EXHIBIT 4(b)
This Instrument was prepared by:
Paul J. Evanson of
Florida Power & Light Company
700 Universe Boulevard, Juno Beach, Florida 33408
FLORIDA POWER & LIGHT COMPANY
to
BANKERS TRUST COMPANY
As Trustee under Florida Power & Light
Company's Mortgage and Deed of Trust,
Dated as of January 1, 1944.
Ninety-fourth Supplemental Indenture
Relating to $135,000,000 Principal Amount
of First Mortgage Bonds, 7.05% Series
due December 1, 2026
Dated as of December 1, 1993
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 $472,500.00,
and intangible taxes as required by law in the amount of $45,279.00,
were paid on the Supplemental Indenture recorded in the public records
of Palm Beach County, Florida.
Note to Examiner: The new bonds ("New Bonds") being issued in
connection with this Supplemental Indenture are secured by real property
and personal property located both within Florida and outside of
Florida. The aggregate fair market value of the collateral exceeds the
aggregate principal amount of (y) the New Bonds plus (z) the other
outstanding bonds secured by the mortgage supplemented hereby and all
previous supplemental indentures thereto. The intangible tax has been
computed pursuant to Section 199.133 (2), Florida Statutes, by
(i) determining the percentage of the aggregate fair market value of the
collateral constituting real property situated in Florida and by
multiplying that percentage times the principal amount of the New Bonds
(the result hereinafter defined as the "Tax Base") and (ii) multiplying
the tax rate times the Tax Base.
NINETY-FOURTH SUPPLEMENTAL INDENTURE
INDENTURE, dated as of the 1st day of December, 1993, 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 Bankers Trust Company, a corporation of the State of New York, whose
post office address is Four Albany Street, New York, New York 10006
(hereinafter sometimes called the Trustee), as the ninety-fourth
supplemental indenture (hereinafter called the Ninety-fourth
Supplemental Indenture) to the Mortgage and Deed of Trust, dated as of
January 1, 1944 (hereinafter called the Mortgage), made and entered into
by FPL, the Trustee and The Florida National Bank of Jacksonville, as
Co-Trustee (now resigned), the Trustee now acting as 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
Ninety-fourth 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 record 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
Ninety-fourth Supplemental Indenture, and the terms of the bonds,
hereinafter referred to in Article I, have been duly authorized by the
Board of Directors of FPL by appropriate resolutions of said Board of
Directors;
Now, Therefore, This Indenture Witnesseth: That FPL, in
consideration of the premises and of One Dollar to it duly paid by the
Trustee at or before the ensealing and delivery of these presents, the
receipt whereof is hereby acknowledged, and in further evidence of
assurance of the estate, title and rights of the Trustee and in order
further to secure the payment of both the principal of and interest and
premium, if any, on the bonds from time to time issued under the
Mortgage, according to their tenor and effect, and the performance of
all the provisions of the Mortgage (including any instruments
supplemental thereto and any modification made as in the Mortgage
provided) and of said bonds, hereby grants, bargains, sells, releases,
conveys, assigns, transfers, mortgages, pledges, sets over and confirms
(subject, however, to Excepted Encumbrances as defined in Section 6 of
the Mortgage) unto Bankers Trust Company, as Trustee under the Mortgage,
and to its successor or successors in said trust, and to said Trustee
and its successors and assigns forever, all property, real, personal and
mixed, acquired by FPL after the date of the execution and delivery of
the Mortgage (except any herein or in the Mortgage, as heretofore
supplemented, expressly excepted), now owned (except any properties
heretofore released pursuant to any provisions of the Mortgage and in
the process of being sold or disposed of by FPL) or, subject to the
provisions of Section 87 of the Mortgage, hereafter acquired by FPL and
wheresoever situated, including (without in anywise limiting or
impairing by the enumeration of the same the scope and intent of the
foregoing) all lands, power sites, flowage rights, water rights, water
locations, water appropriations, ditches, flumes, reservoirs, reservoir
sites, canals, raceways, dams, dam sites, aqueducts, and all rights or
means for appropriating, conveying, storing and supplying water; all
rights of way and roads; all
plants for the generation of electricity by steam, water and/or other
power; all power houses, gas plants, street lighting systems, standards
and other equipment incidental thereto, telephone, radio and television
systems, air-conditioning systems and equipment incidental thereto,
water works, water systems, steam heat and hot water plants,
substations, lines, service and supply systems, bridges, culverts,
tracks, ice or refrigeration plants and equipment, offices, buildings
and other structures and the equipment thereof; all machinery, engines,
boilers, dynamos, electric, gas and other machines, regulators, meters,
transformers, generators, motors, electrical, gas and mechanical
appliances, conduits, cables, water, steam heat, gas or other pipes, gas
mains and pipes, service pipes, fittings, valves and connections, pole
and transmission lines, wires, cables, tools, implements, apparatus,
furniture, chattels, and choses in action; all municipal and other
franchises, consents or permits; all lines for the transmission and
distribution of electric current, gas, steam heat or water for any
purpose including towers, poles, wires, cables, pipes, conduits, ducts
and all apparatus for use in connection therewith; all real estate,
lands, easements, servitudes, licenses, permits, franchises, privileges,
rights of way and other rights in or relating to real estate or the
occupancy of the same and (except as herein or in the Mortgage, as
heretofore supplemented, expressly excepted) all the right, title and
interest of FPL in and to all other property of any kind or nature
appertaining to and/or used and/or occupied and/or enjoyed in connection
with any property hereinbefore or in the Mortgage, as heretofore
supplemented, described.
Together With all and singular the tenements, hereditaments
and appurtenances belonging or in anywise appertaining to the aforesaid
property or any part thereof, with the reversion and reversions,
remainder and remainders and (subject to the provisions of Section 57 of
the Mortgage) the tolls, rents, revenues, issues, earnings, income,
products and profits thereof, and all the estate, right, title and
interest and claim whatsoever, at law as well as in equity, which FPL
now has or may hereinafter acquire in and to the aforesaid property and
franchises and every part and parcel thereof.
It Is Hereby Agreed by FPL that, subject to the provisions of
Section 87 of the Mortgage, all the property, rights, and franchises
acquired by FPL after the date hereof (except any herein or in the
Mortgage, as heretofore supplemented, expressly excepted) shall be and
are as fully granted and conveyed hereby and as fully embraced within
the Lien of the Mortgage, as if such property, rights and franchises
were now owned by FPL and were specifically described herein and
conveyed hereby.
Provided that the following are not and are not intended to
be now or hereafter granted, bargained, sold, released, conveyed,
assigned, transferred, mortgaged, pledged, set over or confirmed
hereunder and are hereby expressly excepted from the Lien and operation
of this Ninety-fourth Supplemental Indenture and from the Lien and
operation of the Mortgage, as heretofore supplemented, viz: (1) cash,
shares of stock, bonds, notes and other obligations and other securities
not hereafter specifically pledged, paid, deposited, delivered or held
under the Mortgage or covenanted so to be; (2) merchandise, equipment,
materials or supplies held for the purpose of sale in the usual course
of business and fuel (including Nuclear Fuel unless expressly subjected
to the Lien and operation of the Mortgage by FPL in a future
Supplemental Indenture), oil and similar materials and supplies
consumable in the operation of any properties of FPL; rolling stock,
buses, motor coaches, automobiles and other vehicles; (3) bills, notes
and accounts receivable, and all contracts, leases and operating
agreements not specifically pledged under the Mortgage or covenanted so
to be; (4) the last day of the term of any lease or leasehold which may
hereafter become subject to the Lien of the Mortgage; (5) electric
energy, gas, ice, and other materials or products generated,
manufactured, produced or purchased by FPL for sale, distribution or use
in the ordinary course of its business; all timber, minerals, mineral
rights and royalties; (6) FPL's franchise to be a corporation; and
(7) the properties already sold or in the process of being sold by FPL
and heretofore released from the Mortgage and Deed of Trust, dated as of
January 1, 1926, from Florida Power & Light Company to Bankers Trust
Company and The Florida National Bank of Jacksonville, trustees, and
specifically described in three separate releases executed by Bankers
Trust Company and The Florida National Bank of Jacksonville, dated
July 28, 1943, October 6, 1943 and December 11, 1943, which releases
have heretofore been delivered by the said trustees to FPL and recorded
by FPL among the Public Records of all Counties in which such properties
are located; provided, however, that the property and rights expressly
excepted from the Lien and operation of the Mortgage in the above
subdivisions (2) and (3) shall (to the extent permitted by law) cease to
be so excepted in the event and as of the date that the Trustee or a
receiver or trustee shall enter upon and take possession of the
Mortgaged and Pledged Property in the manner provided in Article XIII of
the Mortgage by reason of the occurrence of a Default as defined in
Section 65 thereof.
To Have And To Hold all such properties, real, personal and
mixed, granted, bargained, sold, released, conveyed, assigned,
transferred, mortgaged, pledged, set over or confirmed by FPL as
aforesaid, or intended so to be, unto Bankers Trust Company, 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 Ninety-fourth
Supplemental Indenture being supplemental thereto.
And It Is Hereby Covenanted by FPL that all terms, conditions,
provisos, covenants and provisions contained in the Mortgage shall
affect and apply to the property hereinbefore described and conveyed and
to the estate, rights, obligations and duties of FPL and the Trustee and
the beneficiaries of the trust with respect to said property, and to the
Trustee and its successors as Trustee of said property in the same
manner and with the same effect as if said property had been owned by
FPL at the time of the execution of the Mortgage, and had been
specifically and at length described in and conveyed to said Trustee, by
the Mortgage as a part of the property therein stated to be conveyed.
FPL further covenants and agrees to and with the Trustee and
its successors in said trust under the Mortgage, as follows:
ARTICLE I
Ninety-fourth Series of Bonds
Section 1. (I) There shall be a series of bonds designated
"7.05% Series due December 1, 2026", herein sometimes referred to as the
"Ninety-fourth 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-fourth Series shall mature
on December 1, 2026 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 7.05% per annum, payable semi-
annually on June 1 and December 1 of each year; 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-fourth
Series shall be dated as in Section 10 of the Mortgage provided.
(II) Bonds of the Ninety-fourth Series shall not be
redeemable prior to December 1, 2003. On and after December 1, 2003,
bonds of the Ninety-fourth 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 39 or 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, at the
following general redemption prices, expressed in percentages of the
principal amount of the bonds to be redeemed:
General Redemption Prices
If redeemed during the 12 month period ending November 30,
2004 . . . . . . . .102.73% 2016. . . . . . . . .100.00%
2005 . . . . . . . .102.46% 2017. . . . . . . . .100.00%
2006 . . . . . . . .102.19% 2018. . . . . . . . .100.00%
2007 . . . . . . . .101.91% 2019. . . . . . . . .100.00%
2008 . . . . . . . .101.64% 2020. . . . . . . . .100.00%
2009 . . . . . . . .101.37% 2021. . . . . . . . .100.00%
2010 . . . . . . . .101.09% 2022. . . . . . . . .100.00%
2011 . . . . . . . .100.82% 2023. . . . . . . . .100.00%
2012 . . . . . . . .100.55% 2024. . . . . . . . .100.00%
2013 . . . . . . . .100.27% 2025. . . . . . . . .100.00%
2014 . . . . . . . .100.00% 2026. . . . . . . . .100.00%
2015 . . . . . . . .100.00%
in each case, together with accrued interest to the date fixed for
redemption.
(III) At the option of the registered owner, any bonds of
the Ninety-fourth Series, upon surrender thereof
for cancellation 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-fourth Series shall be transferrable
(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-fourth
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-fourth 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
Ninety-fourth Series" immediately before the words "remain Outstanding".
ARTICLE III
Miscellaneous Provisions
Section 3. Subject to the amendments provided for in this
Ninety-fourth Supplemental Indenture, the terms defined in the Mortgage,
as heretofore supplemented, shall, for all purposes of this
Ninety-fourth 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
Ninety-fourth Supplemental Indenture or for or in respect of the
recitals contained herein, all of which recitals are made by FPL solely.
In general, each and every term and condition contained in Article XVII
of the Mortgage, as heretofore amended, shall apply to and form part of
this Ninety-fourth Supplemental Indenture with the same force and effect
as if the same were herein set forth in full with such omissions,
variations and insertions, if any, as may be appropriate to make the
same conform to the provisions of this Ninety-fourth Supplemental
Indenture.
Section 5. Whenever in this Ninety-fourth Supplemental
Indenture either of the parties hereto is named or referred to, this
shall, subject to the provisions of Articles XVI and XVII of the
Mortgage, as heretofore amended, be deemed to include the successors and
assigns of such party, and all the covenants and agreements in this
Ninety-fourth Supplemental Indenture contained by or on behalf of FPL,
or by or on behalf of the Trustee, or either of them, shall, subject as
aforesaid, bind and inure to the respective benefits of the respective
successors and assigns of such parties, whether so expressed or not.
Section 6. Nothing in this Ninety-fourth Supplemental
Indenture, expressed or implied, is intended, or shall be construed, to
confer upon, or to give to, any person, firm or corporation, other than
the parties hereto and the holders of the bonds and coupons Outstanding
under the Mortgage, any right, remedy or claim under or by reason of
this Ninety-fourth Supplemental Indenture or any covenant, condition,
stipulation, promise or agreement hereof, and all the covenants,
conditions, stipulations, promises and agreements in this Ninety-fourth
Supplemental Indenture contained by or on behalf of FPL shall be for the
sole and exclusive benefit of the parties hereto, and of the holders of
the bonds and coupons Outstanding under the Mortgage.
Section 7. 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 8. This Ninety-fourth Supplemental Indenture shall
be executed in several counterparts, each of which shall be an original
and all of which shall constitute but one and the same instrument.
In Witness Whereof, FPL has caused its corporate name to be
hereunto affixed, and this instrument to be signed and sealed by its
President or one of its Vice Presidents, and its corporate seal to be
attested by its Secretary or one of its Assistant Secretaries for and in
its behalf and Bankers Trust Company 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 or one of its
Assistant Secretaries, all as of the day and year first above written.
Florida Power & Light Company
By PAUL J. EVANSON
Paul J. Evanson
Senior Vice President,
Finance and Chief Financial Officer
700 Universe Boulevard
Juno Beach, FL 33408
Attest:
PETER D. BOYLAN
Peter D. Boylan
Assistant Treasurer and
Assistant Secretary
700 Universe Boulevard
Juno Beach, FL 33408
Executed, sealed and delivered by
Florida Power & Light Company
in the presence of:
DAVID A. HOLT
David A. Holt
MICHELE T. CANINO
Michele T. Canino
Bankers Trust Company,
As Trustee
By ROBERT CAPORALE
Robert Caporale
Vice President
4 Albany Street - 4th Floor
New York, NY 10006
Attest:
SHIKHA DOMBEK
Shikha Dombek
Assistant Secretary
4 Albany Street - 4th Floor
New York, NY 10006
Executed, sealed and delivered by
Bankers Trust Company
in the presence of:
JOHN FLORIO
John Florio
DENISE MITCHELL
Denise Mitchell
State of Florida
County of Palm Beach ss.:
On the 8th day of December, in the year 1993, before me personally
came Paul J. Evanson, to me known, who, being by me duly sworn, did
depose and say that he resides at 12087 Turtle Beach Road, North Palm
Beach, Florida 33408; that he is the Senior Vice President, Finance and
Chief Financial 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 8th day of December, 1993, before me
personally appeared Paul J. Evanson and Peter D. Boylan, respectively,
the Senior Vice President, Finance and Chief Financial Officer and an
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.
Paul J. Evanson and Peter D. Boylan produced Florida Driver's License
No. E152-690-41-216-0 and Florida Driver's License No. B450-664-52-048
as identification, respectively, and did take an oath.
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.
BRENDA F. SMITH
Brenda F. Smith
Notary Public, State of
Florida
Commission No. CC 198030
My Commission Expires
May 3, 1996
State of New York
County of New York ss.:
On the 8th day of December, in the year 1993, before me personally
came Robert Caporale, to me known, who, being by me duly sworn, did
depose and say that he resides at 25 Lake Street, White Plains, New
York; that he is a Vice President of Bankers Trust 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 8th day of December, 1993, before me
personally appeared Robert Caporale and Shikha Dombek, respectively, a
Vice President and an Assistant Secretary of Bankers Trust Company, 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.
Robert Caporale and Shikha Dombek produced New York Driver's License
No. C01579 27892 342291 62 and New York Driver's License
No. G21620 81923 203244 64 as identification, respectively, and did take
an oath.
Witness my signature and official seal at New York City, in the County
of New York, and State of New York, the day and year last aforesaid.
MARIA A. JOHNSON