SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report: September 2, 1994
BLACK HILLS CORPORATION
State of South Dakota File Number 1-7978 IRS Number 46-0111677
625 Ninth Street
Rapid City, South Dakota 57709
Registrant's telephone number (605) 348-1700
<PAGE>
Item 5. Other Events
On August 24, 1994, the Board of Directors of Black Hills Corporation
("Company") authorized the issuance and sale in an underwritten public
offering of an aggregate of $45,000,000 of the Company's First Mortgage
Bonds, 8.30%, Series AB, due September 1, 2024 ("Bonds") under a
Registration Statement on Form S-3 (Registration no. 33-54329)
("Registration Statement"), the related Prospectus dated July 13, 1994 and
a related Prospectus Supplement, dated August 25, 1994.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits
(c) Exhibits
The following Exhibits are filed as a part of this Report and
as Exhibits to the Registration Statement:
Exhibit 4.05(ac) Twenty Ninth Supplemental Indenture,
dated September 1, 1994, establishing
the terms of the Bonds.
Exhibit 12.01(a) Computation of Ratio of Earnings to
Fixed Charges
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
BLACK HILLS CORPORATION
By /s/DALE E. CLEMENT
Dale E. Clement, Senior Vice
President - Finance
Dated: September 2, 1994
BLACK HILLS CORPORATION
TO
CHEMICAL BANK,
As Trustee
__________________________
TWENTY NINTH
SUPPLEMENTAL INDENTURE
Dated as of September 1, 1994
__________________________
Supplemental to Indenture of Mortgage and
Deed of Trust Dated as of September 1, 1941
First Mortgage Bonds, Series AB,
8.30%, due September 1, 2024
<PAGE>
TWENTY NINTH SUPPLEMENTAL INDENTURE, dated as of the 1st day
of September, 1994, between Black Hills Corporation (which was
formerly named Black Hills Power and Light Company and which now
operates its electric utility operations under the assumed name
of Black Hills Power and Light Company), a corporation organized
and existing under the laws of the State of South Dakota
(hereinafter called the "Company"), party of the first part, and
Chemical Bank, a corporation organized and existing under the
laws of the State of New York, as Trustee under the Indenture
hereinafter mentioned (hereinafter called the "Trustee"), party
of the second part.
WHEREAS, in order to secure an authorized issue of First
Mortgage Bonds of the Company, the Company has executed and
delivered an Indenture of Mortgage and Deed of Trust to Central
Hanover Bank and Trust Company (the successor by various mergers
of which is Chemical Bank), as Trustee, dated September 1, 1941,
hereinafter referred to as the "Original Indenture," and has also
executed and delivered to said Trustee and its predecessors, as
Trustee, various Supplemental Indentures supplementing and/or
modifying the Original Indenture, respectively dated as follows:
First Supplemental Indenture July 15, 1945
Second Supplemental Indenture January 15, 1948
Third Supplemental Indenture January 15, 1949
Fourth Supplemental Indenture March 1, 1950
Fifth Supplemental Indenture March 1, 1952
Sixth Supplemental Indenture July 1, 1956
Seventh Supplemental Indenture May 1, 1957
Eighth Supplemental Indenture May 1, 1959
Ninth Supplemental Indenture April 1, 1960
Tenth Supplemental Indenture August 1, 1960
Eleventh Supplemental Indenture June 1, 1961
Twelfth Supplemental Indenture October 1, 1962
Thirteenth Supplemental Indenture May 1, 1963
Fourteenth Supplemental Indenture June 1, 1969
Fifteenth Supplemental Indenture June 15, 1974
Sixteenth Supplemental Indenture August 1, 1974
Seventeenth Supplemental Indenture July 15, 1975
Eighteenth Supplemental Indenture May 1, 1976
Nineteenth Supplemental Indenture February 15, 1977
Twentieth Supplemental Indenture April 1, 1977
Twenty First Supplemental Indenture June 1, 1977
Twenty Second Supplemental Indenture July 14, 1982
Twenty Third Supplemental Indenture September 1, 1986
Twenty Fourth Supplemental Indenture April 13, 1987
Twenty Fifth Supplemental Indenture June 15, 1988
Twenty Sixth Supplemental Indenture May 15, 1991
Twenty Seventh Supplemental Indenture June 1, 1991; and
<PAGE>
WHEREAS, pursuant to the provisions of the Indenture,
First Mortgage Bonds have been duly issued and are presently
outstanding and secured by the Indenture as follows:
Principal Amount
Series Outstanding
------ ----------------
Series O, 8.05%, due June 1, 1999 $ 4,875,000
Series T, 6-5/8%, due April 1, 2007 840,000
Series U, 6-5/8%, due April 1, 2007 840,000
Series X, 8.375%, due October 1, 1998 3,340,000
Series Y, 9.49%, due June 15, 2018 6,000,000
Series Z, 9.35%, due May 29, 2021 35,000,000
Series AA, 9.00%, due September 1, 2003 10,561,304
-----------
$61,456,304
===========
; and
WHEREAS, as permitted by the Indenture, the Company, by
resolutions of its Board of Directors duly adopted, has
determined to create a new series of bonds to be known as its
"First Mortgage Bonds, Series AB, 8.30%, due September 1, 2024"
(herein called "Series AB Bonds"), to be initially authenticated
and delivered in the aggregate principal amount of $45,000,000 in
the form, having the characteristics and being entitled to the
benefits as in the Indenture or as in this Supplemental Indenture
provided; and
WHEREAS, the Company, in exercise of the powers and
authority conferred upon and reserved to it under and by virtue
of the provisions of the Indenture, and particularly the
provisions contained in Articles Two and Seventeen thereof, and
pursuant to appropriate resolutions of its Board of Directors,
has duly resolved and determined to make, execute and deliver to
the Trustee a Twenty Ninth Supplemental Indenture in the form
hereof (herein sometimes referred to as "this Supplemental
Indenture") for the purposes herein provided; and
WHEREAS, all conditions and requirements necessary to make
this Supplemental Indenture a valid, binding and legal instrument
in accordance with its terms have been done, performed and
fulfilled, and the execution and delivery hereof have been in all
respects duly authorized;
NOW THEREFORE, THIS INDENTURE WITNESSETH: That the Company,
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
of other good and valuable consideration, in order to better
secure the payment both of the principal of and interest on all
Bonds issued under the Indenture and that may be issued under
this or any other indentures supplemental thereto, according to
their tenor and effect, and the performance by the Company of all
the covenants and conditions herein and therein contained, and in
order to establish the terms of the Series AB Bonds, hereby
further covenants and agrees to and with the Trustee and its
successors in the trust under the Indenture for the benefit of
all those who shall from time to time hold the Series AB Bonds as
follows:
The Company does hereby ratify and confirm its Mortgage and
Pledge to the Trustee of all property described in the Indenture
and does hereby by these presents grant, bargain, sell, warrant,
alien, remise, release, convey, confirm, assign, mortgage, pledge
and set over unto the Trustee, and to its successors and assigns
forever, the following described property acquired by the Company
and not heretofore specifically described under the Indenture:
LANDS IN LAWRENCE COUNTY, SOUTH DAKOTA
Lot S, being a part of M.S. 1556, M.S. 1557, M.S. 1559, M.S.
1866, Lot 10-3 and Lot 10-10 located in the SW1/4NW1/4 of Section 10,
Township 4 North, Range 3 East of the Black Hills Meridian.
An undivided one-half interest in Lot 1A, a subdivision of Tract
B of Miller Addition located in the N1/2SW1/4 of Section 13, Township
6 North, Range 2 East of the Black Hills Meridian.
Kirk Power Plant Properties
Parcels Numbered 1, 2, 3, 4 and 5, the same being a portion of
and contained within the Kirk Power Plant Tract No. 1, a
subdivision of Mineral Surveys 400-1050-1309-1521-1522 according
to plat of said subdivision on file in the office of the Register
of Deeds of Lawrence County, South Dakota, and comprising a
portion of Union Lode Mining Claim (Mineral Survey No. 400) and a
portion of Robert Calvin, Robert Calvin No. 1 and Robert Calvin
No. 2 Lode Mining Claims (Mineral Survey No. 1521), and which
said Parcels numbered 1, 2, 3, 4 and 5 are as shown on plat filed
in such Register of Deeds office and which are more particularly
described as follows:
(Reference ties for the above parcels: From the Southwest corner
of Section 33, Township 5 North, Range 3 East, Black Hills
Meridian, Corner No. 3 of the Robert Calvin Lode Mining Claim
[Mineral Survey No. 1521] in Whitewood Mining District, Lawrence
County South Dakota, lies South 74 degrees 26' 10" East 2635.5 feet.
The survey corner [Northeast Corner of Kirk Power Plant Building]
lies North 45 degrees 10' West 403.52 feet, from said Corner No. 3.)
PARCEL NO. 1 (Cooling Tower Area): From the survey corner of
the Northeast Corner of foundation of Kirk Power Plant Building,
corner No. 1, the place of beginning of said Parcel No. 1 lies
South 58 degrees 55' East 99.3 feet. From such Corner No. 1 continue
thence as follows:
Course Bearing Distance
------ ------- --------
1 to 2 S62 degrees 30'E 186.00'
2 to 3 S27 degrees 30'W 58.00'
3 to 4 N62 degrees 30'W 186.00'
4 to 1 N27 degrees 30'E 58.00' the place of beginning
PARCEL NO. 2 (Transformer Area): From the survey corner of the
Northeast corner of foundation of Kirk Power Plant Building,
Corner No. 1 and place of beginning of this Parcel No. 2 lies
North 45 degrees 08' East 10.00 feet. From such Corner No. 1 continue
thence as follows:
Course Bearing Distance
------ ------- --------
1 to 2 S44 degrees 52'E 60.00'
2 to 3 S45 degrees 08'W 62.50'
3 to 4 N44 degrees 52'W 60.00'
4 to 1 N45 degrees 08'E 62.50' the place of beginning
PARCEL NO. 3 (Boiler and Turbine Area): From the survey Corner
on the Northeast Corner of foundation of Kirk Power Plant
Building, Corner No. 1 and place of beginning of this Parcel No.
3 lies north 73 degrees 35' West 109.83 feet. From such Corner No. 1
continue thence as follows:
Course Bearing Distance
------ ------- --------
1 to 2 S45 degrees 08'W 64.00' Corner 2 is a point on NE
side of partition wall
2 to 3 N44 degrees 52'W 35.33' Along NE side of partition
wall
3 to 4 S45 degrees 08'W 91.75'
4 to 5 N44 degrees 52'W 41.33'
5 to 6 N45 degrees 08'E 92.91' Corner 6 is a point on NE
side of building wall
6 to 7 S44 degrees 52'E 12.66' Along NE side of building
wall
7 to 8 N45 degrees 08'E 62.84'
8 to 1 S44 degrees 52'E 64.00' The place of beginning
together with all of that portion of the existing Kirk Power
Plant Building within the confines of such Parcel No. 3, as above
described, and which said portion commences at Corner No. 1 of
said Parcel, which is a point on the Northeast side of a
partition wall in said building lying North 73 degrees 35' West 109.83
feet from the Northeast Corner of the foundation of such Kirk
Power Plant Building, and following thence along the lines and
for the distances above designated between Corner No. 1 and
Corner No. 2, and between Corner No. 2 and Corner No. 3, and
thence for a distance of 65.94 feet along the line between Corner
No. 3 and Corner No. 4 to a point immediately outside the
building wall, thence at right angle parallel to a line from
Corner No. 4 to Corner No. 5 to the intersection of the line
between Corner No. 5 and Corner No. 6 and thence along such line
to said Corner No. 6 thence along the line between Corner No. 6
and to Corner No. 7 and along an extension of this line 16.83
feet to the outside of the building wall from Corner No. 7,
thence at right angles along the building wall, and parallel to
the line from Corner No. 7 to Corner No. 8, a distance of 62.84
feet to the intersection of a line between Corner No. 8 and
Corner No. 1, thence at right angles along the line from Corner
No. 8 to Corner No. 1 a distance of 47.17 feet and to such Corner
No. 1, the point of beginning.
PARCEL NO. 4 (Switch Station Area): From survey corner on the
Northeast corner of foundation of Kirk Power Plant Building,
Corner No. 1 and place of beginning of this Parcel No. 4 lies
South 28 degrees 04' West 326.2 feet. From such Corner No. 1 continue
thence as follows:
Course Bearing Distance
------ ------- --------
1 to 2 S32 degrees 26'E 88.00'
2 to 3 S57 degrees 34'W 112.00'
3 to 4 N32 degrees 26'W 88.00'
4 to 1 N57 degrees 34'E 112.00' the place of beginning
PARCEL NO. 5 (Warehouse Area): From survey corner on the
Northeast corner of foundation of Kirk Power Plant Building,
Corner No. 1 and place of beginning of this Parcel No. 5 lies
North 50 degrees 39' West 365.7 feet. From such Corner No. 1 continue
thence as follows:
Course Bearing Distance
------ ------- --------
1 to 2 N64 degrees 33'W 100.00'
2 to 3 N25 degrees 27'E 37.00'
3 to 4 S64 degrees 33'E 100.00'
4 to 1 S25 degrees 27'W 37.00' to the place of beginning.
LANDS IN FALL RIVER COUNTY, SOUTH DAKOTA
The North 60 feet of Lots 1 and 2 of Block 136 of the First
Addition in the City of Edgemont.
LANDS IN PENNINGTON COUNTY, SOUTH DAKOTA
Lot 2 of Prairie Hills Subdivision, as shown by the plat recorded
in Plat Book 26 of Plats on Page 22 in the office of the Register
of Deeds.
LANDS IN MEADE COUNTY, SOUTH DAKOTA
Lots 27, 28, 29, and 30 in Block 4 of Fort Meade Addition to the
City of Sturgis.
LANDS IN WESTON COUNTY, WYOMING
Osage Power Plant Properties
A parcel of land hereby designated as the "Plant Site" described
as follows:
Beginning at Corner No. 1 which is 1305.7 feet distant from the
West 1/4 corner of Section 15, Township 46 North, Range 63 West of
the 6th Principal Meridian, Weston County, State of Wyoming, on a
course North 65 degrees 53' East; thence South 36 degrees 31' East
53 feet to Corner No. 2; thence North 53 degrees 29' East 168 feet
to Corner No. 3; thence North 36 degrees 31' West 53 feet to Corner
No. 4; thence South 53 degrees 29' West 168 feet to Corner No. 1
which is the point of beginning; containing .204 acres.
A parcel of land hereby designated as the "Cooling Tower Site"
described as follows:
Beginning at Corner No. 1 which is 209.8 feet distant from Corner
No. 3 of the above-described Plant Site on a course South 33 degrees
57' East; thence South 36 degrees 31' East 114.2 feet to Corner No. 2;
thence North 53 degrees 29' East 69.5 feet to Corner No. 3; thence North
36 degrees 31' West 114.2 feet to Corner No. 4; thence South 53 degrees
29' West 69.5 feet to Corner No. 1 which is the point of beginning;
containing .182 acres.
A parcel of land hereby designated as the "Well Site" described
as follows:
Beginning at Corner No. 1 which is 160.9 feet distant from Corner
No. 3 of the above-described Plant Site on a Course South 68 degrees
24' East; thence South 36 degrees 31' East 30 feet to Corner No. 2;
thence North 53 degrees 29' East 30 feet to Corner No. 3; thence
North 36 degrees 31' West 30 feet to Corner No. 4; thence South
53 degrees 29' West 30 feet to Corner No. 1 which is the point of
beginning; containing .021 acres.
LANDS IN CAMPBELL COUNTY, WYOMING
An undivided 20 percent interest in all of Foothills Planned Unit
Development, Phase 1A according to the corrected plat thereof
recorded 26 December 1979 in Book 2 of Plats, Pages 227 and 228.
Wyodak Plant Properties
An undivided 20 percent interest in a plot of land known as Plot
A--Power Plant located in the NW1/4 of Section 27 in Township 50
North, Range 71 West of the 6th Principal Meridian; being more
particularly described as follows:
Commencing at a brass cap which is the 1/4 corner between Sections
28 and 27, Township 50 North, Range 71 West; thence N33 degrees
57'43"E, 1354.62 feet to a point being the TRUE POINT OF BEGINNING:
thence
N 45 degrees 00'52" W, 288.82 feet to a point; thence
N 67 degrees 12'58" W, 29.35 feet to a point; thence
N 03 degrees 27'50" E, 114.44 feet to a point; thence
N 44 degrees 55'47" W, 312.85 feet to a point; thence
N 05 degrees 01'01" E, 331.71 feet to a point; thence
N 44 degrees 57'59" E, 564.50 feet to a point; thence
S 44 degrees 52'59" E, 212.63 feet to a point; thence
N 44 degrees 58'52" E, 393.95 feet to a point; thence
S 48 degrees 21'29" E, 585.24 feet to a point; thence
N 41 degrees 38'31" E, 85.16 feet to a point; thence
S 48 degrees 21'29" E, 250.00 feet to a point; thence
S 41 degrees 38'31" W, 85.16 feet to a point; thence
S 48 degrees 21'29" E, 206.84 feet to a point; thence
S 04 degrees 11'13" W, 295.68 feet to a point; thence
S 44 degrees 56'10" W, 494.06 feet to a point; thence
S 87 degrees 19'13" W, 69.18 feet to a point; thence
N 15 degrees 59'58" W, 20.68 feet to a point; thence
S 87 degrees 01'45" W, 414.71 feet to a point; thence
S 00 degrees 56'29" W, 29.15 feet to a point; thence
S 83 degrees 25'42" W, 332.06 feet to a point which is the TRUE POINT OF
BEGINNING.
Said Plot contains 36.08 acres, more or less.
The E1/2NE1/4 of Section 28, Township 50 North, Range 71 West of the
6th Principal Meridian.
The NE1/4SE1/4 of Section 28, Township 50 North, Range 71 West of the
6th Principal Meridian.
TOGETHER with all contracts, agreements, rights and
understandings, whether now owned or hereafter acquired for the
purchase or exchange of electric energy or for the making of
connections for exchange of energy or service;
TOGETHER with, all and singular, the tenements,
hereditaments and appurtenances belonging or in any way
appertaining to said property or any part thereof, with the
reversion and reversions, remainder and remainders, 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 the Company now
has or may hereafter acquire in and to said property, and every
part and parcel thereof;
TOGETHER with all property, real, personal and mixed
situated upon, connected with, used in connection with, or in any
wise appertaining to any of the property described in the
Indenture or in this Supplemental Indenture, presently owned by
the Company (other than Excepted Property as defined in the
Indenture), and including all rights of way, easements, licenses,
permits, and privileges in connection with or pertaining to all
of such property, whether existing by reason of express or
implied, written or oral, evidences of ownership, rights,
agreements or understandings;
TOGETHER with all electric generating plants and electric
transmission and distribution systems now owned by the Company,
and any additions to or extensions of any such electric
generating plants and electric transmission and distribution
systems, together with all engines, dynamos, motors, generators,
boilers, turbines, pole lines, poles, wires, cross-arms,
insulators, transformers, meters, buildings, erections,
structures, stations, substations, powerhouses, power producing
and power transmitting equipment, water, water rights,
waterwheels, headworks, race-ways, hydraulic-works, hydroelectric
plants, cables, conduits, tools, instruments, apparatus,
appliances, machinery, facilities, fixtures and all other
property used or provided for use in the construction, repair,
maintenance or operation thereof (other than Excepted Property as
defined in the Indenture), and together also with all the rights,
privileges, franchises, easements, licenses, ordinances, rights
of way, liberties, immunities and permits of the Company
howsoever conferred or acquired with respect to the construction,
maintenance, repair or operation of said electric generating
plants and electric transmission or distribution systems, and
each of them, and any additions thereto and extension thereof;
TO HAVE AND TO HOLD all such properties, real, personal
and mixed, mortgaged, pledged or conveyed by the Company as
aforesaid, or intended so to be, unto the Trustee and its
successors and assigns forever;
IN TRUST, NEVERTHELESS, for the same purposes and upon
the same trusts, terms and conditions, and subject to and with the
same provisions and covenants as are set forth in the Indenture
(as amended by this Supplemental Indenture) with the same effect
in all respects as if the property and rights herein described
and herein conveyed to the Trustee had, at the time of the
execution and delivery of the Original Indenture, been owned by
the Company and had been specifically and at length described in
and conveyed to the Trustee by the Original Indenture as a part
of the property therein stated to be conveyed.
ARTICLE ONE
Series AB Bonds, 8.30%
SECTION 1.01. There is hereby created a series of Bonds,
known as and entitled "First Mortgage Bonds, Series AB, 8.30%,
due September 1, 2024", and the form thereof shall be as provided
in this Supplemental Indenture.
The aggregate principal amount of Series AB Bonds which
may be authenticated and delivered and outstanding under the
Indenture and this Supplemental Indenture shall be limited in
aggregate principal amount to $45,000,000, except as provided
under Section 2.12 of the Indenture. The Series AB Bonds shall
bear interest at the rate of 8.30% per annum until the principal
thereof becomes due and payable and shall bear interest on
overdue principal (including any overdue mandatory prepayment of
principal) and premium, if any, and (to the extent legally
enforceable) on any overdue installment of interest at the rate
of 9.30% per annum until such overdue principal, premium or
interest shall be paid. The Series AB Bonds shall mature
September 1, 2024.
The Series AB Bonds shall be registered Bonds without
coupons in denominations of $1,000 and any multiples of $1,000
which may be executed by the Company and delivered to the Trustee
for authentication and delivery. The date of commencement of the
first interest period for the Series AB Bonds shall be the date
of initial authentication and delivery thereof. The Series AB
Bonds shall be dated as provided in Section 2.05 of the
Indenture, and shall be numbered from ABRX1 consecutively
upwards. All Series AB Bonds shall bear interest from their
respective issue dates. The principal and interest shall be due
and payable as provided in the Bond form at Section 1.02 of this
Supplemental Indenture. The principal of, premium, if any, and
interest on the Series AB Bonds shall be payable at the principal
corporate trust office of the Trustee, in the Borough of
Manhattan, The City of New York, in any coin or currency of the
United States of America which at the time of payment shall be
legal tender for the payment of public and private debts. The
Series AB Bonds shall be subject to redemption as provided in
Sections 1.03 and 1.04 of this Supplemental Indenture and Section
8.08 of the Indenture.
Without limiting the other indemnities provided to the
Trustee, the Company shall indemnify and save the Trustee
harmless from any liabilities and costs incurred by the Trustee
arising out of the making of the final payment when due of the
principal owing on any of the Series AB Bonds without the
surrender of such Bond to the Trustee.
The Trustee is hereby appointed Registrar in respect of
the Series AB Bonds, and the principal corporate trust office of the
Trustee in the Borough of Manhattan, The City of New York, is
hereby designated as the office or agency of the Company in said
Borough where notices or demands in respect of Series AB Bonds
may be served.
The definitive Series AB Bonds shall be issued in such
printed form as approved by the Trustee. Subject to the
foregoing provisions of this Section and to the provisions of
Section 2.11 of the Indenture, all definitive Series AB Bonds
shall, upon surrender thereof to the Trustee at its principal
office, be exchangeable for other Bonds of the same series, in
registered form and in such authorized denomination or
denominations in the same aggregate principal amount, as may be
requested by the holder surrendering the same. The Company will
execute, and the Trustee shall authenticate and deliver,
registered Series AB Bonds without coupons, whenever the same
shall be required for any such exchange.
SECTION 1.02. The text of the Series AB Bonds, and the
certificate of authentication of the Trustee to be executed
thereon, are to be substantially in the following forms,
respectively:
(FORM OF SERIES AB BONDS)
No. ABRX __________ $______________________
BLACK HILLS CORPORATION
FIRST MORTGAGE BOND, SERIES AB, 8.30%, DUE SEPTEMBER 1, 2024
BLACK HILLS CORPORATION (hereinafter called the "Company"),
a corporation organized and existing under the laws of the State
of South Dakota, for value received, hereby promises to pay to
, or registered assigns,
on the 1st day of September, 2024, at the principal corporate trust
office of the Trustee, in the Borough of Manhattan, The City of New
York, Dollars, in any
coin or currency of the United States of America which at the time
of payment shall be legal tender for the payment of public and
private debts, and to pay interest thereon from the date hereof, at
the rate of 8.30 percent, per annum (computed on the basis of a
360-day year of 12 thirty-day months), payable at said principal
office of the Trustee in like coin or currency semi-annually on
March 1 and September 1 in each year until the principal hereof shall
have become due and payable, and thereafter if default be made in
the payment of such principal and premium, if any, and on any overdue
installment of interest, at the rate of 9.30 percent, per until
such overdue principal, premium or interest shall be paid. The
interest payment shall be due March 1, 1995 and shall include interest
from the date of initial authentication and delivery thereof.
This Bond is one of an authorized issue of Bonds of the
Company known as its "First Mortgage Bonds", issued and to be issued
in one or more series under, and all equally and ratably secured (except
as any sinking, amortization, improvement, renewal or other analogous
fund, established in accordance with the provisions of the Indenture
hereinafter mentioned, may afford additional security for the Bonds of
any particular series) by an Indenture of Mortgage and Deed of Trust
dated as of September 1, 1941 executed by the Company to Central
Hanover Bank and Trust Company (subsequently known as The Hanover
Bank and herein, with its successor by merger, Chemical Bank, called
the "Trustee"), as Trustee, as supplemented and amended by
Supplemental Indentures dated as of July 15, 1945, January 15, 1948,
January 15, 1949, March 1, 1950, March 1, 1952, July 1, 1956, May 1,
1957, May 1, 1959, April 1, 1960, August 1, 1960, June 1, 1961,
October 1, 1962, May 1, 1963, June 1, 1969, June 15, 1974, August 1,
1974, July 15, 1975, May 1, 1976, February 15, 1977, April 1, 1977,
June 1, 1977, July 14, 1982, September 1, 1986, April 13, 1987,
June 15, 1988, May 15, 1991, June 1, 1991 and September 1, 1994
(said Original Indenture as so supplemented and amended being
hereinafter collectively called the "Indenture"), to which Indenture
and all further instruments supplemental thereto reference is hereby
made for a description of the properties mortgaged and pledged, the
nature and extent of the security, the rights of the holders of
said Bonds and the coupons appurtenant to coupon Bonds, if any, and
of the Trustee and of the Company in respect of such security, and
the terms and conditions upon which said Bonds are and are to be
issued and secured.
As provided in the Indenture, said Bonds are issuable in series
which may vary as in the Indenture provided or permitted. This Bond is
one of a series of Bonds authorized by the Twenty Ninth Supplemental
Indenture and entitled "First Mortgage Bonds, Series AB, 8.30%, due
September 1, 2024" (the "Series AB Bonds").
To the extent permitted by the Indenture and as provided
therein, with the consent of the Company and upon the written consent or
affirmative vote of at least sixty-six and two-thirds percent in
principal amount of the Bonds then outstanding and entitled to
consent, and of not less than sixty-six and two-thirds percent, in
principal amount of the Bonds then outstanding and entitled to
consent of each series affected thereby in case one or more but less
than all of the series of Bonds issued under the Indenture are so
affected, the rights and obligations of the Company and of the
holders of Bonds and coupons appurtenant to coupon Bonds, and
the terms and provisions of the Indenture and of any instrument
supplemental thereto may be modified from time to time, provided that
no such modification or alteration shall be made which would postpone
the date fixed herein or in the Indenture for the payment of the
principal of, or any installment of interest on, the Bonds, or reduce
the principal of, or the rate of interest payable on, the Bonds, or
reduce the percentage of the principal amount of Bonds the consent
of which is required for the authorization of any such modification
or alteration, without the consent of all of the holders affected
thereby. The rights, duties or immunities of the Trustee shall not
be modified without the written consent of the Trustee.
Consent Bonds.
--------------
The Holders, including any successor Holders, of these Series AB
Bonds to be issued under the terms of the Twenty Ninth Supplemental
Indenture, by becoming such Holders shall be deemed to have consented to
the Twenty Eighth Supplemental Indenture ("Proposed Supplement"), a copy
of which is attached as Exhibit A to the Twenty Ninth Supplemental
Indenture authorizing the Series AB Bonds. This provision does hereby
constitute a written consent of the Holders, including all successor
Holders, of the Series AB Bonds to the execution and adoption of the
Proposed Supplement under the provisions of Section 18.11 of the
Indenture, and such consent is received by the Trustee as a consent
for the Trustee to execute the Proposed Supplement in lieu of the
holding of a meeting of Bondholders pursuant to Article Eighteen of
the Indenture.
Optional Redemption.
--------------------
The Series AB Bonds are subject to redemption, in whole or
in part, at the option of the Company on (but not before) September 1,
2004 or at any time thereafter, upon at least thirty (30) days and not
more than fifty (50) days notice, mailed to all registered owners of the
Bonds of this Series to be redeemed, at their respective addresses as
the same shall appear on the Bond register of the Company, all
subject to the conditions and as more fully provided in the Indenture,
upon payment of accrued interest to the redemption date plus the
applicable percentage of the principal amount thereof set forth below:
If Redeemed During If Redeemed During
12 Month Period 12 Month Period
Beginning Redemption Beginning Redemption
September 1 Price September 1 Price
----------- ----- ----------- -----
2004 104.040% 2010 101.616%
2005 103.636 2011 101.212
2006 103.232 2012 100.808
2007 102.828 2013 100.404
2008 102.424 2014 100.000
2009 102.020
and thereafter at 100 percent of the principal amount thereof.
Pursuant to the provisions of Section 8.05 of the Indenture,
the Company may request the Trustee to apply moneys deposited with the
Trustee ("Trust Moneys") for various reasons toward the redemption of
those Bonds, including payment of premium and accrued interest,
selected by the Company. In the Twenty Ninth Supplemental Indenture,
the Company has covenanted not to request the Trustee to apply any
Trust Moneys to the redemption of the Series AB Bonds prior to
September 1, 2004.
Pursuant to the provisions of Section 8.08 of the Indenture,
the Series AB Bonds are further subject to redemption, in whole or in
part, by the Trustee applying certain Trust Moneys which have been held
by the Trustee for a period of over two years. Any such redemption is
made pro rata among the series of Bonds then outstanding in the ratio of
principal amount. Redemption is at 100 percent of principal, plus any
premium due at the time of redemption and accrued interest to
redemption date.
The particular Series AB Bonds to be redeemed from time to
time shall be selected by the Trustee in the amount of $1,000 or an
integral multiple thereof and as nearly as practicable pro rata among
the registered holders of such Series AB Bonds according to the
respective principal amounts of such Bonds.
If this Bond or any portion thereof ($1,000 or a multiple) shall
be duly called for redemption as provided in the Indenture, this Bond or
such portion thereof shall (unless the Company shall default in the
payment of the redemption price) cease to bear interest from and after
the date fixed for redemption.
Upon any partial redemption of this Bond, this Bond may, at
the option of the registered holder hereof, be either (a) surrendered to
the Trustee in exchange for one or more new Bonds of this Series for the
principal amount of the unredeemed portion of this Bond or (b) submitted
to the Trustee for notation hereon by the Trustee of the payment of the
portion of the principal hereof so called for redemption.
If an Event of Default, as defined in the Indenture, shall
occur, the principal of this Bond may become or be declared due and
payable, in the manner and with the effect provided in the Indenture.
This Bond is transferable by the registered owner hereof in
person or by attorney authorized in writing, at said principal corporate
trust office of the Trustee, upon surrender for cancellation of this Bond
and on payment of charges, and upon any such transfer a new Bond or
Bonds, of the same series, for the same aggregate principal amount, will
be issued to the transferee in exchange herefor.
First Mortgage Bonds, Series AB, 8.30%, due September 1, 2024,
are issuable as fully registered Bonds without coupons of the denomina-
tions of $1,000 and any multiple of $1,000 which may be executed by the
Company and delivered to the Trustee for authentication and delivery.
The Series AB Bonds, upon surrender thereof to the Trustee at its
principal corporate trust office in the Borough of Manhattan, The
City of New York, are exchangeable for other Bonds of the same series
in such authorized denomination or denominations in the same aggregate
principal amount, as may be requested by the holders surrendering the
same.
The Company and the Trustee may deem and treat the person in
whose name this Bond is registered as the absolute owner hereof, for the
purpose of receiving payment of or on account of the principal hereof and
interest due hereon, and neither the Company nor the Trustee shall be
affected by any notice to the contrary. Interest payable herein shall
be paid to the person in whose name the Bond is registered at the close
of business on February 15 or August 15 (whether or not on a business day)
next preceding the interest payment date, except for defaulted interest and
unmatured accrued interest on the Series AB Bonds called for redemption
on a date other than an interest payment date.
No recourse shall be had for the payment of the principal of
or the interest on this Bond, or for any claim based hereon or otherwise
in respect hereof or of the Indenture or of any indenture supplemental
thereto, against any incorporator, stockholder, director or officer, as
such, past, present or future, of the Company or of any predecessor or
successor corporation, either directly or through the Company or any
predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or by any legal or equitable proceeding or
otherwise howsoever; all such liability being, by the acceptance
hereof and as a part of the consideration for the issuance hereof,
expressly waived and released by every holder hereof, as more fully
provided in the Indenture; provided, however, that nothing herein or
in the Indenture contained shall be taken to prevent recourse to and
the enforcement of the liability, if any, of any shareholder or any
stockholder or subscriber to capital stock upon or in respect of
shares of capital stock not fully paid up.
This Bond shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by
the Trustee, or its successor as Trustee, under the Indenture.
IN WITNESS WHEREOF, the Company has caused this Bond to be
signed in its name by its President or one of its Vice Presidents, and
its corporate seal to be impressed or imprinted hereon and attested by
its Secretary or one of its Assistant Secretaries.
Dated: BLACK HILLS CORPORATION,
By_______________________________
President
ATTEST:
____________________________________
Secretary
(FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION)
This is one of the Bonds, of the series designated therein,
described in the within mentioned Indenture.
CHEMICAL BANK, as Trustee,
By_______________________________
Authorized Officer
SECTION 1.03. The Series AB Bonds shall be redeemable at the
option of the Company, at any time and from time to time, in whole or in
part, on or after September 1, 2004, in the manner and upon the notice
provided in Article Ten of the Indenture, at the redemption prices set
forth in the form of Series AB Bonds provided in Section 1.02 of this
Supplemental Indenture, together in each case, with accrued interest to
the redemption date.
SECTION 1.04. Notwithstanding the provisions of Section 10.03
of the Indenture, in case of the redemption at any time of less than all
the outstanding Series AB Bonds, the particular Bonds or parts thereof to
be redeemed shall be selected by the Trustee from the outstanding
Series AB Bonds not previously called for redemption as nearly as
practicable pro rata among the registered holders of the Series AB Bonds
according to the respective principal amounts of such Bonds, provided
that the portions of the principal of Series AB Bonds at any time so
selected for redemption in part shall be equal to $1,000 or a multiple
thereof.
SECTION 1.05. Notwithstanding that Section 8.05 of the Indenture
authorizes the Company to request the Trustee to apply Trust Moneys
toward the redemption of Bonds to be selected by the Company, the
Company does hereby covenant that the Company will not request the
Trustee to apply any Trust Moneys to the redemption of the Series AB
Bonds prior to September 1, 2004.
ARTICLE TWO
Consent Bonds
The Holders, including any successor Holders, of the Series
AB Bonds to be issued under the terms of this Supplemental Indenture, by
becoming such Holders shall be deemed to have consented to the Twenty
Eighth Supplemental Indenture ("Proposed Supplement"), a copy of which is
attached as Exhibit A to this Supplemental Indenture. This provision
does hereby constitute a written consent of the Holders, including all
successor Holders, of the Series AB Bonds to the execution and adoption
of the Proposed Supplement under the provisions of Section 18.11 of the
Indenture, and such consent is received by the Trustee as a consent for
the Trustee to execute the Proposed Supplement in lieu of the holding of
a meeting of Bondholders pursuant to Article Eighteen of the Indenture.
ARTICLE THREE
Miscellaneous Provisions
SECTION 3.01. The Company covenants that so long as any Series
AB Bonds shall remain outstanding it will comply with the covenants
contained in Sections 9.06, 9.15, 9.16, 9.20 and 9.22 of the Indenture;
provided, if the Proposed Supplement as referenced in Article Two of this
Supplemental Indenture is adopted, this covenant would no longer apply
to Sections 9.06, 9.15 and 9.20, which would be deleted by the Proposed
Supplement, and would apply to Sections 9.16 and 9.22 as would be
amended by the Proposed Supplement.
SECTION 3.02. The aggregate principal amount of Bonds which,
immediately after the authentication and delivery of the Series AB Bonds
to be issued under this Supplemental Indenture, will be outstanding under
the provisions of, and secured by, the Indenture, as amended by this
Supplemental Indenture, will be $61,456,304, consisting of the Bonds of
Series O, T, U, X, Y, Z and AA hereinbefore set forth in the second
recital of this Supplemental Indenture and $45,000,000 aggregate
principal amount of Series AB Bonds hereby created.
SECTION 3.03. The Company, by the execution hereof, acknowledges
that a true copy of this Supplemental Indenture has been delivered to and
received by it.
SECTION 3.04. Except as amended by this Supplemental Indenture,
all the provisions, terms and conditions of the Indenture shall continue
in full force and effect.
SECTION 3.05. This Supplemental Indenture may be executed in
several counterparts, all or any of which may be treated for all purposes
as one original and shall constitute and be one and the same instrument.
IN WITNESS WHEREOF, BLACK HILLS CORPORATION, party hereto of
the first part, has caused this Supplemental Indenture to be executed on
its behalf by its Chairman of the Board or its President or one of its
Vice Presidents and its corporate seal to be hereto affixed and to be
attested by its Secretary or an Assistant Secretary, and CHEMICAL BANK,
party hereto of the second part, in evidence of its acceptance of the
trust hereby created, has caused this Supplemental Indenture to be
executed on its behalf by one of its Vice Presidents or Assistant
Vice Presidents and its corporate seal to be hereto affixed and to
be attested by a Trust Officer, all as of the day and year first
above written.
BLACK HILLS CORPORATION
[Corporate Seal] By /s/ Dale E. Clement
Senior Vice President - Finance
ATTEST:
/s/ Roxann R. Basham
Secretary
Signed, sealed and delivered by
BLACK HILLS CORPORATION in the
presence of:
/s/ Bonita A. Edwards
/s/ Jeanette M. Howe
CHEMICAL BANK
[Corporate Seal] By /s/ T. C. Knight
Assistant Vice President
ATTEST:
/s/ Andrew M. Deck
Trust Officer
Signed, sealed and delivered by
CHEMICAL BANK in the presence of:
/s/ Karen Mulroy
/s/ Francine Springer
STATE OF SOUTH DAKOTA )
) ss.:
COUNTY OF PENNINGTON )
On this 31st day of August, 1994, before me, Barbara Rask, the under-
signed officer, personally appeared Dale E. Clement, to me personally
known, who acknowledged himself to be, and being by me duly sworn, did
say that he is Senior Vice President - Finance of BLACK HILLS
CORPORATION, a corporation, and that the seal affixed to the foregoing
instrument is the corporate seal of said corporation and that said
instrument was executed by, and signed in the name of, the corporation,
by him, as such Senior Vice President - Finance and sealed on behalf
of the corporation by authority of its Board of Directors for the
purposes therein contained, and the said Dale E. Clement acknowledged
the same as the free act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
My Comm. Exp. July 25, 1999 /s/ Barbara Rask
[Notarial Seal] Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 30th day of August, 1994, before me, Emily Fayan, the under-
signed officer, personally appeared T. C. Knight, to me personally known,
who acknowledged himself to be, and being by me duly sworn, did say that
he is an Assistant Vice President of CHEMICAL BANK, a corporation, and
that the seal affixed to the foregoing instrument is the corporate seal
of said corporation and that said instrument was executed by, and signed
in the name of, the corporation, by him, as such Assistant Vice
President, and sealed on behalf of the corporation by authority of
its Board of Directors for the purposes therein contained, and the
said T. C. Knight acknowledged the same as the free act and deed of said
corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Emily Fayan
[Notarial Seal] Notary Public
<PAGE>
EXHIBIT A
to Twenty Ninth Supplemental Indenture
PROPOSED
--------
TWENTY EIGHTH SUPPLEMENTAL INDENTURE
TWENTY EIGHTH SUPPLEMENTAL INDENTURE, dated as of the ______ day
of _________________, 19__, between Black Hills Corporation (formerly
named and now operating its electric utility division as Black Hills
Power and Light Company), a corporation organized and existing under
the laws of the State of South Dakota (hereinafter called the
"Company"), party of the first part, and Chemical Bank, a corporation
organized and existing under the laws of the State of New York, as
Trustee under the Indenture hereinafter mentioned (hereinafter called
the "Trustee"), party of the second part.
WHEREAS, in order to secure an authorized issue of First Mortgage
Bonds of the Company, the Company has executed and delivered an Indenture
of Mortgage and Deed of Trust to Central Hanover Bank and Trust Company
(subsequently known as The Hanover Bank) as Trustee, dated September 1,
1941, hereinafter referred to as the "Original Indenture," and has also
executed and delivered to said Trustee and to Manufacturers Hanover Trust
Company (which on September 8, 1961 became the Trustee under the Original
Indenture, as theretofore supplemented and amended, by virtue of the
merger of said The Hanover Bank into Manufacturers Trust Company, under
said name Manufacturers Hanover Trust Company), as Trustee, various
Supplemental Indentures supplementing and/or modifying the Original
Indenture, respectively referred to herein and dated as follows:
First Supplemental Indenture July 15, 1945
Second Supplemental Indenture January 15, 1948
Third Supplemental Indenture January 15, 1949
Fourth Supplemental Indenture March 1, 1950
Fifth Supplemental Indenture March 1, 1952
Sixth Supplemental Indenture July 1, 1956
Seventh Supplemental Indenture May 1, 1957
Eighth Supplemental Indenture May 1, 1959
Ninth Supplemental Indenture April 1, 1960
Tenth Supplemental Indenture August 1, 1960
Eleventh Supplemental Indenture June 1, 1961
Twelfth Supplemental Indenture October 1, 1962
Thirteenth Supplemental Indenture May 1, 1963
Fourteenth Supplemental Indenture June 1, 1969
Fifteenth Supplemental Indenture June 15, 1974
Sixteenth Supplemental Indenture August 1, 1974
Seventeenth Supplemental Indenture July 15, 1975
Eighteenth Supplemental Indenture May 1, 1976
Nineteenth Supplemental Indenture February 15, 1977
Twentieth Supplemental Indenture April 1, 1977
Twenty First Supplemental Indenture June 1, 1977
Twenty Second Supplemental Indenture July 14, 1982
Twenty Third Supplemental Indenture September 1, 1986
Twenty Fourth Supplemental Indenture April 13, 1987
Twenty Fifth Supplemental Indenture June 15, 1988
Twenty Sixth Supplemental Indenture May 15, 1991
Twenty Seventh Supplemental Indenture June 1, 1991
Twenty Eighth Supplemental Indenture (when executed)
Twenty Ninth Supplemental Indenture September 1, 1994
[list any additional Supplements existing at the time of execution]
which, as supplemented and amended by said ___________________________
[the number of supplements at time of execution] Supplemental Indentures
is hereinafter referred to as the "Indenture"; and
WHEREAS, Chemical Bank is the successor by merger with Manufacturers
Hanover Trust Company and now is the Trustee under the Indenture; and
WHEREAS, pursuant to the provisions of the Indenture, First
Mortgage Bonds have been duly issued and are presently outstanding and
secured by the Indenture as follows:
Principal Amount
Series Outstanding
[List all Series and principal amount outstanding at time of execution.]
WHEREAS, the Company deems it advisable that the Indenture be
amended as herein provided; and
WHEREAS, the Company since May 1, 1994 has issued Bonds (referred to
herein as "Consent Bonds") under the Indenture pursuant to Supplemental
Indentures that each contained a consent provision providing that the
Holders and any successor Holders of such Bonds shall be deemed to have
consented to the execution and adoption of this Twenty Eighth Supple-
mental Indenture, and authorizing the Trustee to receive and accept such
provision as a consent to execute this supplement under the provisions
of Section 18.11 of the Indenture in lieu of the holding of a meeting
of Bondholders; and
WHEREAS, the total of (i) the principal amount of all Consent Bonds
outstanding and (ii) the principal amount of all Bonds outstanding issued
prior to May 1, 1994, the Holders of which have consented in writing to
the adoption of this Twenty Eighth Supplemental Indenture, constitutes
the consent of the requisite amount of Bonds outstanding under Section
18.11 of the Indenture to authorize the execution thereof; and
WHEREAS, the Company, in the exercise of the powers and authority
conferred upon and reserved to it under and by virtue of the provisions
of the Indenture, and particularly the provisions contained in Articles
Seventeen and Eighteen thereof, and pursuant to appropriate resolutions
of its Board of Directors has duly resolved and determined to make,
execute and deliver to the Trustee the Twenty Eighth Supplemental
Indenture in the form hereof for the purposes therein provided; and
WHEREAS, all conditions and requirements necessary to make this
Twenty Eighth Supplemental Indenture a valid, binding and legal
instrument in accordance with its terms have been done, performed and
fulfilled, and the execution and delivery hereof have been in all
respects duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That the Company, in consideration of the premises and 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 of other
good and valuable consideration, in order to amend certain provisions of
the Indenture, hereby further covenants and agrees to and with the
Trustee and its successors in the trust under the Indenture for the
benefit of all those who shall from time to time hold the Bonds as
follows:
ARTICLE ONE
Amendments to the Indenture
1.01. Deletion of Contracts, Leases and Franchises from the Lien of
the Indenture. The following granting clauses: Eleventh--Certain Contracts,
Twelfth--Leases and Thirteenth--Franchises are deleted from the Indenture and
any and all property interests described in the Eleventh, Twelfth and
Thirteenth Granting Clauses are hereby released from the Lien of the
Indenture. Subparagraphs (e) and (f) of Section 7.01 of Article Seven are
deleted from the Indenture.
1.02. Obligation to Maintain Business. Section 9.13 of Article Nine
of the Indenture is amended so as to read as follows:
SECTION 9.13. Except in the case of a merger, consolidation,
conveyance or transfer as in Article Fourteen provided, the Company will
at all times maintain its corporate existence and right to carry on
business, and will duly procure all renewals and extensions thereof, and
shall do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence and rights and franchises
of the Company; provided, however, that the Company shall not be required
to preserve any such right or franchise if, in the judgment of the Company,
the preservation thereof is no longer desirable in the conduct of the
business of the Company and the loss thereof would not adversely affect the
interests of the Bondholders in any material respect. The Company will
not enter into any merger or consolidation, or make any conveyance or lease
of all or substantially all of the Trust Estate as an entirety unless, in
connection therewith, the Company and/or the successor corporation and/or
the lessee, as the case may be, shall observe and comply with the terms
and conditions of Article Fourteen applicable to such transaction.
The first paragraph of Section 9.05 of Article Nine of the Indenture
is amended so as to read as follows:
SECTION 9.05. The Company covenants that the business of the Company
will be carried on and conducted in an efficient manner; all property,
plants, appliances and equipment of the Company useful in the carrying on
of its business will be kept in repair and maintained in good working order
and condition, and if worn or injured will be replaced by other property
suitable to the business of the Company and of at least equal value.
1.03. Excepted Property. The Sixteenth Granting Clause of the
Indenture is hereby amended so as to read as follows:
SIXTEENTH
EXCEPTED PROPERTY
There is, however, expressly excepted and excluded from the Lien of
this Indenture the following described property of the Company, herein
sometimes referred to as "Excepted Property":
A. all cash on hand, in banks or in other financial institutions
with which the Company maintains deposits, shares of stock, bonds, notes,
evidences of indebtedness and other securities not hereafter paid or
delivered to, deposited with, or held by, the Trustee hereunder or
required so to be;
B. all contracts, leases and other agreements of whatsoever kind
and nature (including pole attachment agreements and joint pole agreements),
contract rights, bills, notes and other instruments, accounts receivable,
claims, credits, demands, judgments, choses in action, patents, patent
licenses and other patent rights, patent applications, trade names,
trademarks and other general intangibles;
C. all permits, licenses, franchises (including municipal franchises
and other rights to use public ways) and rights (however characterized)
granted by any governmental entity with respect to air, water or other
types of pollution or pollution credits;
D. all motor vehicles, automobiles, buses, trucks, truck cranes,
tractors, trailers and similar vehicles, movable equipment, all rolling
stock, railcars, containers and other railroad equipment, all vessels,
boats, barges and other marine equipment, all airplanes, airplane engines
and flight equipment, and all components, spare parts, accessories,
supplies and fuel used or to be used in connection with any of the
foregoing;
E. all goods, wares, merchandise, equipment, spare parts and tools
held for sale or lease in the ordinary course of business or for use or
consumption in, or in the operation of, any properties of, or for the
benefit of, the Company, or held in advance of use thereof for maintenance,
replacement or fixed capital purposes; all fuel, materials and supplies and
other personal property which are consumable (otherwise than by ordinary
wear and tear) in their use in the electric utility business;
F. all office furniture and office equipment; all satellites and
other equipment and materials used or to be used in outer space; all
business machines; all communications equipment (including telephone
equipment); all computer equipment; all record production, storage and
retrieval equipment; and all components, spare parts, accessories, programs
(other than computer software) and supplies used or to be used in
connection with any of the foregoing;
G. all crops, timber, sand, gravel, rocks, earth, natural gas, coal,
ore, uranium, gas, oil and other minerals harvested, mined or extracted or
otherwise separated from the land, or lying or being upon, within or under
any properties of the Company, including the Trust Estate, all mineral
rights, leases and royalties and income therefrom, and all rights to
explore for minerals, and gas or oil wells or any lease or real estate
acquired for the purpose of obtaining gas or oil rights;
H. all electric energy, steam, water, ice and other products
generated, manufactured, produced, provided or purchased by the Company
for sale, transmission or distribution or used or to be used by the Company;
I. all leasehold interests and leasehold improvements;
J. all property, real, personal and mixed, which is:
(i) not specifically subjected or required to be subjected to
the Lien of this Indenture by any express provision hereof; and
(ii) not used or to be used in the electric utility business, or
in connection with the operation of any property specifically subjected or
required to be subjected to the Lien of this Indenture by the express
provisions hereof;
K. the Company's franchise to be a corporation; and
L. all books and records;
it being understood that the Company may, however, pursuant to the
Fifteenth Granting Clause of the Indenture, subject to the Lien of this
Indenture any Excepted Property, whereupon the same shall cease to be
Excepted Property.
1.04. Property Additions--Definition. Paragraph A of Section 4.01
of Article Four of the Indenture is hereby amended so as to read as follows:
A. The term "Property Additions" shall mean real estate
owned in fee, easements and rights of way in respect of real
estate, buildings, electric lines, reservoirs, structures,
machinery, meters, equipment and other tangible properties, real,
personal or mixed useful to the Company in the business
(hereinafter called "Electric Business") of generation,
transmission, distribution and/or sale of electricity, including
whole or undivided interests in any of such properties (such
properties being hereinafter sometimes referred to as "Electric
Properties") purchased, constructed or otherwise acquired by the
Company subsequent to October 31, 1941; and the term "Property
Additions" shall include
(1) property of the character above described acquired
by the Company by merger or consolidation as well as property
purchased or constructed by the Company;
(2) new plants and systems of the character above
described;
(3) all construction work in progress in the amount as
recorded on the books of account of the Company under generally
accepted accounting principles;
(4) property of the character above described
constructed or acquired to replace an item of property whose
retirement has been credited to plant account; and
(5) any Excepted Property and other property of the
Company that the Company elects to be included under the Lien of
the Indenture.
If the Company shall, as provided in Article Fourteen, consolidate with
or merge into or convey all or substantially all of the Trust Estate as
an entirety to any other corporation, and such successor corporation
shall execute a supplemental indenture of the character described in
Paragraph A of Section 14.02, all property of the character herein
described as Property Additions and owned by such successor corporation
at the time of such consolidation, merger or conveyance, or acquired by
it by such consolidation, merger or conveyance (excluding Bonded Property
acquired from the Company), shall be deemed to be Property Additions
acquired by such successor corporation at the date upon which it became
such successor corporation.
Among other properties not constituting Property Additions under
the foregoing provisions, the term "Property Additions" shall not be
deemed to include
(7) any item of property constructed or acquired to
replace a similar item of property whose retirement has not been
credited to plant account; or any property whose cost has been
charged, or is properly chargeable, to repairs or maintenance or
other operating expense account, or whose cost has not been
charged, or is not properly chargeable, to plant account;
(8) any Excepted Property unless the Company elects to
cause the Excepted Property to be subject to the Lien of the
Indenture; or
(9) going concern value or good will, or franchises or
governmental permits granted to or acquired by the Company,
separate and distinct from the property operated thereunder.
1.05. Additions Credit not Bonded Property. Clause (2) of Paragraph
K of Section 4.01 of Article Four is hereby amended so as read as follows:
(2) All Property Additions which have been made the basis
for the authentication and delivery of Bonds or the release of
any Bonded Property from the Lien of this Indenture or the
withdrawal of any Bonded Cash (or Unbonded Cash, if withdrawn
under Section 8.03) from the Trustee, but not including Additions
Credits within the meaning of Paragraph N of this Section.
1.06. Addition Credit--Definition. Paragraph N of Section 4.01 of
Article Four of the Indenture is hereby amended so as to read as follows:
N. "Additions Credit."
If and whenever any Net Bondable Additions or Gross Bondable
Additions are certified or made a part of an application to the
Trustee for any purpose under this Indenture, any amount is in
excess of that required for such purpose, the excess amount shall
constitute an Additions Credit and may be carried forward and
used as Property Additions for additional certifications and
applications under this Indenture. The Company shall have the
right, at any time and from time to time, to establish an
Additions Credit by delivering to the Trustee the Certificates,
Opinions and Other Instruments which would be required to be
delivered to the Trustee under Section 4.02 B, Clauses (1)
through (11), (13) and (14) and Sections 4.02, Paragraphs C, D
and E of this Indenture.
1.07. Certifiable Net Earnings. Paragraph O of Section 4.01 of
Article Four of the Indenture as amended by Section 3.04 of Article Three
of the Third Supplemental Indenture, and as amended by Section 1.03 of
Article One of the Nineteenth Supplemental Indenture is hereby further
amended so as to read as follows:
O. The "Certifiable Net Earnings" of the Company for any
particular period shall be computed and ascertained by deducting
from the total of the Gross Operating Revenues of the Company for
such period the following:
All operating expenses and other proper charges (other than
those charged to capital accounts or surplus) including (a) all
Federal, state and local taxes (other than taxes in respect of
income or profits and other taxes imposed on or measured by
income or profits); and (b) rentals, insurance, current repairs
and maintenance; but excluding (i) provisions for reserves for
renewals, replacements, depreciation, depletion or retirement of
property (or any expenditures therefor), or provisions for
amortization of property, (ii) expenses or provisions for
interest on any indebtedness of the Company, for the amortization
of debt discount, premium, expense or loss on reacquired debt,
for any maintenance and replacement, improvement or sinking fund
or other device for the retirement of any indebtedness, or for
other amortization, (iii) expenses or provisions for any
nonrecurring charge to income or to retained earnings of whatever
kind or nature (including without limitation the recognition of
expense or impairment due to the nonrecoverability of assets or
expense), whether or not recorded as a nonrecurring charge in the
Company's books of account, and (iv) provisions for any refund of
revenues previously collected or accrued by the Company subject
to possible refund.
The Gross Operating Revenues of the Company shall consist of
Gross Utility Operating Revenues of the Company, plus the Net Non-Operating
Income of the Company. The term "Gross Utility Operating Revenues" of the
Company shall mean the aggregate gross operating revenues derived from the
operation of the utility properties owned or leased by the Company. The
term "Net Non-Operating Income" of the Company shall mean net income
derived from but not necessarily limited to the following: (a) merchandising,
jobbing and contract work; (b) rental of non-utility properties; (c) interest
and dividend income including dividends from Subsidiaries; (d) allowance for
funds used during construction; and (e) other miscellaneous non-operating
income; provided, however, that profits or losses resulting from the sale,
abandonment or other disposition of capital assets or securities of the
Company and the Company's equity in the undistributed earnings of
Subsidiaries, shall not be taken into account in the calculation of Net
Non-Operating Income.
Subject to the foregoing provisions of this Section, all determinations
of earnings pursuant to this Indenture shall be made, and all balance sheets
and other financial statements to be delivered hereunder shall be prepared,
in accordance with the practice prescribed by any regulatory authority having
jurisdiction over the Company or other lawfully prescribed practice or, in
the absence of any practice prescribed by law, in accordance with sound
accounting practice and, where consistent with such practice and with the
foregoing provisions of this Section, on the same basis as that used in
preparing the financial statements included in the annual report of the
Company for the preceding fiscal year.
1.08. Property Additions Certificate--Amendment to Conform to Other
Provisions. Clauses (10) and (12) of Paragraph B of Section 4.02 of
Article Four of the Indenture is hereby amended so as to read as follows:
(10) That no part of the Property Additions described in
said Certificate is property the construction or acquisition of
which under the provisions of Section 4.01 is not permitted to be
made the basis of the authentication and delivery of Bonds under
this Article.
(12) Whether there is any unused Additions Credit which the
Company desires to use, in whole or in part, as a basis for the
authentication and delivery of the Bonds then applied for, and if
so, a statement of the entire amount which the Company so desires
to use, of each such unused Additions Credit.
1.09. Earnings-to-Interest Coverage Requirements. Paragraph F
of Section 4.02 of Article Four of the Indenture as previously amended
by Section 1.04 of the Nineteenth Supplemental Indenture is hereby
amended so as to read as follows:
F. A Net Earnings Certificate of the Company, complying
with the provisions of Section 1.02, dated not more than 45 days
prior to the application for the authentication and delivery of
such Bonds, certified by an Accountant, and setting forth:
(1) The amount of the Certifiable Net Earnings of the
Company, for a period of 12 consecutive calendar months within
the 18 calendar months immediately preceding the date on which
the application for the authentication and delivery of the Bonds
is made, and stating separately the Gross Utility Operating
Revenues and the Net Non-Operating Income and the operating
expenses of the Company and other deductions from such Gross
Utility Operating Revenues and Net Non-Operating Income pursuant
to Paragraph O of Section 4.01, with the principal subdivisions
thereof.
(2) The aggregate amount of the annual "Interest Charges on
Bonds and Prior Lien Debt" of the Company, which term shall mean
the annual interest charges on
(a) all Bonds outstanding hereunder at the date
of said Certificate, provided, however, that in the case of any
Bonds which shall at such time be pledged as security for any
indebtedness of the Company, the amount of the annual interest
charges on such pledged Bonds shall be deemed to be either the
amount of the annual interest charges on such indebtedness or the
amount of the annual interest charges on such pledged Bonds,
whichever shall be greater; and
(b) all Bonds the authentication and delivery of
which is applied for in such application and in any other pending
application; and
(c) all indebtedness secured by a lien upon the
Trust Estate, or any part thereof, prior to the lien of this
Indenture, other than a Prepaid Lien;
provided, however, that there shall be excluded from such
computation the annual interest charges on any Bonds or
indebtedness which is to be paid, redeemed or otherwise retired,
or provision for the retirement of which is to be made, so that
the same will cease to be outstanding prior to or concurrently
with the authentication and delivery of the Bonds then applied
for.
(3) That the amount of the Certifiable Net Earnings of
the Company set forth as provided by Clause (1) of this Paragraph
have been at least equal to two (2) times the aggregate amount of
the annual Interest Charges on Bonds and Prior Lien Debt of the
Company as provided by Clause (2) of this Paragraph.
(4) That such Certifiable Net Earnings have been
computed and ascertained as provided in Paragraph O of Section
4.01.
If the annual Interest Charges on Bonds and Prior Lien Debt
shall be increased after the date of the Earnings Certificate hereinabove
in this Paragraph described, and before the authentication and delivery
of the Bonds then applied for, the Company will file with the Trustee a
new Earnings Certificate showing the amount of said annual Interest
Charges on Bonds and Prior Liens as so increased--it being the intention
hereof that no Bonds shall be authenticated and delivered under the
provisions of this Article, unless the ratio provided for by Clause (3)
of this Paragraph shall have been established with respect to the
aggregate amount of the annual Interest Charges on Bonds and Prior Liens
of the Company as constituted at the time of the authentication and
delivery of the Bonds then applied for; but the Trustee shall, subject
to the provisions of Section 15.02, be entitled to assume, in the
absence of such new Earnings Certificate, that the aggregate amount of
the annual Interest Charges on Bonds and Prior Lien Debt of the Company, as
constituted at the time of the authentication and delivery of the Bonds
then applied for, are as stated in the Earnings Certificate filed with
the Trustee as aforesaid.
The Earnings Certificate provided for in this Paragraph shall be
certified by an Independent Public Accountant selected by the Company and
approved by the Trustee, in the exercise of reasonable care, if, but
only if, the aggregate principal amount of the Bonds to be authenticated
and delivered on the basis thereof and of other Bonds authenticated
and delivered since the commencement of the then current calendar year
(other than those with respect to which an Earnings Certificate is not
required or with respect to which an Earnings Certificate verified by an
Independent Public Accountant has previously been furnished) is 10% or
more of the aggregate principal amount of the Bonds at the time outstanding.
1.10. Summary Certificate. Paragraph G of Section 4.02 of Article
Four of the Indenture is hereby amended so as to read as follows:
G. A summary certificate and computation of the Company
complying with the provisions of Section 1.02, determining the
Net Bondable Additions in conformity with the provisions of this
Indenture as amended.
1.11. Amount of Property Additions Required for New Bonds. Section
4.03 of Article Four of the Indenture is hereby amended so as to read as
follows:
SECTION 4.03. Upon compliance with the provisions of
Section 4.02, the Trustee shall authenticate and deliver Bonds in
an aggregate principal amount up to, but not exceeding seventy
percent (70%) of the amount of Net Bondable Additions shown by
the summary certificate and computation filed pursuant to
Paragraph G of Section 4.02.
1.12. Additional Authorization to Issue Bonds. The Indenture is
amended by the addition of the following Section 4.04 to Article Four of
the Indenture.
SECTION 4.04. Notwithstanding anything in this Indenture to
the contrary, upon the Written Order of the Company, the Trustee
shall authenticate and deliver Bonds in an aggregate principal
amount up to, but not exceeding seventy percent (70%) of
A. the total amount of Property Additions which the
Company certifies to the Trustee as of May 1, 1994 and as of each
May 1 thereafter to meet the requirements of Section 9.06 until
such time that Section 9.06 is deleted by the execution of the
Twenty Eighth Supplemental Indenture; and
B. fourteen and two-tenths percent (14.2%) of the total
amount of all Property Additions certified to the Trustee and
used as Bondable Additions for the issuance of Bonds during the
period beginning May 1, 1994 and ending on the execution date of
the Twenty Eighth Supplemental Indenture.
The Company shall furnish the Trustee a Certificate of the Company
referencing and documenting the amount of Property Additions previously
certified and used as provided at Paragraphs A and B of this Section, a
summary certificate and computation determining the amount of Bonds that
may be issued under this Section 4.04 and an Opinion of Counsel as
required by Paragraph I of Section 4.02; provided that subparagraph (1)
thereunder shall refer to the basis of this Section 4.04 rather than Net
Bondable Additions and subparagraphs (2), (3), (4) and (5) are not to be
included in such opinion.
1.13. Release of Property from Indenture. Section 7.02 of Article
Seven of the Indenture is hereby amended so as to read as follows:
SECTION 7.02.
A. Definition of "Fair Value." For the purposes of this
Section 7.02, "Fair Value" when applied to property is its value
as determined without deduction for any Prior Liens upon such
property and without deduction to reflect that such property may
be of value only to the Company or another operator of the Trust
Estate as a whole, which value may be determined without physical
inspection by use of accounting and engineering records and other
data maintained by, or available to, the Company.
B. Release Based on Bond Ratio. Unless an Event of
Default shall have occurred and be continuing, upon receipt of a
Written Order of the Company requesting the release of any of the
Trust Estate pursuant to this Paragraph B, the Trustee shall
execute and deliver to the Company the documents and instruments
described in Paragraph B, releasing from the Lien of this
Indenture any of the Trust Estate if the Fair Value of all of the
Trust Estate (excluding the Trust Estate to be released but
including any Trust Estate to be acquired by the Company with the
proceeds of, or otherwise in connection with, such release)
stated on the Engineer's certificates delivered pursuant to
Clause 2 of Paragraph B and Clause (3) of Paragraph B, equals or
exceeds an amount equal to twenty-fourteenths (20/14) of the
aggregate principal amount of Bonds outstanding at the date of
such Written Order of the Company as stated on the Certificate of
the Company delivered pursuant to Clause (4) of Paragraph B, upon
receipt by the Trustee of:
(1) appropriate documents and instruments releasing
without recourse the interest of the Trustee in the Trust Estate
to be released, and describing in reasonable detail the Trust
Estate to be released;
(2) an Engineer's certificate, dated the date of such
Written Order of the Company, stating (i) that the signers of
such Engineer's certificate have examined the Certificate of the
Company delivered pursuant to Clause (4) of Paragraph B in
connection with such release, (ii) the Fair Value, in the opinion
of the signer of such Engineer's certificate, of (A) all of the
Trust Estate, and (B) the Trust Estate to be released, in each
case as of a date not more than 90 days prior to the date of such
Written Order of the Company, and (iii) that in the judgment of
such signers, such release (A) will not materially adversely
affect the Company's Electric Business, and (B) will not impair
the security under this Indenture in contravention of the
provisions hereof;
(3) in case any Property Additions are being acquired
by the Company with the proceeds of, or otherwise in connection
with, such release, an Engineer's certificate, dated the date of
such Written Order of the Company, as to the Fair Value, as of a
date not more than 90 days prior to the date of such Written
Order of the Company, of the Property Additions being so acquired
(and if within six months prior to the date of acquisition by the
Company of the Property Additions being so acquired, any property
included within such Property Additions had been used or operated
by others than the Company in a business similar to that in which
it has been or is to be used or operated by the Company, and the
Fair Value thereof to the Company, as set forth in such
Engineer's certificate, is not less than one percent (1%) of the
aggregate principal amount of Bonds then outstanding, such
certificate shall be an Independent Engineer's Certificate);
(4) a Certificate of the Company, dated the date of
such Written Order of the Company, stating (i) that the aggregate
principal amount of Bonds outstanding at the date of such Written
Order of the Company, and stating that the Fair Value of all of
the Trust Estate (excluding the Trust Estate to be released but
including any Property Additions to be acquired by the Company
with the proceeds of, or otherwise in connection with, such
release) stated on the Engineer's certificate filed pursuant to
Clause (2) of Paragraph B equals or exceeds an amount equal to
twenty-fourteenths (20/14) of such aggregate principal amount,
and (ii) that, to the knowledge of the signer, no Event of
Default has occurred and is continuing; and
(5) an Opinion of Counsel complying with the
provisions of Section 1.02 stating that the instruments which
have been or are delivered to the Trustee conform to the
requirements of this Indenture and constitute sufficient
authority under this Indenture for the Trustee to execute and
deliver the release requested.
C. Release up to a Limited Amount. If the Company is
unable, or elects not, to obtain, in accordance with the
preceding Paragraph B, the release from the Lien of this
Indenture of any of the Trust Estate, unless an Event of Default
shall have occurred and be continuing, upon receipt of a Written
Order of the Company requesting the release of any of the Trust
Estate pursuant to this Paragraph C, the Trustee shall execute
and deliver to the Company the documents and instruments
described in Clause (1) of Paragraph C releasing from the Lien of
this Indenture any of the Trust Estate if the Fair Value thereof,
as stated on the Engineer's certificate delivered pursuant to
Clause (2) of Paragraph C is less than one percent (1%) of the
aggregate principal amount of Bonds outstanding at the date of
such Written Order of the Company, provided that the aggregate
Fair Value of all Trust Estate released pursuant to this
Paragraph C, as stated on all Engineer's certificates filed
pursuant to this Paragraph C in any period of 12 consecutive
calendar months which includes the date of such Engineer's
certificate, shall not exceed three percent (3%) of the aggregate
principal amount of Bonds outstanding at the date of such Written
Order of the Company as stated in the Certificate of the Company
delivered pursuant to Clause (3) of Paragraph C, upon receipt by
the Trustee of:
(1) appropriate documents and instruments releasing
without recourse the interest of the Trustee in the Trust Estate
to be released, and describing in reasonable detail the Trust
Estate to be released;
(2) an Engineer's certificate, dated the date of such
Written Order of the Company, stating (i) that the signer of such
Engineer's certificate has examined the Certificate of the
Company delivered pursuant to Clause (2) of Paragraph C in
connection with such release, (ii) the Fair Value, in the opinion
of the signers of such Engineer's certificate, of such Trust
Estate to be released as of a date not more than 90 days prior to
the date of such Written Order of the Company, and (iii) that in
the judgment of such signers, such release (A) will not
materially adversely affect the Company's Electric Business and
(B) will not impair the security under this Indenture in
contravention of the provisions hereof;
(3) a Certificate of the Company, dated the date of
such Written Order of the Company, stating (i) the aggregate
principal amount of Bonds outstanding at the date of such Written
Order of the Company, (ii) that one percent (1%) of such
aggregate principal amount exceeds the Fair Value of the Trust
Estate for which such release is applied for, (iii) that three
percent (3%) of such aggregate principal amount exceeds the
aggregate Fair Value of all Trust Estate released from the Lien
of this Indenture pursuant to this Paragraph C, as shown by all
Engineer's certificates filed pursuant to Clause (2) of Paragraph
C in such period of 12 consecutive calendar months, and (iv)
that, to the knowledge of the signer, no Event of Default has
occurred and is continuing; and
(4) an Opinion of Counsel complying with the
provisions of Section 1.02 stating that the instruments which
have been or are delivered to the Trustee conform to the
requirements of this Indenture and constitute sufficient
authority under this Indenture for the Trustee to execute and
deliver the release requested.
D. Release by Deposit of Cash, Purchase Money Obligations
or Property Additions. If the Company is unable, or elects not,
to obtain, in accordance with Paragraphs B or C, the release from
the Lien of this Indenture of any of the Trust Estate, unless an
Event of Default shall have occurred and be continuing, upon
receipt and deposit of a Written Order of the Company requesting
the release of any of the Trust Estate pursuant to this Paragraph
D and those items at Clause (2) in this Paragraph D, the Trustee
shall execute and deliver to the Company the documents and
instruments described in Clause (1) of Paragraph D releasing from
the Lien of this Indenture the Trust Estate described in the
Written Order of the Company.
(1) appropriate documents and instruments releasing
without recourse the interests of the Trustee in the Trust Estate
to be released, and describing in reasonable detail the Trust
Estate to be released;
(2) Cash in an amount equal to the greater of the
following items (i) and (ii):
(i) the Fair Value of the property to be
released, or
(ii) the consideration received or to be received
by the Company therefor (valuing purchase money obligations at
their principal amount and property received in exchange at its
Fair Value as stated in said certificate),
provided, however, that in lieu of all or any part
of such cash, the Company shall have the right to deposit with or
deliver to the Trustee any of the following:
(a) Purchase Money Obligations secured by a
mortgage on the property to be released, or a portion thereof,
not exceeding in principal amount seventy percent (70%) of the
Fair Value (as certified as above set forth) of the property
covered by such purchase money mortgage, which purchase money
obligations and the mortgages securing the same, shall be duly
assigned to the Trustee and shall be received by the Trustee at
the principal amount thereof in lieu of cash; provided, however,
that the Trustee shall not accept any such purchase money
obligations in lieu of cash as provided in this Clause if thereby
the aggregate principal amount of all purchase money obligations
received by the Trustee pursuant to this Clause and at the time
held by the Trustee would equal or exceed 10 percent of the
principal amount of all Bonds then outstanding hereunder.
(b) A Certificate of the trustee or other
holder of a Prior Lien on all or any part of the property to be
released, stating that a specific amount of cash and/or a
specified principal amount of purchase money obligations of the
character described in subparagraph (a) of this Clause and
representing proceeds of the sale of such property, have been
deposited with such trustee or other holder pursuant to the
requirements of such Prior Lien, provided, however, that the
aggregate of the cash and principal amount of purchase money
obligations so certified at any one time shall in no event exceed
the principal amount of the Prior Lien Obligations outstanding
thereunder, less any amounts then held by the trustee or other
holder of such Prior Lien other than for the payment or
redemption of Prior Lien Obligations not deemed outstanding under
the provisions of Section 4.01; and such certificate shall be
received by the Trustee in lieu of cash equal to the cash and the
principal amount of the purchase money obligations so certified
to have been deposited with such trustee or other holder of such
Prior Lien.
(c) The Certificates, Opinions and Other
Instruments which the Company would be required to furnish to the
Trustee, upon an application for the authentication and delivery
of Bonds on the basis of Property Additions under Article Four,
but with the following variations and omissions of the
instruments specified in Section 4:02:
(i) There shall be an additional statement in
Clause (2) of the Property Additions Certificate, to the effect
that no part of the Property Additions therein described has in
any other previous or then pending application been made the
basis for the release of any Unbonded Property from the lien of
this Indenture or for the withdrawal of any Unbonded Cash from
the Trustee or from the trustee or other holder of a Prior Lien,
or to repair, replace, or restore insured Unbonded Property which
shall have been damaged or destroyed but the proceeds of the
insurance on which shall not have been required to be paid to the
Trustee pursuant to the provisions of Section 9.10;
(ii) It shall not be necessary for the Company to
deliver to the Trustee the Resolution required by Paragraph A,
the Retirements Certificate required by Paragraph E, the Net
Earnings Certificate required by Paragraph F, or any of the
certificates or parts of the Opinion of Counsel referred to in
Clauses (6) and (7) of Paragraph I of Section 4.02;
(iii) The Summary Certificate required by
Paragraph G of Section 4.02 shall show only Gross Bondable
Additions and may include any Additions Credit; and
(iv) If no part of the property to be released is
Bonded Property and such property or any part thereof is subject
to a Prior Lien, the Property Additions then so certified may be
subject to the same Prior Lien, and the Property Additions
Certificate required by Paragraph B of Section 4.02 and the
Opinion of Counsel required by Paragraph I of Section 4.02 may be
modified accordingly.
Such Certificates, Opinions and Other
Instruments shall be received by the Trustee in lieu of cash up
to the amount of the Gross Bondable Additions so certified to the
Trustee.
(3) An Opinion or Opinions of Counsel, complying with
the provisions of Section 1.02,
(a) stating that the instruments which have been
or are therewith delivered to the Trustee conform to the
requirements of this Indenture and constitute sufficient
authority under this Indenture for the Trustee to execute and
deliver the release requested, and that, upon the basis of the
cash, purchase money obligations, certificates, opinions and
other instruments delivered to the Trustee pursuant to Paragraph
D of this Section, the property so sold or disposed of or
contracted to be sold or disposed of may lawfully be released
from the lien of this Indenture pursuant to the provisions of
this Section;
(b) stating that the purchase money obligations,
if any, delivered to the Trustee or to the trustee or other
holder of a Prior Lien pursuant to subparagraph (a) of Clause (2)
of Paragraph D of this Section are valid obligations and are duly
secured by a valid purchase money mortgage constituting a direct
lien upon all the property to be released, or upon the portion
thereof described, free and clear of all prior liens, charges or
encumbrances, except any Prior Liens or other charges or
encumbrances prior to the lien of this Indenture which may have
existed on the property to be released immediately prior to such
release and that the assignment of any mortgage securing such
purchase money obligations is valid and in recordable form; and
(c) in case, pursuant to subparagraph (a) of
Clause (2) of Paragraph D of this Section, any cash or purchase
money obligations shall be certified to have been deposited with
the trustee or other holder of a Prior Lien, stating that the
property to be released, or a specified portion thereof, is or
immediately before such sale or disposition was subject to such
Prior Lien and that such deposit is required by such Prior Lien.
E. References to Other Sections of Article Seven. In
Section 7.04 of the Indenture, the reference to Paragraph B of
Section 7.02 and Clause (8) is deleted. In Section 7.05 of the
Indenture, the reference to the Resolution of the Board required
by Section 7.02 shall mean Written Order of the Company.
1.14. Deletion of Release up to $5,000. Section 7.08 of Article
Seven of the Indenture is hereby deleted from the Indenture. All
references to Section 7.08 in Article Seven of the Indenture are deleted
from the Indenture.
1.15. Amendment of Redemption of Bonds Because of Eminent Domain.
Section 8.08(b) of Article Eight of the Indenture is amended so as to read
as follows:
(b) In case of the sale and release of, or the taking by eminent
domain or of the purchase by a public authority (pursuant to any right
which it may then have to make such purchase) of the entire Trust Estate,
then all Trust Moneys representing the proceeds thereof received by the
Trustee shall be applied by the Trustee in accordance with the provisions
of Section 8.05 to the redemption of Bonds outstanding hereunder
(prorated between or among the several series, according to the principal
amount of Bonds outstanding of each series, if Bonds of more than one
series be outstanding) at such then applicable redemption prices, in such
manner and upon such notice (which shall be given by the Trustee for
and on behalf of the Company, and in the name of the Company) as may
be specified in respect of said Bonds of each series in this
Indenture or in any applicable indenture supplemental hereto.
1.16. Deletion of 15% Maintenance Requirement. Section 9.06 of
Article Nine of the Indenture is hereby deleted from the Indenture.
1.17. Increasing Insured Loss Retention. The third sentence of
Section 9.10 of Article Nine of the Indenture as previously amended by
Section 1.04 of the Fifteenth Supplemental Indenture is further amended
so as to read as follows:
All policies or other contracts for insurance upon the
Trust Estate shall provide that any loss in excess of Five
Million Dollars shall be payable to the Trustee as its interest
may appear, or to the trustee or other holder of any Prior Lien
if required by the terms thereof; and, if so requested in writing
by the Trustee, the Company will, subject to the provisions of
any Prior Lien, cause policies for such insurance to be delivered
to the Trustee.
The last paragraph of Section 9.10 of Article Nine of the Indenture
as previously amended by Section 1.05 of the Fifteenth Supplemental
Indenture is further amended by substituting the number $5,000,000 for
the number $1,000,000 therein.
1.18. Deletion of Limitations on Prior Liens. Section 9.15
of Article Nine of the Indenture is hereby deleted from the Indenture.
1.19. Restrictions on Dividends. Section 9.16 of Article Nine of
the Indenture as amended by Section 3.06 of the Third Supplemental
Indenture, Section 1.06 of the Fifteenth Supplemental Indenture and
Section 1.02 of the Twenty Second Supplemental Indenture is further
amended so as to read as follows:
Other than dividends payable solely in shares of its
common stock, the Company may declare and pay dividends in cash
or property on any shares of its common stock only out of the
unreserved and unrestricted retained earnings of the Company and
shall not make any such declaration or payment when the Company
is insolvent, or when the payment thereof would render the
Company insolvent.
1.20. Deletion of Restrictions on Investments in Affiliates and
Prohibiting Subsidiaries from Engaging in Electric Business. Section
9.20 of Article Nine of the Indenture is hereby deleted from the
Indenture.
1.21. Deletion of Restrictions on Investments in Subsidiaries.
Section 9.21 of Article Nine of the Indenture as amended by Section 1.07
of the Fifteenth Supplemental Indenture, Section 1.06 of the Eighteenth
Supplemental Indenture, Section 1.03 of the Twenty Second Supplemental
Indenture and Section 1.02 of the Twenty Fourth Supplemental Indenture
is hereby deleted from the Indenture.
1.22. Annual Compliance Certificate to Conform to the Amendments.
Section 9.22 of Article Nine of the Indenture is amended so as to read
as follows:
SECTION 9.22. On or before May 1 in each calendar
year, or on or before such other date in each calendar year as
the Company and the Trustee may agree upon, the Company will
deliver to the Trustee a Certificate of the Company, complying
with the provisions of Section 1.02, with respect to the
compliance by the Company with the covenants contained in
Sections 9.04, 9.05, 9.07, 9.08, 9.11, 9.12, and 9.13, and the
Company covenants and agrees to notify the Trustee immediately
upon the occurrence of any event which constitutes an Event of
Default (as defined in Section 12.01 hereof) or which may
constitute an Event of Default as the result of the giving of a
notice and/or expiration of a period of grace.
1.23. Noncertificated System for Registration and Restatement of
the Indenture. Section 17.01 of the Indenture is amended so as to add
thereto the following additional Paragraphs J and K:
J. To provide for the procedures required to permit
the Company to utilize, at its option, a noncertificated system
of registration for all, or any series of the Bonds.
K. To enter into a restatement of the Indenture
without material modifications and including all amendments
contained in supplements that remain in effect, with authority to
reorganize material, renumber and letter, include reference
headings and remove language no longer applicable and clarify any
ambiguities in the Indenture as amended.
ARTICLE TWO
Miscellaneous Provisions
2.01. Headings at the beginning of each Section are included for
convenience of reference, and such headings are not intended to be used
to interpret this Supplemental Indenture.
2.02. The Company, by the execution hereof, acknowledges that a
true copy of this Supplemental Indenture has been delivered to and
received by it.
2.03. Except as heretofore amended and as amended by this
Supplemental Indenture, all the provisions, terms and conditions of the
Original Indenture shall continue in full force and effect.
2.04. The recitals contained in this Supplemental Indenture shall
be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness.
2.05. This Supplemental Indenture may be executed in several
counterparts, all or any of which may be treated for all purposes as one
original and shall constitute and be one and the same instrument.
IN WITNESS WHEREOF, BLACK HILLS CORPORATION, party hereto of
the first part, has caused this Supplemental Indenture to be executed on
its behalf by its President or one of its Vice Presidents and its
corporate seal to be hereto affixed and to be attested by its Secretary
or an Assistant Secretary, and CHEMICAL BANK, party hereto of the second
part, in evidence of its acceptance of the trust hereby created, has
caused this Supplemental Indenture to be executed on its behalf by one of its
Vice Presidents or Assistant Vice Presidents and its corporate seal to be
hereto affixed and to be attested by its Secretary or an Assistant
Secretary or a Trust Officer duly authorized, all as of the day and
year first above written.
BLACK HILLS CORPORATION
(CORPORATE SEAL)
By_________________________________
Its____________________________
ATTEST:
____________________________
Signed, sealed and delivered by
BLACK HILLS CORPORATION
in the presence of
_____________________________
_____________________________
CHEMICAL BANK
By_________________________________
Its____________________________
ATTEST:
_____________________________
Its__________________________
Signed, sealed and delivered by
CHEMICAL BANK
in the presence of:
_____________________________
_____________________________
STATE OF SOUTH DAKOTA
COUNTY OF PENNINGTON
On the _____ day of ___________, 1994, before me,
________________________, the undersigned officer, personally appeared
______________________, to me personally known, who acknowledged h__self
to be, and being by me duly sworn, did say that _he is
_____________________ of BLACK HILLS CORPORATION, a corporation, and that
the seal affixed to the foregoing instrument is the corporate seal of
said corporation and that said instrument was executed by, and signed in
the name of, the corporation, by h__, as such __________________________ and
sealed in behalf of the corporation by authority of its Board of Directors
for the purposes therein contained, and the said ________________________
acknowledged the same as the free act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
___________________________________
NOTARY PUBLIC
(SEAL)
STATE OF NEW YORK
COUNTY OF NEW YORK
On this _______ day of ________________, 1994, before me,
____________________, the undersigned officer, personally appeared
____________________, to me personally known, who acknowledged himself to
be, and being by me duly sworn, did say that he is
______________________________ of CHEMICAL BANK, a corporation, and that
the seal affixed to the foregoing instrument is the corporate seal of
said corporation and that said instrument was executed by, and signed in
the name of, the corporation, by him, as such _____________________________
and sealed in behalf of the corporation by authority of its Board of
Directors for the purposes therein contained, and the said
______________________ acknowledged the same as the free act and deed of
said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
___________________________________
NOTARY PUBLIC
(SEAL)
<TABLE>
<CAPTION>
RATIO OF EARNINGS TO FIXED CHARGES EXHIBIT 12.01
(amounts in thousands)
Twelve Months
Ended 6/30/94
<S> <C>
Pre-Tax Income From
Continuing Operations $31,719
-------
Fixed Charges:
Interest Expense 8,765
Amortization of Debt Expense 118
Imputed Interest From
Capitalized Lease -
-------
8,883
-------
Total Earnings Plus Fixed Charges $40,602
=======
Total Fixed Charges $ 8,883
=======
Ratio of Earnings to Fixed Charges 4.6
</TABLE>
