto for any exchange or
transfer of bonds of the One Hundred Sixth 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 Sixth
Series" immediately before the words "remain Outstanding".
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3. Subject to the amendments provided for in this One Hundred Ninth
Supplemental Indenture, the terms defined in the Mortgage, as heretofore
supplemented, shall, for all purposes of this One Hundred Ninth Supplemental
Indenture, have the meanings specified in the Mortgage, as heretofore
supplemented.
Section 4. The holders of bonds of the One Hundred Sixth 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 Sixth 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 Ninth 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 Ninth 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 Ninth Supplemental Indenture.
Section 6. Whenever in this One Hundred Ninth 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 Ninth 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.
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Section 7. Nothing in this One Hundred Ninth 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 Ninth Supplemental
Indenture or any covenant, condition, stipulation, promise or agreement hereof,
and all the covenants, conditions, stipulations, promises and agreements in this
One Hundred Ninth 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 States of Florida, Georgia
and New Hampshire, 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. The mortgage granted in the One Hundred Sixth Supplemental
Indenture and Mortgage, dated as of September 1, 2004, in the Seabrook
Substation Property (as defined in said One Hundred Sixth Supplemental Indenture
and Mortgage), as supplemented hereby, is upon the statutory conditions as
defined in New Hampshire Revised Statutes Annotated ss.477:29, and upon the
further condition that all covenants and agreements of FPL contained in said One
Hundred Sixth Supplemental Indenture and Mortgage and in the Mortgage, as
supplemented hereby, 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
Revised Statutes Annotated ss.477:29.
Section 10. This One Hundred Ninth 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 Vice
Presidents, Assistant Vice Presidents, one of its Assistant Secretaries or one
of its Associates, all as of the day and year first above written.
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FLORIDA POWER & LIGHT COMPANY
By: /s/ K. Xxxxxxx Xxxxx
--------------------------------------
K. Xxxxxxx Xxxxx
Vice President, Accounting, Controller
and Chief Accounting Officer
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxx, XX 00000
Attest:
/s/ Xxxx X. Xxxxxx
-------------------------------------------
Xxxx X. Xxxxxx
Treasurer and Assistant Secretary
000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, XX 00000
Executed, sealed and delivered by
FLORIDA POWER & LIGHT COMPANY
in the presence of:
/s/ Xxx X. Black
-------------------------------------------
/s/ Xxxxxx X. XxXxxxxx
-------------------------------------------
DEUTSCHE BANK TRUST COMPANY AMERICAS
As Trustee
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Xxxxx Xxxxxxx
Vice President
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attest:
/s/ Xxxxxxx X Xxxxxxxxxx
-------------------------------------------
Xxxxxxx X Xxxxxxxxxx
Vice President
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Executed, sealed and delivered by
DEUTSCHE BANK TRUST COMPANY AMERICAS
in the presence of:
/s/ Xxxxxxxx Xxxxx
-------------------------------------------
/s/ Xxxxx Xxxxxxxxx
-------------------------------------------
STATE OF FLORIDA )
COUNTY OF PALM BEACH ) SS.:
On the 11th day of January, in the year 2006, before me personally came K.
Xxxxxxx Xxxxx, to me known, who, being by me duly sworn, did depose and say that
he resides at 0000 X.X. 000xx Xxx., Xxxxxxxxxx, XX 00000; 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 11th day of January, 2006, before me
personally appeared K. Xxxxxxx Xxxxx and Xxxx X. Xxxxxx, 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. Xxxxxxx Xxxxx and Xxxx X. Xxxxxx produced Florida Driver's License No.
X000-000-00-000-0 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/ Xxxxxxxxx Xxxxxxxx
Xxxxxxxxx Xxxxxxxx
Notary Public - State of Florida
My Commission Expires May 1, 2007
Commission #DD208340
Bonded By National Notary Assn.
STATE OF NEW YORK )
COUNTY OF NEW YORK ) SS:
On the 10th day of January, in the year 2006, before me personally came
Xxxxx Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that
she resides at 000 Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000; 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 10th day of January, 2006, before me
personally appeared Xxxxx Xxxxxxx and Xxxxxxx X Xxxxxxxxxx, respectively, a Vice
President and Vice President 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.
Xxxxx Xxxxxxx and Xxxxxxx X Xxxxxxxxxx produced New Jersey Driver's License
No. CO336 77700 57562 and New York State Driver's License No. 000 000 000 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/ Xxxxx Xxxxxxxxxxxxx
Xxxxx Xxxxxxxxxxxxx
Notary Public, State of New York
No 01JA6062022
Qualified in New York County
Commission Expires September 10, 2009
