<PAGE>
As Filed with the Securities and Exchange Commission on Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
------------
BLACK HILLS CORPORATION
(Exact name of Registrant as specified in its charter)
South Dakota 46-0111677
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
------------
625 Ninth Street, P. O. Box 1400, Rapid City, South Dakota 57709
(605) 348-1700
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------
Dale E. Clement
Senior Vice President--Finance
Black Hills Corporation
625 Ninth Street
Rapid City, South Dakota 57701
(605) 348-1700
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------
Copies to
David E. Morrill Howard G. Godwin, Jr.
Morrill Brown & Thomas Brown & Wood
625 Ninth Street, P. O. Box 8108 One World Trade Center
Rapid City, South Dakota 57709-8108 New York, N.Y. 10048-0557
------------
Approximate date of commencement of proposed sale to public:
From time to time after the effective date of the Registration Statement as
determined by market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
Proposed Proposed
Title of Each Class Maximum Maximum Amount of
of Securities Amount To Be Offering Price Aggregate Registration
To Be Registered Registered Per Unit (1) Offering Price (1) Fee
- ------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
First Mortgage Bonds.... $100,000,000 100% $100,000,000 $34,483
</TABLE>
================================================================================
(1) Estimated in accordance with Rule 457 solely for the purpose of
calculating the registration fee.
------------
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
================================================================================
<PAGE>
SUBJECT TO COMPLETION, DATED JUNE 28, 1994
PROSPECTUS
- ----------
$100,000,000
Black Hills Corporation
First Mortgage Bonds
-----------
Black Hills Corporation (the "Company") intends from time to time or at one
time, to issue up to $100,000,000 aggregate principal amount of its First
Mortgage Bonds in one or more series, on terms for each series to be determined
when the agreement to sell is made or at the time of sale, as the case may be.
For each issue of First Mortgage Bonds for which this Prospectus is being
delivered (the "Offered Bonds"), there will be an accompanying Prospectus
Supplement ("Prospectus Supplement") that will set forth the series
designation, aggregate principal amount of the issue, maturity, rates and times
of payment of interest, and redemption terms, if any, credit enhancement terms,
if any, and other special terms of each series of Offered Bonds offered
thereby, as well as any plans for application to list the Offered Bonds on a
stock exchange.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------
The Company may sell the Offered Bonds through underwriters, dealers or
agents, or directly to one or more purchasers. The applicable Prospectus
Supplement will set forth the names of underwriters, dealers or agents, if any,
any applicable commissions or discounts and the net proceeds to the Company
from any such sale. See "Plan of Distribution" herein.
-----------
The date of this Prospectus is June 28, 1994.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+Information contained herein is subject to completion or amendment. A +
+registration statement relating to these securities has been filed with the +
+Securities and Exchange Commission. These securities may not be sold nor may +
+offers to buy be accepted prior to the time the registration statement +
+becomes effective. This prospectus shall not constitute an offer to sell or +
+the solicitation of an offer to buy nor shall there be any sale of these +
+securities in any State in which such offer, solicitation or sale would be +
+unlawful prior to registration or qualification under the securities laws of +
+any such State. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended ("Exchange Act"), and in accordance therewith
files reports and other information with the Securities and Exchange Commission
("Commission"). Such reports and other information may be inspected and copied
at the offices of the Commission at 450 Fifth Street, N.W., Washington, DC
20549, Seven World Trade Center, New York, New York 10048 and 500 West Madison
Street, Chicago, Illinois 60661. Copies of this material can also be obtained
at prescribed rates from the Public Reference Section of the Commission at its
principal office at 450 Fifth Street, N.W., Washington, DC 20549. In addition,
the Common Stock of the Company is listed on The New York Stock Exchange, 20
Broad Street, New York, NY 10005, where reports and other information
concerning the Company may be inspected.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated by reference into this Prospectus.
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1993.
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1994.
3. The Company's current report on Form 8-K dated June 7, 1994.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering made by this Prospectus shall be deemed to be
incorporated by reference in this Prospectus and to be made a part hereof from
the date of filing of such documents. Any statement contained in a document
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a copy of this Prospectus has been
delivered, on the written or oral request of any such person, a copy of any or
all of the documents referred to above which have been or may be incorporated
in this Prospectus by reference, other than exhibits to such documents, unless
such exhibits are specifically incorporated by reference. Requests for such
copies should be directed to: Treasurer's Office, Black Hills Corporation, P.
O. Box 1400, Rapid City, SD 57709, or telephone (605) 348-1700.
THE COMPANY
The Company was incorporated under the laws of South Dakota in 1941 under the
name Black Hills Power and Light Company. In 1986 the Company changed its name
to Black Hills Corporation; however, the Company continues to operate its
investor-owned utility operations under the name of Black Hills Power and Light
Company. The Company's wholly-owned subsidiary, Wyodak Resources Development
Corp. ("Wyodak Resources"), a Delaware corporation, and Wyodak Resources'
wholly-owned subsidiary, Western Production Company, a Wyoming corporation, are
engaged in the business of coal mining and oil and gas production,
respectively.
2
<PAGE>
USE OF PROCEEDS
The proceeds from the sale of the Offered Bonds will be used to finance
capital expenditures, including the construction of Neil Simpson Unit #2, an 80
MW coal-fired electric generating plant now under construction adjacent to
Wyodak Resources' coal mine near Gillette, Wyoming, and to repay outstanding
short-term borrowings for such purposes and for general corporate purposes,
including the possible redemption, in whole or in part of the Company's
existing Bonds or other debt securities. The average interest rate of the
short-term indebtedness expected to be discharged with the proceeds is 4.8
percent as of May 31, 1994, and the maturity of such indebtedness is less than
12 months.
RATIO OF EARNINGS TO FIXED CHARGES
The Company's ratio of earnings to fixed charges for each of the periods
indicated is as follows:
<TABLE>
<CAPTION>
Year Ended December 31, 12 Months Ended Quarter Ended
---------------------------------- March 31, 1994 March 31, 1994
1989 1990 1991 1992 1993 --------------- --------------
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
5.1 5.0 4.6 4.6 4.6 4.6 4.8
</TABLE>
The ratio of earnings to fixed charges represents, on a pretax basis, the
number of times earnings cover fixed charges. Earnings consist of net income to
which has been added fixed charges and taxes based on income of the Company and
its subsidiaries. Fixed charges consist of interest charges and an interest
factor in rentals.
DESCRIPTION OF THE OFFERED BONDS
General
The Offered Bonds will be issued in one or more series as fully registered
bonds, without coupons, under an Indenture of Mortgage and Deed of Trust, dated
as of September 1, 1941, between the Company and Chemical Bank (the "Trustee,"
successor by merger to the original and succeeding Trustees). The Indenture of
Mortgage and Deed of Trust, as supplemented by twenty-seven Supplemental
Indentures, is herein referred to as the "Mortgage." The Mortgage and the
twenty-seven Supplemental Indentures are filed with the Securities and Exchange
Commission with either the Registration Statement of which this Prospectus is a
part or with other previously filed registration statements as referenced.
The summaries of the Mortgage herein contained do not purport to be complete
and are subject to the detailed provisions of the Mortgage. Capitalized terms
used herein which are not otherwise defined in this Prospectus shall have the
meanings ascribed thereto in the Mortgage. Whenever particular provisions of
the Mortgage or terms defined therein are referred to, such provisions or
definitions are incorporated by reference as a part of the statements made
herein, and such statements are qualified in their entirety by such reference.
References to article and section numbers in this description of the Offered
Bonds, unless otherwise indicated, are references to articles and section
numbers of the Mortgage.
Reference is made to the Prospectus Supplement relating to any particular
series of Offered Bonds and any supplement thereto for the following terms,
which will be determined at the time or times of sale: (i) the designation of
such series; (ii) the aggregate principal amount of the Offered Bonds of such
series; (iii) the price (expressed as a percentage of the principal amount) at
which such Offered Bonds will be issued; (iv) the date(s) on which such Offered
Bonds mature; (v) the rate(s) per annum at which such Offered Bonds will bear
interest; (vi) the date(s) from which such interest will accrue, the dates on
which such interest will be payable, the date(s) on which such payments will
commence, and the record dates for such payments; (vii) the terms, if any, upon
which such Offered Bonds will be redeemable, whether at the option of the
Company or pursuant to any mandatory redemption provisions, including without
limitation redemption prices and any provisions for call protection; and (viii)
any other special terms.
3
<PAGE>
Consent Bonds--Proposed Supplement
The Company has prepared and filed as an exhibit to the Registration
Statement of which this Prospectus is a part the Proposed Twenty Eighth
Supplemental Indenture ("Proposed Supplement"), undated and unsigned. If
adopted, the Proposed Supplement would amend the Mortgage in various respects
as summarized in this Prospectus. The summaries of the Proposed Supplement
herein do not purport to be complete and are subject to the detailed provisions
of the Proposed Supplement. Whenever particular provisions of the Proposed
Supplement or terms defined therein are referred to, such provisions or
definitions are incorporated by reference as a part of the statements made
herein, and such statements are qualified in their entirety by such reference.
The Proposed Supplement will not go into effect until the Company and the
Trustee execute the same. Under Article Eighteen of the Mortgage, the Trustee
does not have the authority to execute the Proposed Supplement without the
affirmative consent of the Holders of not less than 66 2/3 percent in principal
amount of the Bonds outstanding. The consent of the Bondholders is manifested
either at a meeting of Bondholders or, as provided by Section 18.11 of the
Mortgage, by written consent without the necessity of holding a meeting of the
Bondholders.
The Company has determined that the Supplemental Indenture for each series of
the Offered Bonds and all additional Bonds hereafter issued under the Mortgage
until such time that the Proposed Supplement has been adopted will include a
consent provision to be substantially worded as follows:
The Holders, including any successor Holders, of the Series 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 hereto as Exhibit A. This provision does hereby constitute a
written consent of the Holders, including all successor Holders, of the
Series 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.
At such time that the aggregate of (i) the principal amount of the Offered
Bonds outstanding and all additional Bonds hereafter issued ("Consent Bonds")
and (ii) the principal amount of all Bonds outstanding issued prior to said
date, the Holders of which have consented in writing to the adoption of the
Proposed Supplement, will equal or exceed 66 2/3 percent in principal amount of
all Bonds outstanding under the Mortgage at such time, the Trustee and the
Company will execute the Proposed Supplement causing the Twenty Eighth
Supplemental Indenture to be effective; provided, in case one or more but less
than all of the series of Bonds outstanding at such time are to be affected by
the Proposed Supplement, the Trustee may not execute the Proposed Supplement
until the Holders of 66 2/3 percent of each of the series affected have
approved the Proposed Supplement. Assuming the expected amount of Consent Bonds
are issued and certain existing Bonds are redeemed, the Company believes that
the Consent Bonds will constitute over 66 2/3 percent in principal of all
outstanding Bonds by March 1, 1998, even without any of the existing
Bondholders consenting to the Proposed Supplement. By that time, it is expected
that the Proposed Supplement will affect all outstanding issues of Bonds, and
the Company and Trustee will execute the Proposed Supplement, and the Mortgage
will be amended accordingly. If sufficient consents are received from existing
Bondholders, the Proposed Supplement will be executed and become effective at
an earlier date.
Throughout this Description of the Offered Bonds, references will be made to
the Mortgage as it exists at the date of this Prospectus and how the Mortgage
will be amended by the Proposed Supplement if adopted.
Payment of Bonds; Transfers; Exchanges
Except as may be provided in the applicable Prospectus Supplement, interest
on each Offered Bond payable on each interest payment date will be paid by
check mailed to the registered holder of such Offered Bond on the record date
related to such interest payment date; provided, interest payable at maturity
will be paid to the person to whom principal is paid.
4
<PAGE>
Principal of and premium, if any, and interest on the Offered Bonds due at
maturity will be payable upon presentation of the Bonds at the principal office
of the Trustee which has been designated by the Company as its office or agency
for such payment.
The transfer of Offered Bonds will be registered, and Bonds may be exchanged
for other Bonds, upon the surrender thereof at the principal office of the
Trustee which has been designated by the Company as its office or agency for
such purposes. Unless otherwise indicated in the applicable Prospectus
Supplement, no service charge will be made for any transfer or exchange other
than any tax or other governmental charge incident thereto.
Withdrawal of Trust Moneys or Retirement of Bonds with Trust Moneys
Under the Mortgage, cash (Trust Moneys) is deposited with the Trustee under
certain conditions, including the taking of property by governmental
authorities under the right of eminent domain, the deposit of cash for the
release of property, the deposit of cash in exchange for the issuance of new
Bonds, and the deposit of the proceeds of insurance. The Mortgage provides that
the Company, under certain conditions, may withdraw these Trust Moneys by
certifying Property Additions or by depositing previously issued Bonds.
(Sections 8.02, 8.03 and 8.04 of the Mortgage.) The Company may cause the
Trustee under certain conditions to apply Trust Moneys in payment of the
principal of Bonds upon redemption or upon tender. (Section 8.05 of the
Mortgage.) Trust Moneys from insurance proceeds may be withdrawn for the
purpose of repairing, restoring or replacing the property destroyed. (Section
8.06 of the Mortgage.) Trust Moneys may further be withdrawn for the purposes
of paying the Company's income tax obligations arising from the disposition of
properties or securities. (Section 8.07 of the Mortgage.)
Under the Mortgage, the Trustee is obligated to apply Trust Moneys for the
redemption of Bonds if the Trustee holds Trust Moneys in excess of $25,000,
exclusive of monies received from the proceeds of insurance, and the amount of
Trust Moneys on deposit with the Trustee exceeded such amount at all times
during the preceding two years. The Trustee is also obligated to apply Trust
Moneys derived from the sale and release of, or the taking by government
through eminent domain or purchase by a public authority of either the entire
Trust Estate or substantially all of the business of distributing electricity
in Rapid City, South Dakota toward the redemption of Bonds. The Trustee is
obligated to apply the Trust Moneys pro rata as between the several series of
Bonds then outstanding in the ratio of the respective aggregate principal
amounts in each such series outstanding at the time. Redemption shall be made
in such manner and upon such notice as may be specified in respect of the Bonds
of each series or the Mortgage or applicable supplements thereto. (Section
8.08(a), as amended by Section 1.03 of the Fifteenth Supplemental Indenture,
and Section 8.08(b) of the Mortgage.)
Section 1.15 of the Proposed Supplement would amend Section 8.08(b) of the
Mortgage to delete the provision requiring the proceeds of a public taking of
the Company's electric business at Rapid City, South Dakota to be applied
toward the redemption of Bonds.
Redemption of the Offered Bonds
Any terms for the optional or mandatory redemption of Offered Bonds will be
set forth in the Prospectus Supplement. Except as shall otherwise be provided
in the applicable Prospectus Supplement with respect to Offered Bonds
redeemable at the option of the Holder, Offered Bonds will be redeemable only
upon notice by mail not less than 30 days prior to the date fixed for
redemption, and, if less than all the Offered Bonds of a series are to be
redeemed, the particular Offered Bonds to be redeemed will be selected by such
method as shall be provided for in the particular series, or in the absence of
any such provision, by lot as the Trustee deems fair and appropriate. (Section
10.03 of the Mortgage.)
Security
The Offered Bonds, together with all other Bonds now or hereafter issued
under the Mortgage, will be secured by the Mortgage, which constitutes a first
mortgage lien on substantially all of the present properties
5
<PAGE>
of the Company (except as stated below), subject to Permitted Encumbrances as
defined at Section 4.01E of the Mortgage. Excepted Property (defined in the
Sixteenth Granting Clause of the Mortgage) is not subject to the lien of the
Mortgage and includes all cash and securities, all contracts (other than
contracts for the purchase or exchange of electric energy or for the making of
connections for exchange of energy or service, contracts and rights for the
crossing of railroad rights-of-way, and all joint pole contracts and rights,
agreements and understandings for the use of the property, facilities and
rights of way of other public utilities), rents, incomes or profits,
electricity, materials, supplies and merchandise offered for sale in the
ordinary course of business, fuel and other consumables; and motor vehicles;
provided, the Company may cause any of such Excepted Property to become subject
to the lien of the Mortgage. The Company's 20 percent interest in the 330 MW
coal-fired Wyodak Plant near Gillette, Wyoming is not now subject to the
Mortgage. (Article One of the Eighteenth Supplemental Indenture.) However, the
Company will certify its interest in the Wyodak Plant as Property Additions for
the first series of Bonds to be issued under this Prospectus and thus subject
such interest to the lien of the Mortgage.
The Proposed Supplement, if adopted, would delete the Eleventh, Twelfth and
Thirteenth Granting Clauses of the Mortgage and thereby remove from the lien of
the Indenture all contracts and agreements, all leases and all franchises.
(Section 1.01 of the Proposed Supplement.) The Proposed Supplement would also
amend the definition of Excepted Property in the Sixteenth Granting Clause of
the Mortgage to except certain additional property from the lien of the
Mortgage, including (i) all property not used in the electric utility business,
(ii) all permits, licenses, franchises and rights granted by governmental
entities, (iii) all movable equipment and parts used in connection therewith,
(iv) all office furniture and equipment, communications equipment and computer
equipment, (v) all minerals, crops and timber harvested or extracted from land
and (vi) all leasehold interests. (Section 1.03 of the Proposed Supplement.)
The Trustee has a lien for its compensation, expenses and indemnity on the
Trust Estate and the proceeds thereof prior to the lien of the Bonds. (Section
15.02(d) of the Mortgage.)
Issuance of Additional Bonds
Requirements for the issuance of additional bonds. The Mortgage provides for
no limitation on the amount of Bonds which may be issued thereunder. Additional
Bonds of any series may be issued from time to time on the basis of: (i) 60
percent of qualified Property Additions after adjustments to offset
retirements; (ii) 100 percent of previously issued Bonds retired except when
otherwise provided by the Supplemental Indenture authorizing the retired Bonds
and (iii) deposits of cash. With certain exceptions in the case of (ii) and
(iii) above, the issuance of Additional Bonds is subject to Certifiable Net
Earnings being at least equal to two times annual Interest Charges on Long-Term
Debt of the Company for a period of 12 consecutive months within the 15 months
prior to the certification. (Paragraph F of Section 4.02 as amended by Section
1.04 of the Nineteenth Supplemental Indenture.)
The Proposed Supplement would increase from 60 percent to 70 percent the
principal amount of qualified Property Additions that may be used for the
issuance of additional Bonds, would modify the test period for certification of
net earnings to 12 consecutive months out of the preceding 18 months prior to
certification, and would modify the definition of Property Additions and the
formula to determine the interest coverages. (Sections 1.04, 1.07, 1.09 and
1.12 of the Proposed Supplement.)
As of May 1, 1994 the Company had Unbonded Property Additions, including its
20 percent interest in the Wyodak Plant, of approximately $120,000,000 which
may be certified for the purpose of authorizing the issuance of additional
Bonds. These Unbonded Property Additions would allow the issuance of
$72,000,000 of additional Bonds under the present 60 percent requirement.
Taking into account the retroactive effect of Section 1.12 of the Proposed
Supplement explained in the following paragraph, the current Unbonded Property
Additions would allow the issuance of an additional $12,000,000 of Bonds after
the Proposed Supplement has been adopted.
Section 1.12 of the Proposed Supplement would add Section 4.04 to the
Mortgage that would in effect make retroactive to May 1, 1994 the deletion of
the 15 percent maintenance requirements as deleted by
6
<PAGE>
Section 1.16 of the Proposed Supplement (See Particular Covenants of the
Company--Maintenance Requirements under DESCRIPTION OF THE OFFERED BONDS) and
increase the ability to issue new Bonds based on Property Additions from 60
percent to 70 percent. After the Proposed Supplement has been adopted, the
Company will be permitted to certify for the purpose of issuing new Bonds 70
percent of (i) those Property Additions used to satisfy the 15 percent
maintenance requirements since May 1, 1994 and (ii) 14.285 percent of those
Property Additions used to issue new Bonds during the period commencing May 1,
1994 and ending on the date the Proposed Supplement is adopted.
Property Additions. Under the Mortgage, Property Additions that may be
certified for the issuance of additional Bonds include only Electric Properties
which are used in the generation, transmission, distribution and sale of
electricity in the Electric Business located in the State of South Dakota or
states contiguous to South Dakota, but do not include any of the Excepted
Property (See Security under DESCRIPTION OF OFFERED BONDS), any properties
other than Electric Properties, any going concern value, goodwill or franchises
or governmental permits granted separate and distinct from the property
operated thereunder, any office supplies or office equipment, or any Additions
in the process of construction other than those that are actually constructed
or erected. (Section 4.01 of the Mortgage.) The Proposed Supplement would
change this definition to allow the Company to use all of its real and personal
property wherever located, including Excepted Property that the Company elects
to be included under the lien of the Mortgage, to be certified as Property
Additions for the purpose of issuing additional Bonds. The Proposed Supplement
would also broaden the use of construction work in progress that may be used as
Property Additions to include all construction work in progress as recorded on
the books of account of the Company under generally accepted accounting
principles. (Section 1.04 of the Proposed Supplement.)
Earnings-to-Interest Coverage Requirements. To issue new Bonds through the
certification of Property Additions and as a condition to issue new Bonds in
exchange for retired Bonds with a lower interest rate than the new Bonds, the
Company's Certifiable Net Earnings must be equal to two times the Annual
Interest Charges on Long-Term Debt during a period of 12 consecutive months out
of the 15 months prior to the date of the application for the new Bonds.
(Subparagraph (3) of Paragraph F of Section 4.02 of the Mortgage as amended by
Section 1.04 of the Nineteenth Supplemental Indenture.) Certifiable Net
Earnings are determined by deducting from the total of the gross operating
revenues of the Company for the 12-month period all operating expenses and
provisions for depreciation and depletion, but excluding income taxes and
interest included in Interest Charges on Long-Term Debt. The depreciation,
obsolescence, depletion and property renewals and placements must be an amount
not less than the greater of the amount actually deducted on the books of the
Company in respect thereof or an amount equal to the excess of 15 percent of
Gross Utility Operating Revenues, less the cost of electric energy, over actual
expenditures for maintenance and repairs during the 12-month period. (Paragraph
O of Section 4.01 as last amended by Section 1.03 of Article One of the
Nineteenth Supplemental Indenture.)
Gross Operating Revenues include revenues from the operation of utility
property and Net Non-Operating Income includes other net income, including,
among other things, interest and designated income including dividends from
Subsidiaries and allowance for funds used during construction and other
miscellaneous non-operating income, but excluding profits or losses from the
sale of capital assets or securities. Interest Charges on Long-Term Debt
include interest on all outstanding Bonds under the Mortgage, the Bonds for
which the application is made, interest on any indebtedness secured by prior
lien to the Mortgage and interest from all other Funded Indebtedness.
(Paragraph F of Section 4.02 of the Mortgage as amended by Section 1.04 of the
Nineteenth Supplemental Indenture.) Funded Indebtedness generally includes all
indebtedness, whether secured or unsecured, having a final maturity more than
one year after the date of the creation thereof except that under certain
circumstances a Financing Lease Obligation would not be included. (Section 4.04
of the Seventeenth Supplemental Indenture as amended by Section 2.01 of the
Eighteenth Supplemental Indenture.)
The Proposed Supplement would retain the two times coverage ratio but would
adopt three substantive changes to the formula. Certifiable Net Earnings would
be determined without deducting depreciation, amortization, all interest and
all nonrecurring charges from earnings. Interest Charges on Long-Term Debt
7
<PAGE>
would become Interest Charges on Bonds and Prior Lien Debt so that Certifiable
Net Earnings would be required to be two times the aggregate amount of annual
interest charges on outstanding Bonds issued under the Mortgage, on Prior Lien
debt and on the new Bonds for which application is being made in order to meet
the coverage test after the adoption of the Proposed Supplement. The Proposed
Supplement also allows the 12-month test period to be chosen from the 18 months
prior to the date of the application for the new Bonds rather than 15 months.
(Section 1.09 of the Proposed Supplement.)
Release of Property from Mortgage
The Mortgage provides that the Company may from time to time sell or dispose
of property subject to the Mortgage which shall no longer be useful, necessary,
profitable or advantageous in the judicious management and maintenance of the
Trust Estate or in the conduct of the business of the Company or which is taken
or threatened to be taken by governmental authorities and to cause such
property to be released from the lien of the Mortgage. To accomplish the
release of any property above the value of $5,000, the Company is required to
deposit cash or purchase money obligations (any such purchase money obligations
may not exceed 70 percent of the Fair Value) received in exchange for the
property to be released or Property Additions acquired by the Company within 60
days prior to the date of the application for the release in an amount equal to
the Fair Value of the property being released. (Section 7.02 of the Mortgage.)
Section 1.13 of the Proposed Supplement is an extensive revision of Section
7.02 of the Mortgage. After its adoption, the Company will no longer have to
certify any reason for requesting property to be released from the lien of the
Mortgage. The Proposed Supplement would provide for three alternative ways for
the Company to obtain the release of property from the lien of the Mortgage.
Each way works independently of the other, and each is conditioned upon there
being no Event of Default.
First, the Proposed Supplement would permit property to be released from the
Mortgage if the Fair Value (as defined by the Proposed Supplement) of the
property to be released is less than 1 percent of the aggregate principal
amount of Bonds outstanding and all property released in any 12-month period is
less than 3 percent of the principal amount of Bonds outstanding. (amended
Section 7.02C of the Mortgage as set forth in Section 1.13 of the Proposed
Supplement.)
Second, any property may be released from the Mortgage under the Proposed
Supplement as long as the Fair Value of all of the Trust Estate remaining
equals or exceeds twenty-fourteenths ( 20/14) of the principal amount of Bonds
outstanding. (amended Section 7.02B of the Mortgage as set forth in Section
1.13 of the Proposed Supplement.)
Third, amended Section 7.02D as set forth in Section 1.13 of the Proposed
Supplement would substantially retain the present method to release property
from the Mortgage by posting Property Additions, cash or purchase money
obligations equal to the Fair Value of the property to be released; however,
the Proposed Supplement would remove the requirement that the Property
Additions must have been acquired 60 days prior to the date of the application
for the release. Accordingly, any unbonded Property Additions could be used for
the release of property from the Mortgage.
"Fair Value" in the Proposed Supplement is defined to allow the engineer
certifying Fair Value for the purpose of releasing property from the Mortgage
to determine such value without physical inspection by use of accounting and
engineering records and other data maintained by or available to the Company,
and the engineer must opine that the release will not materially adversely
affect the Electric Business and will not impair the security under the
Mortgage. (amended Section 7.02A and 7.02B(2) of the Mortgage as set forth in
Section 1.13 of the Proposed Supplement.)
8
<PAGE>
Particular Covenants of the Company
The Mortgage contains certain covenants, agreements and warranties of the
Company, generally described as follows:
General. Included in the covenants, agreements and warranties of the Company
in the Mortgage are the agreement to punctually pay the principal and interest
on the Bonds and the agreement not to extend the time for payment of any
interest on the Bonds. The Company also covenants that it has good title to the
property described in the Granting Clauses except Permitted Encumbrances, that
the Company will pay all taxes and assessments, that the Company will carry on
and conduct the business and keep the property in repair and maintained in good
working order and condition and replace worn-out or injured property, that the
Company will not permit any increase of any Prior Lien Obligation or default
therein, that the Company will keep the Mortgage properly recorded and the lien
perfected, that the Company will deposit all cash subject to being withdrawn as
required by the Indenture, that the Company will keep records of the accounts
of the Bonds outstanding, that the Company will keep books and records, and
that the Company will file with the Commission and deliver to the Trustee
certain reports and that the Company will certify compliance with the Mortgage
annually. (Sections 9.01 through 9.05, 9.07 through 9.09, 9.11 through 9.14,
9.17 through 9.19 and 9.22 of the Mortgage.) The covenants, agreements and
warranties referenced in this paragraph would not be modified by the Proposed
Supplement.
Maintenance Requirements. Section 9.06 of the Mortgage requires the Company
to spend each year 15 percent of its Gross Operating Revenues (not including
the purchase of electric energy) on maintenance and repair of its physical
property. To the extent the Company does not spend the 15 percent, the Company
must deposit cash or certify Property Additions. Section 1.16 of the Proposed
Supplement would delete this Section 9.06, and if the Proposed Supplement is
adopted, the Company will no longer be required to certify the amount expended
for repair and maintenance nor post cash or certified Property Additions for
any deficiency. Provisions will remain in the Mortgage obligating the Company
to maintain its business and to keep its property in repair and good working
order and condition. (Section 9.13 and the first paragraph of Section 9.05 of
the Mortgage as will be amended by Section 1.02 of the Proposed Supplement.)
Subsidiaries Prohibited from Engaging in Electric Business. Section 9.20 of
the Mortgage prevents the Company from owning a Subsidiary (where a company
owns over 50 percent of the voting stock) that is engaged in the business of
generating, transmitting, distributing or selling electricity. Section 1.20 of
the Proposed Supplement would remove this restriction, thereby allowing the
Company to establish or acquire a Subsidiary that is engaged in the Electric
Business.
Restrictions on Investments in Affiliates and Subsidiaries. Section 9.20 of
the Mortgage prohibits the Company from making any loans or advances to any
Affiliate (an entity not a Subsidiary but controlled by the Company) of the
Company. Section 9.21 as last amended by Section 1.02 of the Twenty Fourth
Supplemental Indenture prohibits the Company from making any investment in a
Subsidiary in excess of 20 percent of the Company's book equity. Sections 1.20
and 1.21 of the Proposed Supplement would delete Sections 9.20 and 9.21 of the
Mortgage and thereby remove these covenants and restrictions.
Dividend Restrictions. Section 9.16 of the Mortgage as amended by Section
3.06 of the Third Supplemental Indenture, Section 1.06 of the Fifteenth
Supplemental Indenture, Section 1.02 of the Twenty Second Supplemental
Indenture and Section 1.01 of the Twenty Fourth Supplemental Indenture limit
the amount of dividends the Company may declare to the amount that (i) the sum
of $175,000, plus the Net Earnings of the Company Available for Dividends
accrued subsequent to October 31, 1948 plus the cash proceeds from the sale of
stock subsequent to April 30, 1949 exceeds (ii) the sum of the aggregate of all
Stock Payments declared subsequent to October 31, 1948, plus the aggregate of
all cash dividends and payments to any sinking funds made subsequent to October
31, 1948 plus the aggregate of all investments or advances by the Company to
any Subsidiary. The current amount of retained earnings of the Company
available for dividend distributions as of March 31, 1994 is $111,167,000.
9
<PAGE>
The Proposed Supplement would delete the current dividend restriction and
substitute a provision that would permit dividends to be paid only out of
retained earnings and would prohibit payment of dividends if the Company is
insolvent or would become insolvent if the dividend were paid. (Section 1.19 of
Proposed Supplement.)
Insured Loss Retention. The third sentence of Section 9.10 of the Mortgage as
previously amended by Section 1.04 of the Fifteenth Supplemental Indenture
requires the Company to deposit with the Trustee the proceeds of any insurance
for casualty losses that exceed $1,000,000. The Proposed Supplement at Section
1.17 would amend this provision and increase the $1,000,000 to $5,000,000.
Limits on Prior Liens. Subject to minor exceptions, Section 9.15 of the
Mortgage prevents the Company from acquiring any property subject to a lien
prior to the Mortgage (Prior Liens) allowing only purchase price liens not
exceeding 70 percent of the Cost of such property or the Fair Value thereof at
the time of acquisition, whichever is less. The provision further limits the
amount of all Prior Lien Obligations to an aggregate amount not exceeding 15
percent of outstanding Bonds issued under the Mortgage. Section 1.18 of the
Proposed Supplement would delete Section 9.15, and thereby remove these
restrictions.
Modification
The rights of Bondholders may be modified with the consent of holders of 66
2/3 percent of the Bonds, or, if less than all series of Bonds are adversely
affected, the consent of the holders of 66 2/3 percent of the Bonds of each of
the outstanding series which are adversely affected by the modification. No
modification of the term or alteration shall postpone due dates for payment of
interest or principal, reduce the principal or the rate of interest payable,
reduce the percentage of the principal amount of Bonds required for any
modification or alteration of the Mortgage or modify, without the written
consent of the Trustee, the rights, duties or immunities of the Trustee. The
Proposed Supplement would not affect this provision. (Sections 18.07 and 18.11
of the Mortgage.)
Without any consent of the holders of the Offered Bonds and other
Bondholders, the Company and the Trustee may modify the Mortgage in the
following respects:
(a) To correct descriptions of property and to mortgage additional
properties;
(b) To add to the conditions, limitations and restrictions on the issuance of
Bonds;
(c) To add to the covenants and agreements of the Company or to surrender any
rights or powers conferred upon the Company;
(d) To provide a sinking, amortization, improvement or other analogous fund
for the benefit of any of the Bonds;
(e) To provide the terms and conditions of the exchange of Bonds;
(f) To provide that the principal of Bonds of any series may be converted at
the option of the holders into capital stock or other securities;
(g) To modify the Mortgage in any respect; provided that the modification
shall become effective only when there are no Bonds outstanding delivered
prior to the execution of the supplemental indenture providing the
modification; and
(h) For any purpose not inconsistent with the terms of the Mortgage and which
shall not impair the security of the same or for the purpose of curing
any ambiguity or of curing, correcting, or supplementing any defective or
inconsistent provisions contained therein or in any Supplemental
Indenture. (Section 17.01 of the Mortgage.)
The Proposed Supplement would, in addition to the above powers, authorize the
Trustee to (i) provide for the procedures to permit the Company to utilize, at
its option, a noncertificated system of registration for
10
<PAGE>
all or any series of the Bonds and (ii) 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 materials,
renumber and letter, include reference headings and remove language no longer
applicable and clarify any ambiguities in the Indenture as amended without any
approval of the Offered Bonds or other Bondholders. (Section 1.23 of the
Proposed Supplement.)
Events of Default and Notice
Events of Default are defined in the Mortgage as: default in payment of
principal; default for 30 days in payment of interest; default for 30 days in
violating the covenant on dividend restrictions; default for 60 days after
notice from the Trustee or 10 percent of the Bondholders in the observance of
any other covenant or condition; and certain events in bankruptcy, insolvency
or reorganization.
The Trustee or the holders of 25 percent of the Bonds may declare the
principal and interest due and payable on an Event of Default. (Section 12.01
of the Mortgage.) No Holder of Bonds may enforce the lien of the Mortgage
unless the holders of a majority in amount of the Bonds then outstanding have
requested the Trustee to act and offered it indemnity satisfactory to the
Trustee against the costs, expenses and liabilities to be incurred thereby and
the Trustee shall have failed to act. (Sections 12.04 and 15.02 of the
Mortgage.)
Evidence of Compliance with Mortgage Provisions
Compliance with the Mortgage provisions is evidenced by written statements of
Company officers or persons selected or paid by the Company. In certain cases,
opinions of counsel and certification of an engineer, accountant, appraiser or
other expert (who in some cases must be independent) must be furnished. The
Company must give the Trustee an annual statement as to whether or not the
Company has fulfilled its obligations under the Mortgage throughout the
preceding calendar year.
Defeasance
The Trustee shall satisfy and discharge the Mortgage upon the Company
furnishing the Trustee cash in trust at or before maturity sufficient to
discharge the entire indebtedness on the Bonds outstanding or to redeem the
Bonds, except that in lieu of cash the Company may deposit the Bonds
outstanding and certain other resolutions, certificates and opinions. (Article
Sixteen of the Mortgage.)
EXPERTS
The audited financial statements and supplemental financial statement
schedules included in the 1993 Annual Report of the Company on Form 10-K,
incorporated herein by reference, have been audited by Arthur Andersen & Co.,
Independent Public Accountants, as stated in their reports. The audited
financial statements and financial statement schedules referred to above have
been incorporated by reference herein in reliance upon the authority of said
firm as experts in giving said reports. Future financial statements of the
Company and the reports thereon of Arthur Andersen & Co. also will be
incorporated by reference in this prospectus in reliance upon the authority of
that firm as expert in giving those reports to the extent said firm has audited
those financial statements and consented to the use of their reports thereon.
LEGAL OPINIONS
The legality of the securities offered hereby will be passed upon for the
Company by Morrill Brown & Thomas, 625 Ninth Street, Rapid City, South Dakota
57709, general counsel of the Company, and for any underwriter, dealer or agent
by Brown & Wood, One World Trade Center, New York, New York 10048-0557. All
matters pertaining to local law will be passed upon by Morrill Brown & Thomas.
As of May 1, 1994 members and associates of the firm of Morrill Brown & Thomas
owned approximately 8,100 shares of the common stock of the Company.
PLAN OF DISTRIBUTION
The Company may sell the Offered Bonds in any of three ways: (i) through
underwriters or dealers; (ii) directly to a limited number of purchasers or to
a single purchaser; or (iii) through agents. The Prospectus
11
<PAGE>
Supplement with respect to the Offered Bonds sets forth the terms of the
offering of the Offered bonds, including the name or names of any underwriters,
dealers or agents, the purchase price of such Offered Bonds and the proceeds to
the Company from such sale, any underwriting discounts and other items
constituting underwriters' compensation, any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers. Any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
If underwriters are used in the sale, the Offered Bonds will be acquired by
the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of the sale. The
underwriter or underwriters with respect to a particular underwritten offering
of Offered bonds are named in the Prospectus Supplement relating to such
offering and, if an underwriting syndicate is used, the managing underwriter or
underwriters are set forth on the cover page of such Prospectus Supplement.
Unless otherwise set forth in the Prospectus Supplement, the obligations of the
underwriters to purchase the Offered Bonds will be subject to certain
conditions precedent, and the underwriters will be obligated to purchase all
such Offered Bonds if any are purchased.
Offered Bonds may be sold directly by the Company or through agents
designated by the Company from time to time. The Prospectus Supplement sets
forth the name of any agent involved in the offer or sale of the Offered Bonds
in respect of which the Prospectus Supplement is delivered as well as any
commissions payable by the Company to such agent. Unless otherwise indicated in
the Prospectus Supplement, any such agent will be acting on a best efforts
basis for the period of its appointment.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters or dealers to solicit offers by certain specified
institutions to purchase Offered Bonds from the Company at the public offering
price set forth in the Prospectus Supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the future.
Such contracts will be subject to those conditions set forth in the Prospectus
Supplement, and the Prospectus Supplement will set forth the commission payable
for solicitation of such contracts.
Subject to certain conditions, the Company may agree to indemnify the several
underwriters or agents and their controlling persons against certain
liabilities, including liabilities under the 1933 Act arising out of or based
upon, among other things, any untrue statement or alleged untrue statement of a
material fact contained in the registration statement, this Prospectus, a
Prospectus Supplement or the incorporated documents or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. See the Prospectus Supplement.
No dealer, salesman or other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus and any Prospectus Supplement in connection with the offer made by
this Prospectus or any Prospectus Supplement and, if given or made, such
information or representations must not be relied upon as having been
authorized by the Company or any other person, underwriter, dealer or agent.
Neither the delivery of this Prospectus or any Prospectus Supplement nor any
sale made hereunder shall under any circumstances create an implication that
there has been no change in the affairs of the Company since the date hereof or
thereof. This Prospectus or any Prospectus Supplement does not constitute an
offer or solicitation by anyone in any jurisdiction in which such offer or
solicitation is not authorized or in which the person making such offer or
solicitation is not qualified to do so or to anyone to whom it is unlawful to
make such offer or solicitation.
12
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Set forth below is an estimate of the approximate amount of fees and expenses
payable by the Registrant (other than underwriting discounts and commissions)
in connection with the issuance of the Shares:
<TABLE>
<CAPTION>
Description Amount
----------- --------
<S> <C>
Registration fee under the Securities Act of 1933................... $ 34,483
Accounting Services................................................. 30,000
Attorneys' fees..................................................... 50,000
Blue sky fees....................................................... 5,000
Fees of ratings agencies............................................ 51,000
Printing............................................................ 20,000
Trustees' fees...................................................... 15,000
Other miscellaneous costs........................................... 10,517
--------
Total............................................................... $216,000
</TABLE>
- --------
All items are estimated except the first.
Item 15. Indemnification of Directors and Officers
Sections 47-2-58.1 to 47-2-58.7 of the South Dakota Codified Laws permit
indemnification of officers and directors of domestic or foreign corporations
under certain circumstances and subject to certain limitations. Article V of
the Bylaws of the Company and separate indemnification contracts entered into
between the Company and each of its directors and officers authorize
indemnification of the Company's directors and officers consistent with the
provisions of South Dakota laws.
The Company has obtained insurance policies indemnifying the Company and the
Company's directors and officers against certain civil liabilities and related
expenses.
Item 16. Exhibits
<TABLE>
<C> <S> <C> <C>
1.01 Proposed form of Underwriting Agreement
4.04 Form of First Mortgage Bond
<CAPTION>
File or
Registration No. Exhibit
---------------- -------
<C> <S> <C> <C>
*4.05(a) Indenture of Mortgage and Deed of Trust, dated September Form A-2 B
1, 1941 2-4832
*4.05(b) First Supplemental Indenture, dated July 15, 1945 Form S-1 7-B
2-6576
*4.05(c) Second Supplemental Indenture, dated January 15, 1948 Form S-1 7-C
2-7695
*4.05(d) Third Supplemental Indenture, dated January 15, 1949 Form S-1 7-D
2-8157
4.05(e) Fourth Supplemental Indenture, dated March 1, 1950
*4.05(f) Fifth Supplemental Indenture, dated March 1, 1952 Form S-1 4-I
2-9433
*4.05(g) Sixth Supplemental Indenture, dated July 1, 1956 Form S-1 4-H
2-13140
*4.05(h) Seventh Supplemental Indenture, dated May 1, 1957 Form S-1 4-I
2-14829
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
File or
Registration No. Exhibit
---------------- -------
<S> <C> <C> <C>
*4.05(i) Eighth Supplemental Indenture, dated May 1, 1959 Form S-1 4-J
2-16756
*4.05(j) Ninth Supplemental Indenture, dated April 1, 1960 Form S-1 4-K
2-16756
*4.05(k) Tenth Supplemental Indenture, dated August 1, 1960 Form S-1 4-L
2-21024
*4.05(l) Eleventh Supplemental Indenture, dated June 1, 1961 Form S-1 4-M
2-21024
*4.05(m) Twelfth Supplemental Indenture, dated October 1, 1962 Form S-1 4-N
2-21024
*4.05(n) Thirteenth Supplemental Indenture, dated May 1, 1963 Form S-7 2(q)
2-57661
*4.05(o) Fourteenth Supplemental Indenture, dated June 1, 1969 Form S-7 2(r)
2-57661
*4.05(p) Fifteenth Supplemental Indenture, dated June 15, 1974 Form S-7 2(s)
2-57661
*4.05(q) Sixteenth Supplemental Indenture, dated August 1, 1974 Form S-7 2(t)
2-57661
*4.05(r) Seventeenth Supplemental Indenture, dated July 15, 1975 Form S-7 2(u)
2-57661
*4.05(s) Eighteenth Supplemental Indenture, dated May 1, 1976 Form S-7 2(v)
2-57661
4.05(t) Nineteenth Supplemental Indenture, dated February 15,
1977
4.05(u) Twentieth Supplemental Indenture, dated April 1, 1977
4.05(v) Twenty First Supplemental Indenture, dated June 1, 1977
*4.05(w) Twenty Second Supplemental Indenture, dated July 14, Form S-3 4(b)
1982 2-81643
4.05(x) Twenty Third Supplemental Indenture, dated September 1,
1986
4.05(y) Twenty Fourth Supplemental Indenture, dated April 13,
1987
4.05(z) Twenty Fifth Supplemental Indenture, dated June 15, 1988
*4.05(aa) Twenty Sixth Supplemental Indenture, dated May 15, 1991 Amendment #1 to 4(d)
Form S-8
33-15868
*4.05(ab) Twenty Seventh Supplemental Indenture, dated June 1, Amendment #1 to 4(e)
1991 Form S-8
33-15868
4.06 Form of Proposed Twenty Eighth Supplemental Indenture
5.01 Opinion of Morrill Brown & Thomas as to legality of Offered Bonds
12.01 Computation of Ratio of Earnings to Fixed Charges
23.01 Consent of Independent Public Accountants
23.02 Consent of Legal Counsel (included in Exhibit 5.01)
25.01 Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of Chemical Bank
</TABLE>
* Exhibits incorporated by reference.
II-2
<PAGE>
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to
reflect in the Prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration Statement; or (iii) to
include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to
such information in the Registration Statement; provided, however, that the
registrant need not file a post-effective amendment to include the information
required to be included by subsection (i) or (ii) if such information is
contained in periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act, which are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in
this Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions described under Item 15, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successfuldefense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Rapid City, State of South Dakota, on the 28th day
of June, 1994.
Black Hills Corporation
By /s/ Dale E. Clement
Dale E. Clement--Senior Vice
President--Finance
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Name Position Date
/s/ Daniel P. Landguth Director and Principal
Daniel P. Landguth Executive Officer
(Chairman, President, June 28, 1994
and Chief Executive)
/s/ Dale E. Clement Director and Principal
Dale E. Clement Financial Officer
(Senior Vice June 28, 1994
President--Finance)
/s/ Gary R. Fish Principal Accounting June 28, 1994
Gary R. Fish Officer
(Controller)
/s/ Glenn C. Barber Director June 28, 1994
Glenn C. Barber
/s/ Bruce B. Brundage Director June 28, 1994
Bruce B. Brundage
/s/ Michael B. Enzi Director June 28, 1994
Michael B. Enzi
/s/ John R. Howard Director June 28, 1994
John R. Howard
/s/ Everett E. Hoyt Director and Officer June 28, 1994
Everett E. Hoyt
(President and Chief
Operating Officer of
Black Hills Power)
/s/ Kay S. Jorgensen Director June 28, 1994
Kay S. Jorgensen
/s/ Charles T. Undlin Director June 28, 1994
Charles T. Undlin
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
File or
Exhibit Description Registration No. Exhibit Page
------- ----------- ---------------- ------- ----
<C> <S> <C> <C> <C>
1.01 Proposed form of Underwriting
Agreement
4.04 Form of First Mortgage Bond
*4.05(a) Indenture of Mortgage and Deed of Form A-2 B *
Trust, dated September 1, 1941 2-4832
*4.05(b) First Supplemental Indenture, dated Form S-1 7-B *
July 15, 1945 2-6576
*4.05(c) Second Supplemental Indenture, dated Form S-1 7-C *
January 15, 1948 2-7695
*4.05(d) Third Supplemental Indenture, dated Form S-1 7-D *
January 15, 1949 2-8157
4.05(e) Fourth Supplemental Indenture, dated
March 1, 1950
*4.05(f) Fifth Supplemental Indenture, dated Form S-1 4-I *
March 1, 1952 2-9433
*4.05(g) Sixth Supplemental Indenture, dated Form S-1 4-H *
July 1, 1956 2-13140
*4.05(h) Seventh Supplemental Indenture, dated Form S-1 4-I *
May 1, 1957 2-14829
*4.05(i) Eighth Supplemental Indenture, dated Form S-1 4-J *
May 1, 1959 2-16756
*4.05(j) Ninth Supplemental Indenture, dated Form S-1 4-K *
April 1, 1960 2-16756
*4.05(k) Tenth Supplemental Indenture, dated Form S-1 4-L *
August 1, 1960 2-21024
*4.05(l) Eleventh Supplemental Indenture, Form S-1 4-M *
dated June 1, 1961 2-21024
*4.05(m) Twelfth Supplemental Indenture, dated Form S-1 4-N *
October 1, 1962 2-21024
*4.05(n) Thirteenth Supplemental Indenture, Form S-7 2(q) *
dated May 1, 1963 2-57661
*4.05(o) Fourteenth Supplemental Indenture, Form S-7 2(r) *
dated June 1, 1969 2-57661
*4.05(p) Fifteenth Supplemental Indenture, Form S-7 2(s) *
dated June 15, 1974 2-57661
*4.05(q) Sixteenth Supplemental Indenture, Form S-7 2(t) *
dated August 1, 1974 2-57661
*4.05(r) Seventeenth Supplemental Indenture, Form S-7 2(u) *
dated July 15, 1975 2-57661
*4.05(s) Eighteenth Supplemental Indenture, Form S-7 2(v) *
dated May 1, 1976 2-57661
4.05(t) Nineteenth Supplemental Indenture,
dated February 15, 1977
4.05(u) Twentieth Supplemental Indenture,
dated April 1, 1977
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
File or
Exhibit Description Registration No. Exhibit Page
------- ----------- ---------------- ------- ----
<C> <S> <C> <C> <C>
4.05(v) Twenty First Supplemental Indenture,
dated June 1, 1977
*4.05(w) Twenty Second Supplemental Form S-3 4(b) *
Indenture, dated July 14, 1982 2-81643
4.05(x) Twenty Third Supplemental Indenture,
dated September 1, 1986
4.05(y) Twenty Fourth Supplemental
Indenture, dated April 13, 1987
4.05(z) Twenty Fifth Supplemental Indenture,
dated June 15, 1988
*4.05(aa) Twenty Sixth Supplemental Indenture, Amendment #1 4(d) *
dated May 15, 1991 to Form S-8
33-15868
*4.05(ab) Twenty Seventh Supplemental Amendment #1 4(e) *
Indenture, dated June 1, 1991 to Form S-8
33-15868
4.06 Form of Proposed Twenty Eighth Supplemental Indenture
5.01 Opinion of Morrill Brown & Thomas as to legality of Offered Bonds
12.01 Computation of Ratio of Earnings to Fixed Charges
23.01 Consent of Independent Public Accountants
23.02 Consent of Legal Counsel (included in Exhibit 5.01)
25.01 Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of Chemical Bank
</TABLE>
*Indicates incorporation by reference
<PAGE>
EXHIBIT 1.01
------------
BLACK HILLS CORPORATION
First Mortgage Bonds
UNDERWRITING AGREEMENT
----------------------
____________, 1994
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
PAINEWEBBER INCORPORATED
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower, World Financial Center
New York, New York 10281
Dear Sirs:
Black Hills Corporation, a South Dakota corporation (the "Company"),
proposes to issue and sell up to $100,000,000 aggregate principal amount of its
First Mortgage Bonds (the "Securities") in one or more offerings on terms
determined at the time of sale. The Securities will be issued under an
Indenture of Mortgage and Deed of Trust dated as of September 1, 1941, as
amended and supplemented by twenty seven supplemental indentures (together, the
"Indenture"), between the Company and Chemical Bank as trustee and success or by
merger to the original and succeeding trustees (the "Trustee"). Each issue of
Securities may vary as to aggregate principal amount, maturity, date, interest
rate or rates and timing of payments thereof, any redemption or sinking fund
requirements, and any other variable terms as the applicable supplemental
indenture (the "Supplemental Indenture") contemplates may be set forth in the
Securities issued from time to time. As used herein, "you" and "your", unless
the context otherwise requires, shall mean such of the parties, if any, to whom
this Agreement is addressed as are named in the applicable Terms Agreement or
any such additional parties as may be specifically named in a Terms Agreement as
Managing Underwriters with respect to Securities purchased pursuant to such
Terms Agreement.
<PAGE>
Offerings of Securities may be made through one or more of you or through
an underwriting syndicate managed by one or more of you. If the Company
determines to make an offering of Securities through one or more of you or
through an underwriting syndicate managed by one or more of you, the Company
will enter into an agreement (the "Terms Agreement") providing for the sale of
such Securities (the "Offered Securities") to, and the purchase and offering
thereof by, one or more of you and such other underwriters, if any, selected by
you as have authorized you to enter into such Terms Agreement on their behalf
(the "Underwriters", which term shall include you whether acting alone in the
sale of securities or as members of an underwriting syndicate). The Terms
Agreement relating to the Offered Securities shall specify the principal amount
of Offered Securities to be issued and their terms not otherwise specified in
the related Indenture, the names of the Underwriters participating in such
offering (subject to substitution as provided in Section 10 hereof), the
principal amount of Securities which each such Underwriter severally agrees to
purchase, the names of such of you or such other Underwriters acting as co-
managers, if any, in connection with such offering, the price at which the
Offered Securities are to be purchased by the Underwriters from the Company, the
initial public offering price and the time and place of delivery and payment.
The Terms Agreement, which shall be substantially in the form of Exhibit A
hereto, may take the form of an exchange of any standard form of written
telecommunication between you and the Company. Each offering of Securities
through one or more of you or through an underwriting syndicate managed by one
or more of you will be governed by this Agreement, as supplemented by the
applicable Terms Agreement, and this Agreement and such Terms Agreement shall
inure to the benefit of and be binding upon each Underwriter participating in
the offering of such Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-_____) relating to
the Securities, and the offering thereof from time to time in accordance with
Rule 415 under the Securities Act of 1933, as amended (the "1933 Act"), and has
filed such amendments thereto as may have been required to the date hereof.
Such registration statement has been declared effective by the Commission, and
the Indenture has been qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act"). Such registration statement and the prospectus
relating to the sale of Securities including all documents incorporated therein
by reference, as from time to time amended or supplemented pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), the 1933 Act or
otherwise, are referred to herein as the "Registration Statement" and the
"Prospectus", respectively; provided, however, that a supplement to the
Prospectus contemplated by Section 3(a) (a "Prospectus Supplement") shall be
deemed to have supplemented the Prospectus only with respect to the offering of
Securities to which it relates.
2
<PAGE>
SECTION 1. Representations and Warranties.
------------------------------
(a) The Company represents and warrants to each of you as of the date
hereof, and to each Underwriter named in a Terms Agreement as of the date
thereof (such latter date, which shall pertain only to the Securities being sold
pursuant to such Terms Agreement, being hereinafter referred to as the
"Representation Date") as follows:
(i) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and as of the applicable
Representation Date, complied in all material respects with the
requirements of the 1933 Act and the rules and regulations thereunder (the
"1933 Act Regulations") and the 1939 Act. The Registration Statement, at
the time it became effective and as of the applicable Representation Date,
did not, and will not, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus, at the time
the Registration Statement became effective and as of the applicable
Representation Date, did not, and will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or omissions
from the Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through you expressly for use in the Registration Statement or
the Prospectus or to that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification under the 1939
Act (Form T-1), of the Trustee.
(ii) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission under the 1934 Act (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at the time the
Registration Statement and any amendments thereto become effective, will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(iii) The accountants who certified the financial statements included
in the Registration Statement are
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<PAGE>
independent public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iv) The financial statements of the Company and its consolidated
subsidiaries incorporated by reference in the Registration Statement and
the Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the results of
their operations and cash flows for the periods specified; except as
otherwise stated in the Registration Statement, said financial statements
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis; and the supporting schedules
included in the Registration Statement present fairly the information
required to be stated therein.
(v) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, (B) there have
been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered as
one enterprise, and (C) except for regular quarterly dividends on the
Company's Common Stock, par value $1.00 per share (the "Common Stock"),
there has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock.
(vi) The Company is a corporation in good standing, duly organized and
validly existing under the laws of the State of South Dakota with corporate
power and authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement; the Company is
duly qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of the States of Wyoming, Montana and
Nebraska; and the Company's business is such that it is not required to
qualify as a foreign corporation in any other jurisdiction, except for any
failures to be so qualified which, taken as a whole, are not material to
the Company and its subsidiaries considered as one enterprise.
(vii) Each subsidiary of the Company is a corporation in good standing,
duly organized and validly existing under the laws of its jurisdiction of
incorporation, has due corporate authority to carry on the business in
which it is engaged and to own and operate the properties used by it in
such business, as described in the Registration Statement; has
4
<PAGE>
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which the failure to so qualify would have a material adverse effect on
the operations of the Company and its subsidiaries considered as one
enterprise or result in a material liability to the Company and its
subsidiaries considered as one enterprise; and all of the issued and
outstanding capital stock of each such subsidiary has been duly authorized
and validly issued, is fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of any mortgage,
pledge, lien, encumbrance, claim or equitable right.
(viii) The Securities have been duly authorized for issuance and sale
pursuant to this Agreement (or will have been so authorized prior to each
issuance of Securities) and, when issued, authenticated and delivered
pursuant to the provisions of this Agreement and of the Indenture against
payment of the consideration therefor in accordance with this Agreement,
the Securities will be valid and legally binding obligations of the Company
enforceable in accordance with their terms, except as enforcement thereof
may be limited by bankruptcy, insolvency or other laws relating to or
affecting enforcement of creditors' rights or by general equity principles,
and will be entitled to the benefits of the Indenture; and the Indenture
conforms in all material respects to all statements relating thereto
contained in the Prospectus.
(ix) Neither the Company nor any of its subsidiaries is in violation
of its charter or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
material contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which it is a party or by which it or its property may
be bound, or to which any of the property or assets of the Company or any
of its subsidiaries is subject; and the execution, delivery and performance
of this Agreement, each Terms Agreement and the applicable Supplemental
Indenture by the Company, and the consummation of the transactions
contemplated herein and therein have been duly authorized by all necessary
corporate action and will not conflict with or constitute a breach of, or
default under, or, other than the lien of the Indenture, result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its subsidiaries pursuant to, any
material contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of its subsidiaries is a party
or by which it or any of them may be bound, or to which any of the property
or assets of the Company or any of its subsidiaries is subject, nor will
such action result in any violation of the provisions of the charter or
by-laws of
5
<PAGE>
the Company or any applicable law, administrative regulation or
administrative or court decree.
(x) There is no mortgage, lien, pledge or encumbrance prior to the
lien of the Indenture on any of the Trust Estate, as defined in the
Indenture, except the lien of the Indenture and Permitted Encumbrances,
as defined in Section 4.01 of the Indenture.
(xi) No material labor dispute with employees of the Company or any of
its subsidiaries exists or, to the knowledge of the Company, is imminent.
(xii) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against or affecting the Company or
any of its subsidiaries, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which might
result in any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, or which
might materially and adversely affect the properties or assets thereof or
which might materially and adversely affect the consummation of this
Agreement or any Terms Agreement; all pending legal or governmental
proceedings to which the Company or any subsidiary of the Company is a
party or of which any of their property is the subject which are not
described in the Registration Statement, including ordinary routine
litigation incidental to the business, are, considered in the aggregate,
not material; and there are no contracts or documents of the Company or any
of its subsidiaries which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act Regulations which
have not been so filed.
(xiii) The Public Utility Commission of South Dakota (the "South Dakota
Commission") and the Public Service Commission of Wyoming (the "Wyoming
Commission") have duly authorized the issuance and sale of the Securities
on terms consistent with this Agreement, and no other authorization,
approval or consent of any court or governmental authority or agency is
necessary in connection with the offering, issuance or sale of the
Securities hereunder, except such as may be required under the 1933 Act or
the 1933 Act Regulations, the 1939 Act or state securities laws.
(xiv) The Company and its subsidiaries have statutory authority,
franchises, licenses, rights of way, easements, and consents, free from
unduly burdensome restrictions and adequate for the conduct of the business
in which each of them is engaged.
6
<PAGE>
(xv) Except as otherwise stated in the Registration Statement and the
Prospectus, the Company and each of its subsidiaries has good and valid
title, free and clear of all liens and encumbrances, to substantially all
of their permanent fixed properties owned respectively by them.
(xvi) The Indenture (a) specifically or by general reference describes
all generating stations, substations, electrical transmission systems and
electrical distribution systems owned by the Company, and all franchises,
permits, licenses, power purchase agreements, and material leases to which
the Company is a party, (b) specifically describes all parcels of land
owned by the Company except parcels of land which are immaterial to the
operation of the business of the Company and whose value does not exceed
$100,000 in the aggregate, and parcels of land disposed of or released from
the lien of the Indenture in accordance with the terms of the Indenture,
and (c) conveys to the Trustee all of the real and personal property owned
by the Company, except property expressly excepted from the lien of the
Indenture.
(xvii) All Federal, state and other tax returns of the Company and its
subsidiaries required by law to be filed have been duly filed. All
Federal, state and local taxes upon the Company and its subsidiaries or
upon any of their properties or assets which are due and payable have been
paid. Federal income tax returns of the Company and its subsidiaries for
all years through the year ended December 31, 1989, have been audited by
the Internal Revenue Service, and the results are fully reflected in the
financial statements included or incorporated by reference in the
Registration Statement. The provision on the books of the Company and its
subsidiaries for Federal income taxes for all fiscal years since 1989 are
reasonably adequate and the Company does not anticipate substantial
assessments for such years in addition to the amounts reserved therefor.
(xviii) Except as disclosed in the Registration Statement
(specifically including the section "Environmental Regulation" in the
Company's Annual Report on Form 10-K for the year ended December 31, 1993),
the Company is not aware of any material violation by the Company or any of
its subsidiaries of any Environmental Law, or of any material liability or
potential material liability on the part of the Company or any of its
subsidiaries resulting from the presence, use, release, threatened release,
emission, disposal, pumping, discharge, generation or processing of Waste
Materials. "Waste Materials" means (a) any substance, material or waste
defined, used or listed as a "hazardous waste," "hazardous substance,"
"toxic substance," or other similar terms as defined or used in any
Environmental Law, as such Environmental Law may from time to time be
amended; and (b) any petroleum products, asbestos, lead-based paint,
polychlorinated biphenyls, flammable explosives or
7
<PAGE>
radioactive materials. "Environmental Law" means any federal, state or
local statute, regulation, judgment, order, or authorization relating to
emissions, discharges, releases or threatened releases of Waste Materials
into ambient air, surface water, ground water, publicly owned treatment
works, septic systems or land or otherwise relating to the pollution or
protection of health or the environment.
(xix) The Company has received all governmental regulatory approvals
and permits required to authorize the Company to construct the 80 MW coal-
fired electric generating plant referred to in the Registration Statement
and the Prospectus as Neil Simpson Unit #2.
(xx) No person or corporation, which is a "holding company" or a
"subsidiary of a holding company", within the meaning of such terms as
defined in the Public Utility Holding Company Act of 1935, directly or
indirectly owns, controls or holds with power to vote 10% or more of the
outstanding voting securities of the Company; and the Company is presently
exempt from the provision of the Public Utility Holding Company Act of 1935
which would require it to register thereunder.
(xxi) This Agreement has been, and, at each Representation Date, the
applicable Terms Agreement will have been, duly executed and delivered by
the Company.
Any certificate signed by any executive officer of the Company and
delivered to you or to counsel for the Underwriters in connection with an
offering of Securities shall be deemed a representation and warranty by the
Company to each Underwriter participating in each offering as to the matters
covered thereby.
SECTION 2. Purchase and Sale. (a) The several commitments of the
-----------------
Underwriters to purchase Offered Securities pursuant to any Terms Agreement
shall be deemed to have been made on the basis of the representations and
warranties herein contained and shall be subject to the terms and conditions
herein set forth.
(b) Payment of the purchase price for, and delivery of, any Offered
Securities to be purchased by the Underwriters shall be made at the office of
Brown & Wood, One World Trade Center, New York, New York 10048, or at such other
place as shall be agreed upon by you and the Company, at 10:00 A.M., New York
City time, on the fifth business day (unless postponed in accordance with the
provisions of Section 10) following the date of the applicable Terms Agreement
or at such other time as shall be agreed upon by you and the Company (each such
time and date being referred to as a "Closing Time"). Unless otherwise
specified in the applicable Terms Agreement, payment shall be made to the
Company by certified or official bank check or checks in New York Clearing House
or similar next day funds payable to the order of
8
<PAGE>
the Company against delivery to you for the respective accounts of the
Underwriters of the Securities to be purchased by them. Such Securities shall
be in such denominations and registered in such names as you may request in
writing at least two business days prior to the applicable Closing Time. Such
Securities, which may be a temporary form, will be made available for
examination and packaging by you on or before the first business day prior to
Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with each of
------------------------
you, and with each Underwriter participating in any applicable offering of
Securities, as follows:
(a) Promptly following the execution of each Terms Agreement, the
Company will prepare a Prospectus Supplement setting forth the principal
amount of Securities covered thereby, the terms of such Securities not
otherwise specified in the Prospectus, the names of the Underwriters
participating in the offering and the principal amount of Securities which
each severally has agreed to purchase, the names of the Underwriters acting
as co-managers in connection with the offering, the price at which the
Securities are to be purchased by the Underwriters from the Company, the
initial public offering price, the selling concession and reallowances, if
any, and such other information as you and the Company deem appropriate in
connection with the offering of the Securities. The Company will promptly
transmit copies of the Prospectus Supplement to the Commission for filing
pursuant to Rule 424 of the 1933 Act Regulations and will furnish to the
Underwriters named therein as many copies of the Prospectus and such
Prospectus Supplement as you shall reasonably request.
(b) The Company will notify each of you immediately, and confirm the
notice in writing, (i) of the effectiveness of the Registration Statement
and any amendment thereto (including any post-effective amendment), (ii) of
the mailing or the delivery or EDGAR transmission to the Commission for
filing of any supplement to the Prospectus or any document to be filed
pursuant to the 1934 Act, (iii) of the receipt of any comments from the
Commission, (iv) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or
for additional information, and (v) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or the initiation of any proceedings for that purpose. The Company will
make every reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(c) The Company will give you notice of its intention to file or
prepare any amendment to the Registration Statement (including any post-
effective amendment) or any
9
<PAGE>
amendment or supplement to the Prospectus, whether pursuant to the 1934
Act, the 1933 Act or otherwise, and will furnish you with copies of any
such amendment or supplement or other document proposed to be filed a
reasonable amount of time prior to such proposed filing and will not file
any such amendment or supplement or other document or use any such
prospectus to which you or counsel shall object.
(d) The Company will deliver to you as many signed copies of the
registration statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein)
as you may reasonably request and will also deliver to each of you a
conformed copy of the Registration Statement and of each amendment thereto
for each of the Underwriters.
(e) If at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Securities any event shall
occur or condition exist as a result of which it is necessary, in the
opinion of your counsel, to further amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser or if it shall be
necessary, in the opinion of either such counsel, at any such time to amend
or supplement the Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations,
the Company will forthwith amend or supplement the Prospectus or make
appropriate filings under the 1934 Act (in form and substance satisfactory
to your counsel) so that, as so amended or supplemented, the Prospectus
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein in the
light of the circumstances existing at the time it is delivered to a
purchaser, not misleading, and the Company will furnish to you a reasonable
number of copies of such amendment or supplement or 1934 Act filing.
(f) The Company will endeavor, in cooperation with you, to qualify
the Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions of the United States as you may
designate; provided, however, that the Company shall not be obligated to
qualify as a foreign corporation in any jurisdiction in which it is not so
qualified. In each jurisdiction in which the Securities, have been so
qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for as long as may be required for the distribution of the
Securities. The Company will promptly advise you of the receipt by the
Company of any notification with respect
10
<PAGE>
to the suspension of the qualification of the Securities for sale in any
such state or jurisdiction or the initiating or threatening of any
proceeding for such purpose.
(g) The Company will make generally available to its security holders
(as defined in Rule 158 of the 1933 Act Regulations) as soon as
practicable, but not later than 90 days after the close of the period
covered thereby, an earning statement (which need not be audited, but which
shall be in form complying with the provisions of Rule 158) covering a
twelve month period beginning not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in said Rule
158) of the Registration Statement.
(h) The Company during the period when the Prospectus is required to
be delivered under the 1933 Act, will file promptly all documents required
to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or
15(d) of the 1934 Act within the time periods required by the 1934 Act
Regulations.
(i) For such period of time as is specified in a Terms Agreement,
commencing on the date of such Terms Agreement with respect to the
Securities covered thereby, the Company will not, without the prior written
consent of such of you as may be named in such Terms Agreement, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or
otherwise dispose of, any Securities.
SECTION 4. Payment of Expenses. The Company will pay all expenses
-------------------
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the reproduction and delivery of this
Agreement and each Terms Agreement, (iii) the preparation, issuance and delivery
of the certificates for the Securities to the Underwriters, (iv) the fees and
disbursements of the Company's counsel and accountants, (v) the qualification of
the Securities and, if applicable, the Common Stock, under securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any Legal Investment Survey (copies of which shall be furnished to
the Company promptly after preparation by such counsel), (vi) the printing and
delivery to the Underwriters of copies of the registration statement as
originally filed and all amendments thereto, the Registration Statement and all
amendments thereto, of each preliminary prospectus, and of the Prospectus and
any amendments or supplements thereto, (vii) the reproduction and delivery to
the Underwriters of copies of each Supplemental Indenture and the Blue Sky
Survey and any Legal Investment Survey, and (viii) the fees of rating agencies.
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<PAGE>
If a Terms Agreement is terminated by such of you as are named therein in
accordance with the provisions of Section 5 or Section 9(i) hereof, the Company
shall reimburse the Underwriters named in such Terms Agreement for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for such Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
---------------------------------------
the Underwriters to purchase Securities pursuant to any Terms Agreement are
subject to the accuracy of the representations and warranties of the Company
herein contained, to the accuracy of the statements of the Company's officers
made in any certificate furnished pursuant to the provisions hereof, to the
performance by the Company of all of its covenants and other obligations
hereunder, and to the following further conditions:
(a) At the applicable Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission, (ii) the rating assigned by any nationally recognized
statistical rating organization to any debt securities or preferred stock
of the Company as of the date of the applicable Terms Agreement shall not
have been lowered since the execution of such Terms Agreement nor shall any
such rating organization have publicly announced that it has placed any
debt securities or preferred stock of the Company on what is commonly
termed a "watch list" for possible downgrading or (iii) there shall not
have come to the attention of such of you as may be named in the applicable
Terms Agreement any facts that would cause such of you to believe that the
Prospectus, together with the applicable Prospectus Supplement, at the time
it was required to be delivered to a purchaser of the Securities, contained
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at such time, not misleading.
(b) At the applicable Closing Time you shall have received:
(1) The favorable opinion, dated as of the applicable Closing
Time, of Morrill Brown & Thomas, counsel for the Company, in form and
substance satisfactory to such of you as may be named in the
applicable Terms Agreement to the effect that:
(i) The Company is a corporation in good standing, duly
organized and validly existing under the laws of the State of
South Dakota and has the corporate power and authority under its
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articles of incorporation to own its properties and conduct its
business as described in the Registration Statement and
Prospectus.
(ii) The Company and each of its subsidiaries has been duly
qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each
jurisdiction in which the failure to so qualify by the Company or
any subsidiary would have a material adverse effect on the
operations of the Company and its subsidiaries considered as one
enterprise.
(iii) The Indenture has been duly and validly authorized,
executed and delivered by the Company and constitutes the valid
and binding agreement of the Company, enforceable in accordance
with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws relating to or affecting
enforcement of creditors' rights or by general equity principles.
(iv) The Securities covered by the applicable Terms
Agreement are in the form contemplated by the Indenture,
including the applicable Supplemental Indenture, and have been
duly and validly authorized by all necessary corporate action
and, when executed and authenticated as specified in the
Indenture and delivered against payment pursuant to this
Agreement, as supplemented by the applicable Terms Agreement,
will be valid and binding obligations of the Company enforceable
in accordance with their terms, except as enforcement thereof may
be limited by bankruptcy, insolvency or other laws relating to or
affecting enforcement or creditors' rights or by general equity
principles, and will be entitled to the benefits of the
Indenture.
(v) The Indenture and the Securities covered by the
applicable Terms Agreement conform in all material respects to
the descriptions thereof in the Prospectus and the applicable
Prospectus Supplement.
(vi) The Indenture is qualified under the 1939 Act.
(vii) This Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Company.
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(viii) The Registration Statement is effective under the 1933
Act and, to the best of their knowledge and information, no stop
order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission.
(ix) At the time the Registration Statement became effective
and as of the date of the applicable Terms Agreement, the
Registration Statement (other than the financial statements and
schedules and other financial or statistical data included or
incorporated by reference therein and the Statement of
Eligibility of the Trustee on Form T-1 (the "Form T-1"), as to
which no opinion need be rendered) complied as to form in all
material respects with the requirements of the 1933 Act, the 1939
Act and the 1933 Act Regulations.
(x) The documents incorporated by reference into the
Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act
(other than the financial statements included therein, as to
which no opinion need be rendered) at the time they were filed
with the Commission, complied as to form in all material respects
with the requirements of the 1934 Act and the 1934 Act
Regulations.
(xi) The South Dakota and Wyoming Commissions have
authorized the issue and sale of the Securities; such
authorizations, to the best of such counsel's knowledge, are
still in force and effect and are sufficient for the issue and
sale of the Securities; the issue and sale of the Securities are
in conformity with the terms of such authorizations; and no other
consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body
is required for the issue and sale of the Securities by the
Company or the consummation by the Company of the transactions
contemplated by this Agreement, except such as may be required
under the 1933 Act, the 1939 Act or the 1933 Act Regulations or
state securities laws.
(xii) Each subsidiary of the Company is a corporation in
good standing, duly organized and validly existing under the laws
of its jurisdiction of incorporation and has corporate power and
authority to carry on the business in which it is engaged and to
own and operate the properties used by it in such business and
all of
14
<PAGE>
the issued and outstanding capital stock of each subsidiary of
the Company has been duly authorized and validly issued, is fully
paid and non-assessable, and is owned directly or indirectly by
the Company free and clear of liens, encumbrances, equities or
claims.
(xiii) To the best of such counsel's knowledge and
information, there are no legal or governmental proceedings
pending or threatened of a character which are required to be
disclosed in the Registration Statement and Prospectus except as
otherwise stated therein.
(xiv) The information in the Prospectus under the captions
"Description of the Offered Bonds" and, with respect to the
Prospectus Supplement relating to an issue of Securities, any
further description with respect to such Securities to the extent
that such information constitutes matters of law, summaries of
legal matters, documents or proceedings, or legal conclusions,
has been reviewed by him and is correct in all material respects.
(xv) To the best of such counsel's knowledge, the
statements in the Company's Annual Report on Form 10-K for the
year ended December 31, 1993 under "Rate Regulation" and
"Environmental Regulation," as modified or superseded by any
subsequently filed documents, have been prepared or reviewed by
them and are materially correct.
(xvi) To the best of such counsel's knowledge and
information, there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments of a character
required to be described in the Registration Statement or to be
filed as exhibits thereto other than those described or referred
to therein or filed or incorporated by reference as exhibits
thereto, the descriptions thereof or references thereto are
correct, and no default exists in the due performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument so described, referred
to, or filed or incorporated by reference.
(xvii) The execution and delivery of this Agreement and the
applicable Terms Agreement and Indenture by the Company and the
consummation by
15
<PAGE>
the Company of the transactions contemplated herein and therein
will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under,
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries may be bound, or to which any
of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any
violation of the provisions of the Articles of Incorporation or
By-Laws of the Company or any statute or any order, rule or
regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties; the offering of Consent
Bonds as contemplated by the Registration Statement and
Prospectus will not conflict with or constitute a violation of
the laws of South Dakota.
(xviii) The Company and its subsidiaries have statutory
authority, franchises, licenses, rights of way, easements, and
consents free from unduly burdensome restrictions and adequate
for the conduct of the business in which each of them is engaged.
(xix) Except as set forth in the Registration Statement and
Prospectus, the Company and its subsidiaries have good and valid
title to substantially all of their permanent fixed properties
owned respectively by them.
(2) The favorable opinion, dated as of Closing Time, of Brown &
Wood, counsel for the Underwriters, with respect to the matters set
forth in (iv), (vi), (vii), (viii) and (ix) of subsection b(1) of this
Section.
(3) In giving their opinions required by subsections (b)(1) and
(b)(2), respectively, of this Section, Morrill Brown & Thomas and
Brown & Wood shall each additionally state that nothing has come to
their attention that would lead them to believe that the Registration
Statement at the time it became effective, or if an amendment to the
Registration Statement or an Annual Report on Form 10-K has been filed
by the Company with the Commission subsequent to the effectiveness of
the Registration Statement, then at the time of the most recent such
filing, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
16
<PAGE>
necessary to make the statements therein not misleading or that the
Prospectus, as amended or supplemented at the date of the applicable
Terms Agreement and at Closing Time, included or includes an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. In
connection with the statements required by this subsection (3),
Morrill Brown & Thomas and Brown & Wood may state that, while they
have participated in the preparation of the Registration Statement and
the Prospectus, they have relied upon statements and representations
of representatives of the Company and have not independently verified
the statements contained in the Registration Statement or the
Prospectus.
(c) At the applicable Closing Time there shall not have been, since
the date of the applicable Terms Agreement or since the respective dates as
of which information is given in the Registration Statement, any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and you shall have received a certificate of
the President or Vice President or of the Company and of the chief
financial or chief accounting officer of the Company, dated as of such
Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties of the Company
contained in Section 1 hereof are true and correct with the same force and
effect as though expressly made at and as of such Closing Time, (iii) the
Company has compiled with all agreements and satisfied all conditions on
its part to be compiled with or satisfied at or prior to such Closing Time,
and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission.
(d) At the time of the execution of this Agreement and at the
applicable Closing Time, you shall have received from Arthur Anderson & Co.
a letter dated such date, in form and substance satisfactory to you, to the
effect that (i) they are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the 1933
Act and the applicable published rules and regulations thereunder; (ii) in
their opinion the consolidated financial statements and supporting
schedules audited by them and included or incorporated by reference in the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the related
published rules and regulations with respect to
17
<PAGE>
registration statement Form S-3 and the 1934 Act and the 1934 Act
Regulations; (iii) based upon limited procedures set forth in detail in
such letter (including a review of all interim financial information in
accordance with SAS No. 71), nothing has come to their attention which
causes them to believe that (A) the unaudited financial statements and
supporting schedules of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the 1934 Act and the 1934 Act Regulations or are
not fairly presented in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the
audited financial statements included in the Registration Statement, (B) at
a specified date not more than five days prior to the date of such letter,
there has been any change in the capital stock or long-term debt of the
Company consolidated (except for such number of shares of Common Stock set
forth in said letter as may have been issued pursuant to the Company's
existing stock option plans and employee stock purchase plan) consolidated
net current assets or as compared with the amounts shown in the most recent
balance sheet included or incorporated by reference in the Registration
Statement or, during the period from a specified date not more than five
days prior to the date of such letter, there were any decreases, as
compared with the corresponding period in the preceding year, in
consolidated net revenue, or in the total or per share amounts of
consolidated net income of the Company and its subsidiaries except in all
instances for changes, increases or decreases which the Registration
Statement and the Prospectus disclose have occurred or may occur; and (iv)
in addition to the examination referred to in their opinions and the
limited procedures referred to in clause (iii) above, they have carried out
certain specified procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information which are included
in the Registration Statement and Prospectus and which are specified by you
and have found such amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other records of the
Company and its subsidiaries identified in such letter.
(e) At the applicable Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any
of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein
contemplated shall be
18
<PAGE>
reasonably satisfactory in form and substance to you and counsel for the
Underwriters.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, the applicable Terms Agreement may be
terminated by such of you as may be named in such Terms Agreement by notice to
the Company at any time at or prior to the applicable Closing Time, and such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof.
SECTION 6. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto) or incorporated documents, or the omission or
alleged omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including,
the fees and disbursements of counsel chosen by you), reasonably incurred
in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
- -------- -------
liability, claim, damage or expense to the extent
19
<PAGE>
arising out of any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto).
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through you expressly for use in
the Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled,
at its own expense, to participate therein and to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to assume the
defense thereof with counsel reasonably satisfactory to the indemnified party.
After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section for any legal or
other expenses subsequently incurred by the indemnified party in connection with
the defense thereof other than reasonable costs of investigation; provided,
however, that you shall have the right to employ counsel to represent jointly
you and the other Underwriters and their respective controlling persons who may
be subject to liability arising out of any claim in respect of which indemnity
may be sought by you and the other Underwriters against the Company under this
Section if, in your reasonable judgment, it is advisable for you and the other
Underwriters and controlling persons to be jointly represented by separate
counsel and in that event the fees and expenses of such separate counsel shall
be paid by the Company. In no event shall the indemnifying parties be liable
for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with
20
<PAGE>
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
SECTION 7. Contribution. In order to provide for just and equitable
------------
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
Underwriters of each offering of Securities shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Company and one or more of the
Underwriters in respect of such offering, as incurred, in such proportions that
the Underwriters are responsible for that portion represented by the percentage
that the underwriting discount appearing on the cover page of the Prospectus in
respect of such offering bears to the initial public offering price appearing
thereon and the Company is responsible for the balance; provided, however, that
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section,
each person, if any, who controls an Underwriter within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
-------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement or
any Terms Agreement or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive
delivery of any Securities to the Underwriters.
SECTION 9. Termination of Agreement. This Agreement may be terminated for
------------------------
any reason at any time by either the Company or you upon the giving of thirty
days' written notice of such termination to the other parties hereto. Such of
you as may be named in any Terms Agreement may also terminate such Terms
Agreement, immediately upon by notice to the Company, at any time at or prior to
the applicable Closing Time (i) if there shall have been, since the date of such
Terms Agreement or since the respective dates as of which information is given
in the Registration Statement, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the
21
<PAGE>
ordinary course of business, or (ii) if there shall have occurred any material
adverse change in the financial markets in the United States or any outbreak or
escalation of hostilities or other national or international calamity or crisis,
the effect of which is such as to make it, in the reasonable judgment of such of
you as are named in such Terms Agreement, impracticable to market the Securities
or to enforce contracts for the sale of the Securities, or (iii) if trading in
the Common Stock shall have been suspended by the Commission or a national
securities exchange, or if trading generally on the New York Stock Exchange
shall have been suspended, or minimum or maximum prices for trading shall have
been fixed, or maximum ranges for prices for securities shall have been
required, by said Exchange or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by either
Federal New York authorities, or (iv) if the rating assigned by any nationally
recognized statistical rating organization to any debt securities or preferred
stock of the Company as of the time any applicable Terms Agreement was entered
into shall have been lowered since that time or if any such rating organization
shall have publicly announced that it has placed any debt securities or
preferred stock of the Company on what is commonly termed a "watch list" for
possible downgrading. In the event of any such termination, (x) the covenants
set forth in Section 3 with respect to any offering of Securities shall remain
in effect so long as any Underwriter owns any such Securities purchased from the
Company pursuant to the applicable Terms Agreement and (y) the covenant set
forth in Section 3(h), the provisions of Section 4, the indemnity agreement set
forth in Section 6, the contribution provisions set forth in Section 7 and the
provisions of Sections 8 and 13 shall remain in effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
------------------------------------------
the Underwriters participating in an offering of Securities shall fail at the
applicable Closing Time to purchase the Offered Securities which it or they are
obligated to purchase hereunder and under the applicable Terms Agreement (the
"Defaulted Securities"), then such of you as are named therein shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, you shall not have completed
such arrangements within such 24 hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does
not exceed 10% of the aggregate principal amount of Offered Securities to
be purchased pursuant to such Terms Agreement, the non-defaulting
Underwriters named in such Terms Agreement shall be obligated to purchase
the full amount thereof in the proportions that their respective
underwriting obligations bear to the underwriting obligations of all non-
defaulting Underwriters, or
22
<PAGE>
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of Offered Securities to be
purchased pursuant to such Terms Agreement, the applicable Terms Agreement
shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default by any Underwriter or Underwriters as set
forth in this Section, either you or the Company shall have the right to
postpone the applicable Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to you at the address set forth above or, in
respect of any Terms Agreement, to such other person and place as my be
specified therein; notices to the Company shall be directed to it at Black Hills
Corporation, P.O. Box 1400, Rapid City, South Dakota, 57709, attention Dale E.
Clement, Senior Vice President -- Finance.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
-------
binding upon you and the Company and any Underwriter who becomes a party to a
Terms Agreement, and their respective successors. Nothing expressed or
mentioned in this Agreement or a Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the parties hereto
and thereto and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or a Terms Agreement or any provision herein or
therein contained. This Agreement and any Terms Agreement and all conditions
and provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties and their respective successors and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. Governing Law. This Agreement and each Terms Agreement shall
-------------
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in said State.
23
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
you and the Company in accordance with its terms.
Very truly yours,
BLACK HILLS CORPORATION
By_____________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
PAINEWEBBER INCORPORATED
By MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By_____________________________
Authorized Signatory
24
<PAGE>
Exhibit A
BLACK HILLS CORPORATION
First Mortgage Bonds
TERMS AGREEMENT
---------------
Dated: , 19
To:
Re: Underwriting Agreement dated , 19 .
Title of Securities:
Current ratings:
Interest rate: %. Payable:
Date of Maturity:
Public offering price: %, plus accrued interest or amortized
original issue discount, if any, from
__________, 19__.
Purchase price: %, plus accrued interest or amortized
original issue discount, if any, from
_________, 19___ (payable in next day
funds).
Closing date and location:
Additional co-managers, if any:
Redemption provisions:
Sinking fund requirements:
Number of days for which the
provisions of Section 3(i)
apply:
Each Underwriter severally agrees, subject to the terms and provisions of the
above referenced Underwriting Agreement, which is incorporated herein in its
entirety and made a part hereof, to purchase the principal amount of Offered
Securities set forth opposite its name.
1
<PAGE>
Principal Amount of
Name Offered Securities
- ---- -------------------
---------
Total........... $
=========
[Managing Underwriters]
By___________________________
Acting on behalf of themselves and
the other named Underwriters
Accepted:
BLACK HILLS CORPORATION
By________________________
Name:
Title:
2
<PAGE>
EXHIBIT 4.04
No. ______________________ $________________
BLACK HILLS CORPORATION
FIRST MORTGAGE BOND, SERIES ___, _____%, DUE __________, _____
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 ____ day of ________, _____, 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 _____ 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 ___________ and ______________
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, at the rate of
_____ percent, per annum until the principal hereof shall be paid. The first
interest payment shall be due ___________, ____ 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 ____________________ (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
<PAGE>
the ___________________ Supplemental Indenture and entitled "First Mortgage
Bonds, Series ___, ______%, due __________, ____" (the "Series ____ 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 _____ Bonds
to be issued under the terms of the _______________ 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 _____________ Supplemental Indenture authorizing this Series of
Bonds. This provision does hereby constitute a written consent of the Holders,
including all successor Holders, of the Series ____ 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.
-------------------
[To be included if the Series includes optional redemption provisions]
The Bonds of this Series are subject to redemption, in whole or in part, at
the option of the Company on (but not before) ______________, _____ 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:
2
<PAGE>
If Redeemed During
12-Month Period
Beginning Percentage
---------------- ----------
Mandatory sinking fund.
-----------------------
[To be included if the Series includes mandatory sinking fund provisions]
The Bonds of Series ____ are subject to redemption, pursuant to the terms
of the mandatory sinking fund provided for in the ____________ Supplemental
Indenture, on ____________, ______ and on each ____________ thereafter, at 100%
of the principal amount thereof plus accrued interest to the redemption date in
the following respective principal amounts:
Date Principal Amount
---- ----------------
No premium shall be payable in connection with any payment made pursuant to this
Section.
Pursuant to the provisions of Section 8.08 of the Indenture, the Series
____ Bonds are further subject to redemption, in whole or in part, by
application of monies deposited with the Trustee in certain cases for the
release of properties from the lien of the Indenture, at any time with the
giving of the requested notice. Monies applied to the redemption of Series ____
Bonds pursuant to Section 8.08 of the Indenture on or before ______________,
_____ shall be applied at a redemption price equal to 100% of the principal
amount of the Bonds of Series ___ to be redeemed, plus accrued interest to the
redemption date. Monies applied to the redemption of Series ___ Bonds pursuant
to the provisions of Section 8.08 of the Indenture on or after ___________,
_____, shall be applied at a redemption price equal to the applicable percentage
of the principal amount of the Series ___ Bonds to be redeemed set forth under
the Option Redemption paragraph of this Series ___ Bond plus accrued interest to
the redemption date.
[Redemption provisions to be consistent with any Optional Redemption
provisions of the Series.]
The particular Series ____ 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 ___ Bonds according to the respective principal amounts of such Bonds.
3
<PAGE>
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 ___, ______%, due _________, _____, are
issuable as fully registered Bonds without coupons of the denominations 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 ___ 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.
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
4
<PAGE>
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
5
<PAGE>
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
BLACK HILLS POWER AND LIGHT COMPANY
TO
CENTRAL HANOVER BANK AND TRUST COMPANY
As Trustee
--------------
Supplemental Indenture
Dated as of March 1, 1950
--------------
Supplemental to Indenture of Mortgage and
Deed of Trust Dated as of September 1, 1941
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
<PAGE>
SUPPLEMENTAL INDENTURE, dated as of the 1st day of March, 1950 between 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 CENTRAL HANOVER BANK AND TRUST COMPANY, 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 the Trustee, dated September 1, 1941, hereinafter
referred to as the "Original Indenture", and has also executed and delivered
to said Trustee an indenture dated July 15, 1945, hereinafter referred to as
the "First Supplemental Indenture", an indenture dated January 15, 1948,
hereinafter referred to as the "Second Supplemental Indenture", and an
indenture dated January 15, 1949, hereinafter referred to as the "Third
Supplemental Indenture", supplementing and amending said Original Indenture
which, as so supplemented and amended, is hereinafter referred to as the
"Indenture"; and
WHEREAS, the Original Indenture was recorded in the Office of the Secretary
of State, South Dakota, October 29, 1941, in Volume 15, Pages 1 to 53,
inclusive, of the Record of Railway Deeds, Mortgages and Leases and in the
Office of the Register of Deeds, Weston County, Wyoming, on March 26, 1946, in
Book 30 of Mortgages, Page 322, and in the office of the County Clerk and
Ex-Officio Register of Deeds, Crook County, Wyoming, on March 12, 1948, in
Book 105 at Page 333; the First Supplemental Indenture was recorded in the
Office of the Secretary of State, South Dakota, on July 25, 1945, in Volume
16 at Page 260 of the Record of Railway Deeds, Mortgages and Leases and in
the Office of the Register of Deeds, Weston County, Wyoming, on April 4,
1946, in Book 30 of Mortgages at Page 454 and in the Office of the County
Clerk and Ex-Officio Register of Deeds, Crook County, Wyoming, on March 12,
1948, in Book 105 at Page 333; the Second Supplemental Indenture was recorded
in the Office of the Secretary of State, South Dakota, on March 8, 1948, in
Volume 19 at Page 217, of the Record of Railway Deeds, Mortgages and Leases,
and in the
<PAGE>
2
Office of the Register of Deeds, Weston County, Wyoming, on March 8, 1948, in
Book 31 of Mortgages, at Page 603, and in the Office of the County Clerk and
Ex-Officio Register of Deeds, Crook County, Wyoming, on March 12, 1948, in
Book 105, at Page 333; and the Third Supplemental Indenture was recorded in
the Office of the Secretary of State, South Dakota on April 13, 1949 in Volume
20 at Page 63 of the Record of Railway Deeds, Mortgages and Leases and in the
Office of the Register of Deeds, Weston County, Wyoming, on April 14, 1949 in
Book 33 of Mortgages at Page 196 and in the Office of the County Clerk and
Ex-Officio Register of Deeds, Crook County, Wyoming on April 13, 1949 in Book
105 at Page 545; and
WHEREAS, pursuant to the provisions of the Indenture, First Mortgage
Bonds, Series A, 3 3/8%, due September 1, 1971, First Mortgage Bonds, Series
B, 3%, due July 15, 1975, First Mortgage Bonds, Series C, 3 3/8%, due July 15,
1975 and First Mortgage Bonds Series D, 3 3/8%, due January 15, 1979 have
been duly issued and are presently outstanding and secured by the Indenture;
and
WHEREAS, the Company has purchased, constructed or otherwise acquired,
subsequent to the date of execution and delivery of the Third Supplemental
Indenture, certain Property Additions not heretofore specifically mortgaged
and pledged under the Indenture and it desires, by the inclusion of the
descriptions thereof in this Supplemental Indenture, to specifically mortgage
and pledge such property; 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 E, 3%" (hereinafter
called "Bonds of Series E"), to be initially authenticated and delivered in
the aggregate principal amount of $990,000, in the form, having the
characteristics and being entitled to the benefits as in this Supplemental
Indenture provided, the Bonds of Series A, Series B, Series C, Series D and
Series E being hereinafter referred to collectively as the "Bonds"; and
WHEREAS, the Company deems it advisable that the Indenture be amended as
herein provided and the holder of all of the outstanding bonds issued under the
Indenture, being all of the Bonds of Series A,
<PAGE>
3
Series B, Series C and Series D has duly consented, pursuant to the provisions
of Section 18.11 of the Indenture, to the execution of this Supplemental
Indenture and has lodged with the Trustee an instrument duly setting forth
such consent; 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 Original
Indenture, and particularly the provisions contained in Articles Two,
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 a Supplemental Indenture in the form hereof 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 Bonds of
Series E, and 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 and interest coupons, if any, pertaining thereto 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,
<PAGE>
4
remise, release, convey, confirm, assign, mortgage, pledge and set over unto
the Trustee, and to its successors and assigns forever, the following
described property, constituting property acquired by the Company since the
date of execution and delivery of the Third Supplemental Indenture, and not
heretofore specifically mortgaged and pledged under the Indenture:
The Northeast Quarter of Section Fifteen, Township Forty-six North of
Range Sixty Three West of the Sixth Principal Meridian, Weston county,
Wyoming.
TOGETHER with, all and singular, the tenements, hereditaments and
appurtenances belonging or in any wise 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, rights and franchises, and every part and
parcel 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 provisos 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
BONDS OF SERIES E, 3%
SECTION 1.01. There is hereby created a series of Bonds, known as and
entitled "First Mortgage Bonds, Series E, 3%", due March
<PAGE>
5
1, 1980 and the form thereof shall be as provided in this Supplemental
Indenture.
The aggregate principal amount of Bonds of Series E which may be
authenticated and delivered and outstanding under the Indenture and this
Supplemental Indenture shall be unlimited except as provided in Articles Four,
Five and Six of the Original Indenture and in Section 4.04 of the Third
Supplemental Indenture. The aggregate principal amount of Bonds of Series E
initially authenticated and delivered hereunder shall be $990,000. The Bonds of
Series E shall bear interest at the rate of 3% per annum until the principal
thereof becomes due and payable and thereafter, if default be made in the
payment of such principal, at the rate of 6% per annum until the principal
thereof shall be paid, and shall mature March 1, 1980.
The Bonds of Series E shall be coupon Bonds of the denomination of $1,000
and registered Bonds without coupons of the 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 coupon Bonds of Series E shall be
dated March 1, 1950, which date shall be the date of the commencement of the
first interest period for all Bonds of Series E, and shall be numbered from EM1
consecutively upwards. The registered Bonds of Series E without coupons shall
be dated as provided in Section 2.05 of the Original Indenture, and shall be
numbered, in the case of Bonds of the denomination of $1,000, from ERM1
consecutively upwards and, in the case of Bonds of other denominations, from
ERX1 consecutively upwards. All Bonds of Series E shall bear interest from
their respective dates, such interest to be payable semi-annually on the first
day of March and September in each year, the first interest payment date being
September 1, 1950. The principal of, premium, if any, and interest on the Bonds
of Series E shall be payable at the principal 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 Bonds of Series E shall be
subject to redemption as provided in Section 1.03 and Article Two of this
Supplemental Indenture.
<PAGE>
6
The Trustee is hereby appointed Registrar in respect of the Bonds
of Series E, and the principal 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 Bonds
of Series E, or their appurtenant coupons, may be served.
The definitive Bonds of Series E shall be issued in the form of engraved
Bonds or Bonds printed or lithographed on steel engraved borders. Subject to
the foregoing provisions of this Section and to the provisions of Section 2.11
of the Original Indenture, all definitive Bonds of Series E shall be fully
interchangeable for other Bonds of the same series, and, upon surrender to the
Trustee at its principal office, shall be exchangeable for other Bonds of the
same series in coupon form or fully registered form and in such authorized
denomination or denominations in the same aggregate principal amount, as may he
requested by the holder surrendering the same. The Company will execute, and
the Trustee shall authenticate and deliver, coupon Bonds and/or registered
Bonds without coupons, whenever the same shall be required for any such
exchange.
SECTION 1.02. The texts of the Bonds of Series E, the coupons to be
attached thereto and the certificate of authentication of the Trustee to be
executed thereon, are to be substantially in the following forms, respectively:
(FORM OF COUPON BOND OF SERIES E)
No. EM ..... $1,000
BLACK HILLS POWER AND LIGHT COMPANY
FIRST MORTGAGE BOND SERIES E, 3%, DUE MARCH 1, 1980
BLACK HILLS POWER AND LIGHT COMPANY (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 bearer, or, if this Bond be registered as to principal, then to the
<PAGE>
7
registered owner hereof, on the 1st day of March, 1980, at the principal office
of the Trustee, in the Borough of Manhattan, The City of New York, ONE
THOUSAND 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 March 1, 1950, at the rate
of three per cent. per annum, 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, at the rate of six per
cent. per annum until the principal hereof shall be paid. The interest accrued
up to the date of maturity shall be paid only upon presentation and surrender
and according to the tenor of the interest coupons hereto annexed as they
severally mature.
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 as
supplemented and amended by Supplemental Indentures dated as of July 15, 1945,
January 15, 1948, January 15, 1949 and March 1, 1950 (hereinafter collectively
called the "Indenture"), executed by the Company to Central Hanover Bank and
Trust Company (herein called the "Trustee"), as Trustee, to which
Indenture and all indentures 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 coupons 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.
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 per cent. in principal amount of the Bonds then
outstanding and entitled to consent, and of not less than sixty-six and
two-thirds per cent. in principal
<PAGE>
8
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, 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 coupons 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, or which would modify, without the written consent of the Trustee,
the rights, duties or immunities of the Trustee.
As provided in said Indenture, said Bonds are issuable in series which may
vary as in said Indenture provided or permitted. This Bond is one of a series
of Bonds entitled "First Mortgage Bonds, Series E, 3%", due March 1, 1980.
This Bond is subject to redemption at the option of the Company at any time
upon at least thirty (30) days' and not more than fifty (50) days' notice
published in an authorized newspaper in the Borough of Manhattan, The city of
New York, and/or mailed, all as more fully provided in the Indenture, at the
percentages of the principal amount hereinafter set forth and referred to as
the General Redemption prices, together, in each case, with accrued interest
to the redemption date.
This Bond is entitled to the benefits of a sinking fund as provided in the
Indenture and is subject to redemption by application of sinking fund moneys
and also out of moneys deposited with the Trustee in certain cases of the
release of properties from the lien of the Indenture, all subject to the
conditions and as more fully set forth in the Indenture, at any time upon the
notice hereinabove mentioned at the percentages of the principal amount
hereinafter set forth and referred to as the Special Redemption prices,
together, in each case, with accrued interest to the redemption date.
<PAGE>
9
The General and Special Redemption prices are as follows :
<TABLE>
<CAPTION>
Percentage of principal amount
-------------------------------
General Special
redemption redemption
price price
----------- ----------
<S> <C> <C>
If redeemed on or before
August 31, 1951......................... 104 100.99
If redeemed during 12 months
ending August 31,
1952......................... 103.91 100.96
1953......................... 103.82 100.94
1954......................... 103.73 100.92
1955......................... 103.63 100.90
1956......................... 103.53 100.87
1957......................... 103.43 100.85
1958......................... 103.33 100.82
1959......................... 103.22 100.80
1960......................... 103.11 100.77
1961......................... 102.99 100.74
1962......................... 102.88 100.71
1963......................... 102.76 100.68
1964......................... 102.63 100.65
1965......................... 102.51 100.62
1966......................... 102.37 100.59
1967......................... 102.24 100.56
1968......................... 102.10 100.52
1969......................... 101.96 100.49
1970......................... 101.81 100.45
1971......................... 101.66 100.42
1972......................... 101.51 100.38
1973......................... 101.35 100.34
1974......................... 101.19 100.30
1975......................... 101.02 100.26
1976......................... 100.84 100.21
1977......................... 100.67 100.17
1978......................... 100.48 100.12
1979......................... 100.30 100.08
If redeemed after
August 31, 1979......................... 100.10 100.03
</TABLE>
<PAGE>
10
If an event of default, as defined in said 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 said Indenture.
This Bond is transferable by delivery unless registered as to principal in
the name of the holder on books of the Company to be kept for such purpose at
the principal office of the Trustee in the Borough of Manhattan, The City of
New York, such registration being noted hereon. After such registration, no
transfer hereof shall be valid unless made upon said books by the registered
owner in person or by attorney authorized in writing and similarly noted
hereon; but this Bond may be discharged from registration by being, in like
manner, transferred to bearer, and thereupon transferability by delivery shall
be restored, but again and from time to time this Bond may be registered or
transferred to bearer as before. Such registration, however, shall not affect
the negotiability of the coupons hereto appertaining, which shall always
continue to be payable to bearer and to be transferable by delivery.
First Mortgage Bonds, Series E, 3%, due March 1, 1980, are issuable as
coupon Bonds in the denomination of $1,000 or as fully registered Bonds without
coupons of the 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. All Bonds of said series are fully interchangeable for other Bonds of
the same series, and upon surrender to the Trustee at its principal office in
the Borough of Manhattan, The City of New York, are exchangeable for other
Bonds of the same series in coupon form or fully 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 and the Trustee may deem and treat the bearer of this Bond,
if it be not registered as to principal, or, if this Bond be registered as
herein authorized, the person in whose name the same is registered, and the
bearer of any coupon hereto appertaining, as the absolute owner for the
purpose of receiving payment, and neither the Company nor the Trustee shall be
affected by any notice to the contrary.
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
<PAGE>
11
in respect hereof or of said 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 said Indenture; provided, however, that nothing herein or in said 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.
Neither this Bond nor any of the annexed interest coupons shall 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 said 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, and coupons for said interest, bearing the
facsimile signature of its Treasurer, to be hereunto attached.
Dated March 1, 1950.
BLACK HILLS POWER AND LIGHT COMPANY,
By
President.
Attest:
Secretary.
<PAGE>
12
(FORM OF INTEREST COUPONS FOR COUPON BONDS OF SERIES E)
On the first day of , 19 (unless the Bond hereinafter described shall
have been called for previous redemption and payment duly provided therefor),
upon surrender of this coupon, Black Hills Power and Light Company will pay to
bearer at the principal office of Central Hanover Bank and Trust company, in
the Borough of Manhattan, The City of New York, Fifteen Dollars ($15.00), in
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, being six
months interest then due on its First Mortgage Bond, Series E, 3%, due March
1, 1980, No. .
Treasurer.
(FORM OF REGISTERED BOND OF SERIES E)
No. ER . . . $ . . .
BLACK HILLS POWER AND LIGHT COMPANY
FIRST MORTGAGE BOND, SERIES E, 3%, DUE MARCH 1, 1980
BLACK HILLS POWER AND LIGHT COMPANY (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 March, 1980, at the principal 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 three per cent. per annum, 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, at the rate of
six per cent. per annum until the principal hereof shall be paid.
<PAGE>
13
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 as
supplemented and amended by Supplemental Indentures dated as of July 15, 1945,
January 15, 1948, January 15, 1949 and March 1, 1950 (hereinafter collectively
called the "Indenture"), executed by the Company to Central Hanover Bank and
Trust Company (herein called the "Trustee"), as Trustee, to which Indenture
and all indentures 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 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.
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 per cent. in principal amount of the Bonds then
outstanding and entitled to consent, and of not less than sixty-six and
two-thirds per cent. 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 coupons 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, or which would modify, without the written consent of the Trustee,
the rights, duties or immunities of the Trustee.
<PAGE>
14
As provided in said Indenture, said Bonds are issuable in series which may
vary as in said Indenture provided or permitted. This Bond is one of a series
of Bonds entitled "First Mortgage Bonds, Series E, 3%", due March 1,
1980.
This Bond is subject to redemption, in whole or in part, at the option of
the Company at any time, upon at least thirty (30) days' and not more than
fifty (50) days' notice published in an authorized newspaper in the Borough of
Manhattan, The City of New York, and/or mailed, all as more fully provided in
the Indenture, at the percentages of the principal amount hereinafter set
forth and referred to as the General Redemption prices, together, in each
case, with accrued interest to the redemption date.
This Bond is entitled to the benefits of a sinking fund as provided in the
Indenture and is subject to redemption in whole or in part by application of
sinking fund moneys and also out of moneys deposited with the Trustee in
certain cases of the release of properties from the lien of the Indenture, all
subject to the conditions and as more fully set forth in the Indenture, at any
time upon the notice hereinabove mentioned at the percentages of the principal
amount hereinafter set forth and referred to as the Special Redemption prices,
together, in each case, with accrued interest to the redemption date.
The General and Special Redemption prices are as follows:
<TABLE>
<CAPTION>
Percentage of principal amount
---------------------------------
General Special
redemption redemption
price price
----------- -----------
<S> <C> <C>
If redeemed on or before
August 31, 1951 ....................... 104 100.99
If redeemed during 12 months
ending August 31,
1952......................... 103.91 100.96
1953......................... 103.82 100.94
1954 ........................ 103.73 100.92
1955......................... 103.63 100.90
1956......................... 103.53 100.87
1957 . ...................... 103.43 100.85
1958......................... 103.33 100.82
</TABLE>
<PAGE>
15
<TABLE>
<S> <C> <C>
1959......................... 103.22 100.80
1960......................... 103.11 100.77
1961......................... 102.99 100.74
1962......................... 102.88 100.71
1963......................... 102.76 100.68
1964......................... 102.63 100.65
1965......................... 102.51 100.62
1966......................... 102.37 100.59
1967......................... 102.24 100.56
1968......................... 102.10 100.52
1969......................... 101.96 100.49
1970 ........................ 101.81 100.45
1971 ........................ 101.66 100.42
1972......................... 101.51 100.38
1973......................... 101.35 100.34
1974......................... 101.19 100.30
1975......................... 101.02 100.26
1976......................... 100.84 100.21
1977......................... 100.67 100.17
1978......................... 100.48 100.12
1979......................... 100.30 100.08
If redeemed after
August 31, 1979 ....................... 100.10 100.03
</TABLE>
If this Bond or any portion thereof ($1,000 or a multiple) shall be duly
called for redemption as provided in said 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, in either registered or
coupon form (but only in authorized denominations), 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 said 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 said Indenture.
<PAGE>
16
This Bond is transferable by the registered owner hereof in person or by
attorney authorized in writing, at said principal office of the Trustee, upon
surrender for cancellation of this Bond and on payment of charges, and upon any
such transfer a new registered Bond without coupons, of the same series, for
the same aggregate principal amount, will be issued to the transferee in
exchange herefor. First Mortgage Bonds, Series E, 3%, due March 1, 1980, are
issuable as coupon Bonds in the denomination of $1,000 or as fully registered
Bonds without coupons of the 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. All Bonds of said series are fully
interchangeable for other Bonds of the same series, and upon surrender to the
Trustee at its principal office in the Borough of Manhattan, The City of New
York, are exchangeable for other Bonds of the same series in coupon form or
fully 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 and the Trustee may deem and treat the persona 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.
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 said 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 said
Indenture; provided, however, that nothing herein or in said Indenture
contained shall be taken to prevent recourse to and the enforcement of
<PAGE>
17
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 said 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 POWER AND LIGHT COMPANY,
By
Attest: President.
Secretary.
(FORM OF TRUSTEE'S CERTIFICATE FOR BOTH COUPON AND
REGISTERED BONDS OF SERIES E )
This is one of the Bonds described in the within mentioned Indenture.
CENTRAL HANOVER BANK AND TRUST COMPANY,
As Trustee,
By
Authorized Officer.
<PAGE>
18
SECTION 1.03. The Bonds of Series E shall be redeemable (except as
otherwise provided in Section 2.02 of this Supplemental Indenture) at the
option of the Company, at any time and from time to time, in whole or in part,
in the manner and upon the notice provided in Article Ten of the Original
Indenture at general redemption prices constituting, respectively, percentages
of the principal amount thereof, as follows:
104. if redeemed on or before August 31, 1951;
103.91 if redeemed thereafter and on or before August 31, 1952;
103.82 if redeemed thereafter and on or before August 31, 1953;
103.73 if redeemed thereafter and on or before August 31, 1954;
103.63 if redeemed thereafter and on or before August 31, 1955;
103.53 if redeemed thereafter and on or before August 31, 1956;
103.43 if redeemed thereafter and on or before August 31, 1957;
103.33 if redeemed thereafter and on or before August 31, 1958;
103.22 if redeemed thereafter and on or before August 31, 1959;
103.11 if redeemed thereafter and on or before August 31, 1960;
102.99 if redeemed thereafter and on or before August 31, 1961;
102.88 if redeemed thereafter and on or before August 31, 1962;
102.76 if redeemed thereafter and on or before August 31, 1963;
102.63 if redeemed thereafter and on or before August 31, 1964;
102.51 if redeemed thereafter and on or before August 31, 1965;
102.37 if redeemed thereafter and on or before August 31, 1966;
102.24 if redeemed thereafter and on or before August 31, 1967;
102.10 if redeemed thereafter and on or before August 31, 1968;
101.96 if redeemed thereafter and on or before August 31, 1969;
101.81 if redeemed thereafter and on or before August 31, 1970;
101.66 if redeemed thereafter and on or before August 31, 1971;
101.51 if redeemed thereafter and on or before August 31, 1972;
101.35 if redeemed thereafter and on or before August 31, 1973;
101.19 if redeemed thereafter and on or before August 31, 1974;
101.02 if redeemed thereafter and on or before August 31, 1975;
100.84 if redeemed thereafter and on or before August 31, 1976;
100.67 if redeemed thereafter and on or before August 31, 1977;
100.48 if redeemed thereafter and on or before August 31, 1978;
100.30 if redeemed thereafter and on or before August 31, 1979;
100.10 if redeemed thereafter and prior to maturity;
together, in each case, with accrued interest to the redemption date.
<PAGE>
19
Any moneys applied to the redemption of Bonds of Series E pursuant to the
provisions of Section 8.08(b) of the Original Indenture shall be so applied at
the special redemption price stated in Section 2.02 of this Supplemental
Indenture.
ARTICLE TWO
SINKING FUND FOR BONDS OF SERIES E
SECTION 2.01. The Company will, subject to the provisions of this Article,
maintain a sinking fund (herein called the "Series E Sinking Fund") to be
applied as hereinafter provided for the Bonds of Series E, and for that purpose
will pay to the Trustee on the 15th day of July in each year so long as any of
the Bonds of said series shall be outstanding, commencing with the year 1951
(said dates being herein sometimes referred to as "Series E Sinking Fund
Payment Dates") a sum in cash equal to 1/2 of 1% of the total principal amount
of Bonds of Series E, theretofore at any time authenticated and delivered
under Article Four, Five or Six of the Original Indenture, but in no case
less than $5000; provided that the Company shall have the right to satisfy any
obligation in respect of the Series E Sinking Fund in whole or in part by
delivering to the Trustee not less than 30 days prior to any Series E Sinking
Fund Payment Date, any Bonds of Series E, theretofore authenticated and
delivered hereunder and not previously canceled or called for redemption,
together with (in the case of coupon bonds) all unmatured coupons thereto
appertaining, and the Trustee shall credit such Series E Sinking Fund
obligation with an amount equal to the principal amount of the Bonds of Series
E, so delivered.
If the Company elects to satisfy any Series E Sinking Fund obligation in
whole or in part by the delivery of Bonds of Series E, as above provided, it
shall deliver such Bonds of said series, together with (in the case of coupon
bonds) all unmatured coupons thereto appertaining not less than 30 days prior
to any Series E Sinking Fund Payment Date, and also written notice of such
election, signed by the Treasurer or an Assistant Treasurer of the Company,
specifying the aggregate principal amount of Bonds of said series so delivered
and the distinctive numbers thereof and specifying the amount, if any, of such
Series E Sinking Fund obligation to be satisfied by the payment
<PAGE>
20
of cash; and in case such notice be not given and such Bonds of Series E be not
delivered within the time so required, the Series E Sinking Fund obligation
shall be paid entirely in cash.
SECTION 2.02. Whenever the Trustee shall be required to redeem Bonds
pursuant to the provisions of this Article, the Company shall in each case pay
to the Trustee in cash the redemption premium thereon and all interest accrued
on such Bonds to the date of redemption thereof. All cash paid to the Trustee
in satisfaction of the requirements of the Series E Sinking Fund shall be
applied by the Trustee before the first day of September next ensuing its
receipt to the redemption of Bonds of Series E.
Whenever any Bonds of said series are to be called for redemption under
the provisions of this Section 2.02 of this Supplemental Indenture, the Trustee
shall proceed to select for redemption, from the Bonds of said series, in the
manner provided in Article Ten of the Original Indenture, a principal amount of
Bonds of said series equal to the amount of cash in said Series E Sinking Fund
which is to be applied to the redemption of Bonds of Series E, and for and on
behalf of the Company and in the name of the Company, the Trustee shall give
notice, as required by the provisions of Article Ten of the Original Indenture,
of the redemption for the Series E Sinking Fund of the Bonds so selected.
Subject to the provisions of this Article, the redemption of such Bonds shall
be effected in the manner and upon the terms provided in Section 10.03 of the
Original Indenture at special redemption prices constituting, respectively,
percentages of the principal amount thereof, as follows:
100.99 if redeemed on or before August 31, 1951;
100.96 if redeemed thereafter and on or before August 31, 1952;
100.94 if redeemed thereafter and on or before August 31, 1953;
100.92 if redeemed thereafter and on or before August 31, 1954;
100.90 if redeemed thereafter and on or before August 31, 1955;
100.87 if redeemed thereafter and on or before August 31, 1956;
100.85 if redeemed thereafter and on or before August 31, 1957;
100.82 if redeemed thereafter and on or before August 31, 1958;
100.80 if redeemed thereafter and on or before August 31, 1959;
100.77 if redeemed thereafter and on or before August 31, 1960;
100.74 if redeemed thereafter and on or before August 31, 1961;
<PAGE>
21
100.71 if redeemed thereafter and on or before August 31, 1962;
100.68 if redeemed thereafter and on or before August 31, 1963;
100.65 if redeemed thereafter and on or before August 31, 1964;
100.62 if redeemed thereafter and on or before August 31, 1965;
100.59 if redeemed thereafter and on or before August 31, 1966;
100.56 if redeemed thereafter and on or before August 31, 1967;
100.52 if redeemed thereafter and on or before August 31, 1968;
100.49 if redeemed thereafter and on or before August 31, 1969;
100.45 if redeemed thereafter and on or before August 31, 1970;
100.42 if redeemed thereafter and on or before August 31, 1971;
100.38 if redeemed thereafter and on or before August 31, 1972;
100.34 if redeemed thereafter and on or before August 31, 1973;
100.30 if redeemed thereafter and on or before August 31, 1974;
100.26 if redeemed thereafter and on or before August 31, 1975;
100.21 if redeemed thereafter and on or before August 31, 1976;
100.17 if redeemed thereafter and on or before August 31, 1977;
100.12 if redeemed thereafter and on or before August 31, 1978;
100.08 if redeemed thereafter and on or before August 31, 1979;
100.03 if redeemed thereafter and prior to maturity;
together, in each case, with accrued interest to the redemption date.
ARTICLE THREE
AMENDMENTS TO THE ORIGINAL INDENTURE
SECTION 3.01. Paragraph F of Section 5.01 of Article Five of the
Original Indenture as heretofore amended by the Third Supplemental
Indenture is hereby further amended by adding thereto the following:
``and provided further, however, that, in case the Bonds of
Series E first authenticated and delivered are authenticated and
delivered pursuant to this Article in May, 1950, there may be
substituted for said Net Earnings Certificate (in connection with
the authentication and delivery of said bonds) a similar certificate
covering the twelve (12) months period ended October 31, 1949
certified by an Accountant plus a similar certificate covering the
twelve (12) months period ended March 31, 1950 not certified
by an Accountant but certified by the Treasurer of the Company,
each such certificate to show Certifiable Net Earnings of the Com-
<PAGE>
22
pany as set forth therein to have been at least equal to two (2) times the
aggregate amount of the annual Interest Charges on the Secured Bonded
Debt of the Company as set forth therein and that the Net Earnings of the
Electric Properties as set forth therein is not less than eighty-five per
cent. (85%) of the required minimum amount of Certifiable Net Earnings."
SECTION 3.02. Section 9.16 of Article Nine of the Original Indenture as
heretofore amended by the Third Supplemental Indenture is hereby further
amended by deleting the words "Bonds of Series A, Series B, Series C or Series
D" therein and substituting therefore the words "Bonds of Series A, Series B,
Series C, Series D or Series E".
SECTION 3.03. Section 9.22 of Article Nine of the Original Indenture as
heretofore amended by the Third Supplemental Indenture is hereby further
amended by deleting the words "Bonds of Series A, Series B, Series C or
Series D" therein and substituting therefore the words "Bonds of Series A,
Series B, Series C, Series D or Series E".
ARTICLE FOURTH
MISCELLANEOUS PROVISIONS
SECTION 4.01. So long as any Bonds of Series A, Series B, Series C,
Series D or Series E shall be outstanding, no Bonds shall be authenticated and
delivered under Article Six of the Original Indenture and no Trust Moneys shall
be paid over under Article Eight of the Original Indenture upon the basis of
the redemption or retirement of Bonds of Series A for the Series A Improvement
Fund provided for in Article Eleven of the Original Indenture, upon the basis
of the redemption or retirement of Bonds of Series B for the Series B
Sinking Fund provided for in Article Two of the First Supplemental Indenture,
upon the basis of the redemption or retirement of Bonds of Series C for the
Series C Sinking Fund provided for in Article Two of the Second Supplemental
Indenture, upon the basis of the redemption or retirement of Bonds of Series D
for the Series D Sinking Fund provided for in Article Two of the Third
Supplemental Indenture or upon the basis of the redemption or retirement of
Bonds of Series E for the Series E Sinking Fund provided for in Article Two of
this Supplemental Indenture. All moneys at any time constituting a part of
said Series A
<PAGE>
23
Improvement Fund, Series B Sinking Fund, Series C Sinking Fund, Series D
Sinking Fund or Series E Sinking Fund shall be deemed to be Bonded Cash.
SECTION 4.02. The Company covenants that so long as any Bonds of
Series E shall remain outstanding it will comply with the covenants contained
in Sections 9.06, 9.15 and 9.20 of the Original Indenture.
SECTION 4.03. The aggregate principal amount of Bonds which,
immediately after the execution and delivery of this Supplemental Indenture,
will be outstanding under the provisions of, and secured by, the Indenture, as
amended by this Supplemental Indenture, will be $7,638,000, consisting of
$1,980,000 aggregate principal amount of First Mortgage Bonds, Series A,
3 3/8%, due September 1, 1971, $2,073,000 aggregate principal amount of First
Mortgage Bonds, Series B, 3%, due July 15, 1975, $1,095,000 aggregate
principal amount of First Mortgage Bonds, Series C, 3 3/8%, due July 15, 1975,
$1,500,000 aggregate principal amount of First Mortgage Bonds, Series D,
3 3/8%, due January 15, 1979 and $990,000 aggregate principal amount of First
Mortgage Bonds, Series E, 3%, due March 1, 1980.
SECTION 4.04. The Company, by the execution hereof, acknowledges
that true copies of this and the First, Second and Third Supplemental
Indentures have been delivered to and received by it.
SECTION 4.05. 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.
SECTION 4.06. 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 POWER AND LIGHT Company, 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 be its Secretary or an Assistant
Secretary, and CENTRAL HANOVER BANK
<PAGE>
24
AND TRUST COMPANY, party hereto of the second part, in evidence of its
acceptance of thee 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, all as of the day
and year first above written.
BLACK HILLS POWER AND LIGHT COMPANY,
(CORPORATE SEAL) J. B. FRENCH
President.
Attest:
B. B. NEEL
Secretary.
Signed sealed and delivered by
BLACK HILLS POWER AND LIGHT COMPANY
in the presence of:
EVELYN E. DIDIER
WALLACE H. LERE
CENTRAL HANOVER BANK AND TRUST COMPANY,
(CORPORATE SEAL) J. T. HARRIGAN
Vice-President.
Attest:
F. E. EGLY
Assistant Secretary.
Signed, sealed and delivered by
CENTRAL HANOVER BANK AND TRUST COMPANY
in the presence of:
R. P. McGUIRK
C. W. ANDERSON
$1,089 of United States Internal Revenue Stamps withy reference to the
Bonds of Series E, initially issued hereunder have been duly affixed to a
counterpart of the Original Indenture in the custody of the Trustee and duly
canceled as required by law.
<PAGE>
25
STATE OF SOUTH DAKOTA
ss.:
COUNTY OF PENNINGTON
On this the 1st day of May, 1950, before me, ETTA NEWKIRK, the
undersigned officer, personally appeared J. B. FRENCH, to me personally
known, who acknowledged himself to be, and being by me duly sworn, did say
that he is the President of BLACK HILLS POWER AND LIGHT COMPANY, 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 President and
sealed in behalf of the corporation by authority of its Board of Directors for
the purposes therein contained, and the said J. B. FRENCH acknowledged the
same as the free act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
ETTA NEWKIRK
Notary Public
My commission expires Jan. 23, 1952. (NOTARIAL SEAL)
STATE OF NEW YORK
ss.:
COUNTY OF NEW YORK
On this the 3rd day of May, 1950, before me, THOMAS F. MEARGHER, the
undersigned officer, personally appeared J. T. HARRIGAN, to me personally
known, who acknowledged himself to be, and being by me duly sworn, did say
that he is the Vice-President of CENTRAL HANOVER BANK AND TRUST COMPANY, 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 Vice-President and
sealed in behalf of the corporation by authority of its Board of Trustees for
the purposes therein contained, and the said J. T. HARRIGAN acknowledged the
same as the free act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my and and official seal.
THOMAS F. MEAGHER
Notary Public
My commission expires March 30, 1952.
THOMAS F. MEAGHER
Notary Public of the State of New York
No. 41-7878600
(NOTARIAL SEAL)
Qualified Queens County
Ctfs. filed with Queens, New York County Clks.
Queens, New York Register's Offices
Term Expires March 30, 1952
<PAGE>
[Conformed Copy]
================================================================================
BLACK HILLS POWER AND LIGHT COMPANY
TO
MANUFACTURERS HANOVER TRUST COMPANY,
As Trustee
----------
Nineteenth Supplemental Indenture
Dated as of February 15, 1977
----------
Supplemental to Indenture of Mortgage and
Deed of Trust Dated as of September 1, 1941
================================================================================
<PAGE>
NINETEENTH SUPPLEMENTAL INDENTURE, dated as of the 15th day of February,
1977, between 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 MANUFACTURERS HANOVER TRUST COMPANY,
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, which Supplemental Indentures are therein
and herein sometimes referred to, and are respectively dated, as follows:
<TABLE>
<S> <C>
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
</TABLE>
<PAGE>
2
<TABLE>
<S> <C>
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
</TABLE>
and the Company has also executed and delivered to said The Hanover Bank, as
Trustee, Subordination Agreements dated December 29, 1950 and September 19,
1955, also supplementing the Original Indenture which, as supplemented and
amended by said eighteen Supplemental Indentures and said Subordination
Agreements, is hereinafter referred to as the ``Indenture''; and
WHEREAS, pursuant to the provisions of the Indenture, First Mortgage Bonds,
Series D, 3 3/8%, due January 15, 1979, Series E, 3%, due March 1, 1980, Series
F, 3 7/8%, due March 1, 1982, Series G, 4%, due July 1, 1986, Series H, 5%, due
May 15, 1987, Series I, 4 7/8%, due May 1, 1989, Series J, 5 1/2%, due April 1,
1990, Series K, 5 3/8%, due August 1, 1990, Series L, 5 1/8%, due June 1, 1991,
Series M, 4 3/4%, due October 1, 1992, Series N, 4 1/2%, due May 1, 1993, Series
O, 7.80%, due June 1, 1999, Series P, 10.50%, due August 1, 2004 and Series Q,
11%, due July 15, 1985 have been duly issued and all or part of the Bonds of
each of said Series are presently outstanding and secured by the Indenture and
are hereinafter referred to collectively as the ``Bonds''; and
WHEREAS, the Company deems it advisable that the Indenture be amended as
herein provided and the holders of the requisite amount of the outstanding
Bonds issued under the Indenture have duly consented, pursuant to the
provisions of Section 18.11 of the Indenture, to the
<PAGE>
3
execution of this Supplemental Indenture and have lodged with the Trustee
instruments duly setting forth such consent; 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
Original 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 a Supplemental Indenture in the form hereof 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 amend certain provisions of the Indenture and the 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 Bonds as follows:
ARTICLE ONE
AMENDMENTS TO THE INDENTURE AND THE BONDS
SECTION 1.01. Paragraph D of Section 1.01 of Article One of the Original
Indenture is hereby amended by inserting the words ``the Chairman of the Board
or'' before the words ``the President'' wherever the latter words appear in
said Paragraph D.
SECTION 1.02. Section 2.07 of Article Two of the Original Indenture is
hereby amended by inserting the words ``its Chairman of the Board or'' before
the words ``its President'' where the latter words appear in said Section 2.07.
<PAGE>
4
SECTION 1.03. Paragraph O of Section 4.01 of Article Four of the Original
Indenture as amended by Section 3.04 of Article Three of the Third Supplemental
Indenture dated as of January 15, 1949 is hereby 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); (b) rentals, insurance,
current repairs and maintenance; and (c) provision for depreciation,
obsolescence, depletion and property renewals and replacements in an amount
not less than the greater of the following items (i) and (ii)
(i) the amount actually deducted on the books of the Company in
respect thereof; or
(ii) an amount equal to the amount of the excess of (a) 15% of
the Gross Utility Operating Revenues of the Company during such period,
after deducting from such Gross Utility Operating Revenues a sum equal
to the cost to the Company of electric energy purchased by the Company
during such period for resale, over (b) actual expenditures for
maintenance and repairs during such period;
but not including any interest to the extent that such interest constitutes
Interest Charges on Long-Term Debt as defined in Paragraph F of Section
4.02.
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
<PAGE>
5
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 disposi-
tion 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.
If any of the property of the Company shall have been owned by it
during a part, but not during the whole, of any period for which such
computation is to be made, or shall have been acquired by the Company after
the expiration of said period, and shall be subject to the direct lien of
this Indenture, the net earnings of such property during such part of such
period as shall have preceded the acquisition thereof by the Company shall
be included in the Gross Utility Operating Revenues for the purposes of this
Paragraph, but such net earnings shall be ascertained and computed by the
methods hereinabove in this Paragraph prescribed. In case, within or after
the particular period for which the computation is made, (i) the Company
shall have obtained the release of any property pursuant to the provisions
of Section 7.02 of a Fair Value in excess of $100,000 in any one case as
shown by the Certificate of the Company provided for in Paragraph B or C
of Section 7.02, or (ii) any property shall have been taken by the exercise
of the power of eminent domain or purchased in the manner specified in
Section 7.03 and the award for any such taking or the proceeds of any such
purchase shall have exceeded $100,000 in any one case, then and in any such
case the net earnings. estimated if necessary, of such property for the
whole of such period shall be excluded from the Certifiable Net Earnings for
the purposes of this Paragraph.
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
<PAGE>
6
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.''
SECTION 1.04. Paragraph F of Section 4.02 of Article Four of the Original
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 30 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 15 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
Long-Term 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 ease 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
<PAGE>
7
(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; and
(d) all other Funded Indebtedness as defined in Section
4.04 of the Seventeenth Supplemental Indenture hereto dated as of
July 15, 1975 as amended by Section 2.01 of the Eighteenth
Supplemental Indenture hereto dated as of May 1, 1976, other than
any such Funded Indebtedness which at such time shall be secured
by the pledge of any Bonds;
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 Long-Term Debt of the Company, set forth 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.
The Company covenants and agrees that if the annual Interest Charges
on the Long-Term Debt of the Company 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
<PAGE>
8
of said annual Interest Charges on the Long-Term Debt 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 the Long-
Term Debt 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 the Long-Term 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 Bonds at the time outstanding.''
SECTION 1.05. From and after February 1, 1977 all Bonds of Series D,
Series E, Series F, Series G, Series H, Series I, Series J, Series K, Series L,
Series M, Series N, Series O, Series P, and Series Q shall bear interest at the
increased rate per annum hereinafter set forth opposite the original interest
rate for each of such Series. Wherever in the Bonds of each such Series or in
the Supplemental Indenture creating Bonds of each such Series reference is made
to the rate of interest on the Bonds of such Series, the respective Bonds and
Supplemental Indenture are hereby amended to substitute the increased interest
rate in each and every place where the original interest rate for such Series
shall occur; provided, however, that such amendment shall become effective on
February 1, 1977 and in no event prior thereto.
<PAGE>
9
The amendment set forth in this Section applies to each of the
Supplemental Indentures set forth below:
<TABLE>
<CAPTION>
Supplemental Indenture Bonds Original Increased
Dated as of of Series Interest Rate Interest Rate
---------------------- --------- ------------- -------------
<S> <C> <C> <C> <C>
Third -January 15, 1949 D 3 3/8% 3 5/8%
Fourth -March 1, 1950 E 3 % 3 1/4%
Fifth -March 1, 1952 F 3 7/8% 4 1/8%
Sixth -July 1, 1956 G 4 % 4 1/4%
Seventh -May l, 1957 H 5 % 5 1/4%
Eighth -May 1, 1959 I 4 7/8% 5 1/8%
Ninth -April 1, 1960 J 5 1/2% 5 3/4%
Tenth -August 1, 1960 K 5 3/8% 5 5/8%
Eleventh -June 1, 1961 L 5 1/8% 5 3/8%
Twelfth -October 1, 1962 M 4 3/4% 5 %
Thirteenth -May 1, 1963 N 4 1/2% 4 3/4%
Fourteenth -June 1, 1969 O 7.80% 8.05%
Sixteenth -August 1, 1974 P 10.50% 10.75%
Seventeenth -July 15, 1975 Q 11 % 11.25%
</TABLE>
SECTION 1.06. Each Bond of Series D, Series E, Series F, Series G, Series
H, Series I, Series J, Series K, Series L, Series M, Series N, Series O, Series
P, or Series Q hereafter issued in exchange for or in place of any thereof
theretofore issued shall (unless textually revised as hereinafter provided) be
stamped or otherwise marked with a notation in the following form (the
appropriate blanks to be filled in so as to indicate for the Bonds of each such
Series the pertinent Supplemental Indenture, Series letter, increased interest
rate and amended designation):
``Pursuant to a certain Supplemental Indenture, dated as of February
15, 1977, modifying and amending the Original Indenture, dated as of
September 1, 1941, and the Supplemental Indenture, dated as of ,
pursuant to which this Bond of Series was issued, the rate of
interest payable on this Bond
<PAGE>
10
of Series from and after February 1, 1977, has been increased to
per annum, and the designation of this Bond has been changed to `First
Mortgage Bonds, Series , '. For a complete statement of the said
modifications and amendments effected by the said Supplemental Indenture, an
executed counterpart of which is on file at the principal office of
Manufacturers Hanover Trust Company, as Trustee, reference thereto is hereby
made.''
Any outstanding Bond of Series D, Series E, Series F, Series G, Series H,
Series I, Series J, Series K, Series L, Series M, Series N, Series O, Series
P or Series Q shall, if the holder thereof so demands, be stamped or otherwise
marked with a notation as aforesaid by or under the supervision of the Trustee
upon presentation thereof for the purpose at the principal office of the
Trustee.
If the Company or the Trustee shall so determine, new Bonds so textually
revised as, in the opinion of the Trustee and the Board of Directors of the
Company, to conform to the amendments of the Indenture and the Bonds provided
for in this Supplemental Indenture, shall be executed, authenticated and
delivered, and, upon the demand of the holders of any of the Bonds then
outstanding, shall be issued, without cost to such holders, in exchange for such
outstanding Bonds upon surrender of such Bonds with all unmatured coupons
appertaining thereto.
ARTICLE TWO
MISCELLANEOUS PROVISIONS
SECTION 2.01. The Company, by the execution hereof, acknowledges that a
true copy of this Supplemental Indenture has been delivered to and received by
it.
SECTION 2.02. 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.
SECTION 2.03. 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.
<PAGE>
11
IN WITNESS WHEREOF, BLACK HILLS POWER AND LIGHT COMPANY, party hereto of
the first part, has caused this Supplemental Indenture to be executed on its
behalf by the 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 MANUFACTURERS HANOVER TRUST COMPANY,
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, all as of the day and year first above written.
BLACK HILLS POWER AND LIGHT
COMPANY,
[CORPORATE SEAL]
By ROBERT G. ASHEIM
President.
Attest:
GEORGE T. LOCKE
Secretary.
Signed, sealed and delivered by
Black Hills Power and Light
Company in the presence of:
LOUISE S. KELLEY
GEORGE D. WEEDMAN
MANUFACTURERS HANOVER TRUST
COMPANY,
[CORPORATE SEAL]
By E. F. COCKINGS
Assistant Vice President.
Attest:
JAMES M. FOLEY
Assistant Secretary.
Signed, sealed and delivered by
Manufacturers Hanover Trust
Company in the presence of:
D. A. URSITTI, JR.
W. B. DODGE
<PAGE>
12
STATE OF SOUTH DAKOTA
ss.:
COUNTY OF PENNINGTON
On this 15th day of February, 1977, before me, MARY S. KELLER, the
undersigned officer, personally appeared ROBERT G. ASHEIM, to me personally
known, who acknowledged himself to be, and being by me duly sworn, did say that
he is President of BLACK HILLS POWER AND LIGHT COMPANY, 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, said corporation, by him, as such President and sealed in behalf of said
corporation by authority of its Board of Directors for the purposes therein
contained, and the said ROBERT G. ASHEIM acknowledged the same as the free act
and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
[NOTARIAL SEAL] MARY S. KELLER
Notary Public
My commission expires June 27, 1979
STATE OF NEW YORK
ss.:
COUNTY OF NEW YORK
On this 28th day of February, 1977, before me, MARY LEONARDI, the
undersigned officer, personally appeared E. F. COCKINGS, to me personally known,
who acknowledged himself to be, and being by me duly sworn, did say that he is
Assistant Vice President of MANUFACTURERS HANOVER TRUST COMPANY, 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, said corporation, by him, as such Assistant Vice President and sealed
in behalf of said corporation by its Board of Directors for the purposes therein
contained, and the said E. F. COCKINGS acknowledged the same as the free act and
deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
[NOTARIAL SEAL] MARY LEONARDI
Notary Public
MARY LEONARDI
Notary Public, State of New York
No. 40-7495520
Qualified in Putnam County
Certificate Filed in New York County
Commission Expires March 30, 1978
<PAGE>
[CONFORMED COPY]
==============================================================================
BLACK HILLS POWER AND LIGHT COMPANY
TO
MANUFACTURERS HANOVER TRUST COMPANY,
As Trustee
--------------------
TWENTIETH SUPPLEMENTAL INDENTURE
Dated as of April 1,1977
--------------------
Supplemental to Indenture of Mortgage and Deed of
Trust Dated as of September 1, 1941
===============================================================================
<PAGE>
TWENTIETH SUPPLEMENTAL INDENTURE, dated as of the 1st day
of April, 1977 between BLACK HILLS POWER AND LIGHT COMPANY a
corporation organized and existing under the laws of the State of South
Dakota (herein called the "Company"), party of the first part and
MANUFACTURERS HANOVER TRUST COMPANY, 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
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 l, 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 and February 15, 1977 and the
Company has also executed and delivered to said The Hanover Bank, as Trustee,
Subordination Agreements dated December 29, 1950 and September 19, 1955, also
supplementing the Original Indenture which, as supplemented and amended by
said nineteen Supplemental Indentures and said Subordination Agreements, is
hereinafter referred to as 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: Series D, 3 5/8%, due January 15, 1979, Series E, 3 1/4%,
due March 1, 1980, Series F, 4 1/8%, due March 1, 1982, Series G, 4 1/4%, due
July 1, 1986, Series H, 5 1/4%, due May 15, 1987, Series I, 5 1/8%, due May 1,
1989, Series J, 5 3/4%, due April 1, 1990, Series K, 5 5/8% due August 1,
1990, Series L, 5 3/8%, due June 1,
<PAGE>
1991, Series M, 5%, due October 1, 1992, Series N, 4 3/4%, due May 1, 1993,
Series O, 8.05%, due June 1, 1999, Series P, 10.75%, due August 1, 2004 and
Series Q, 11 1/4%, due July 15, 1985; and
WHEREAS, the Company has entered into an Agreement dated as of April
1, 1977 (the "Lawrence Agreement No. 1") with Lawrence County, South
Dakota ("Lawrence") a political subdivision of the State of South Dakota, for
the acquisition, construction, installation and equipping of certain
facilities for air and water pollution control purposes at the Kirk Electric
Generating Plant of the Company and an Agreement dated as of April 1, 1977
(the "Pennington Agreement No. 1") with Pennington County, South Dakota
("Pennington") also a political subdivision of the State of South Dakota,
for the acquisition, construction, installation and equipping of certain
facilities for air and water pollution control purposes at the Ben French
Electric Generating Plant of the Company and said pollution control facilities
will be financed through the issuance by each County of its respective
Pollution Control Revenue Bonds (Black Hills Power and Light Company Project)
Collateralized 1977 Series A (hereinafter respectively, the "Lawrence Series
A Bonds" and the "Pennington Series A Bonds" and, collectively, the
"County Series A Bonds") and in connection therewith the Company will
execute and deliver its First Mortgage Bonds of Series R and Series S
provided for and created by this Supplemental Indenture which will be pledged
by Lawrence and Pennington, respectively, to the trustee (the "County
Trustee") under each County's Indenture of Trust No. 1 dated as of April 1,
1977 (hereinafter, respectively, the "Lawrence Pollution Control Indenture"
and the "Pennington Pollution Control Indenture" and, collectively, the
"Pollution Control Indentures") providing for the issuance of the related
County's Series A Bonds with respect to said pollution control facilities, as
security for the payment of the principal of and premium, if any, and interest
on the related Series A Bonds; and
WHEREAS, the Company has entered into a further agreement dated as of
April 1, 1977 (the "Lawrence Agreement No. 2") with Lawrence, for the
acquisition, construction, installation and equipping of certain additional
facilities at the Kirk Electric Generating Plant of the Company and a further
agreement dated as of April 1, 1977 (the "Pennington Agreement No. 2") with
Pennington, for the acquisition,
<PAGE>
3
construction, installation and equipping of certain additional facilities
at the Ben French Electric Generating Plant of the Company and said
facilities will be financed through the issuance by each County of its
respective Industrial Development Revenue Bonds (Black Hills Power
and Light Company Project) Collateralized 1977 Series B (hereinafter
respectively, the "Lawrence Series B Bonds" and the "Pennington
Series B Bonds" and, collectively, the "County Series B Bonds")
and in connection therewith the Company will execute and deliver
its First Mortgage Bonds of Series T and Series U provided for and
created by this Supplemental Indenture which will be pledged by
Lawrence and Pennington, respectively, to the County Trustee under
the related County's Indenture of Trust No. 2 dated as of April 1, 1977
(hereinafter, respectively, the "Lawrence Revenue Bond Indenture"
and the "Pennington Revenue Bond Indenture" and, collectively, the
"Revenue Bond Indentures") providing for the issuance of the related
County's Series B Bonds with respect to said facilities, as security for
the payment of the principal of and premium, if any, and interest on
the related Series B Bonds; 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 R" (hereinafter
sometimes called the "Bonds of Series R"), "First Mortgage Bonds, Series S"
(hereinafter sometimes called the "Bonds of Series S"), "First Mortgage
Bonds, Series T" (hereinafter sometimes called the "Bonds of Series T") and
"First Mortgage Bonds, Series U" (hereinafter sometimes called the "Bonds
of Series U"), each in the form, having the characteristics and being
entitled to the benefits as in this Supplemental Indenture provided; 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 Original
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 Supplemental Indenture in the form hereof for the purposes herein
provided; and
<PAGE>
4
WHEREAS, the Company is about to issue, under the Indenture, as hereby
amended and supplemented, its Bonds of Series R in the principal amount of
$5,850,000 in fully registered form and without coupons and its Bonds of Series
S in the principal amount of $2,050,000 in fully registered form and without
coupons payable to the County Trustee, as assignee of Lawrence and Pennington
under the related Pollution Control Indenture. Said Bonds of Series R and
Series S will otherwise be non-transferable except as required to effect (i) a
transfer after an event of default under the related Pollution Control
Indenture in the course of the exercise of rights and remedies consequent upon
such event of default, or (ii) a transfer to a successor trustee under the
related Pollution Control Indenture; and
WHEREAS, the Company is about to issue, under the Indenture, as hereby
amended and supplemented, its Bonds of Series T in the principal amount of
$1,000,000 in fully registered form and without coupons and its Bonds of Series
U in the principal amount of $1,000,000 in fully registered form and without
coupons payable to the County Trustee, as assignee of Lawrence and Pennington
under the related Revenue Bond Indenture. Said Bonds of Series T and Series
U will otherwise be non-transferable except as required to effect (i) a
transfer after an event of default under the related Revenue Bond Indenture in
the course of the exercise of rights and remedies consequent upon such event of
default, or (ii) a transfer to a successor trustee under the related Revenue
Bond Indenture; 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
<PAGE>
5
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 Bonds of Series R, Series
S, Series T and Series U and 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 of Series R, Series S, Series T and Series U as
follows:
ARTICLE ONE
BONDS OF SERIES R, 6 5/8%
SECTION 1.01. There is hereby created a series of Bonds, known as and
entitled "First Mortgage Bonds Series R, 6 5/8%", due April 1, 2007, and the
form thereof shall be as provided in this Supplemental Indenture.
SECTION 1.02. The Bonds of Series R shall be evidenced by a single
registered bond in the principal amount and denomination of Five Million Eight
Hundred Fifty Thousand Dollars ($5,850,000) finally due April 1, 2007 but
payable in installments as follows:
<TABLE>
<CAPTION>
April 1 Principal April 1 Principal
Of the Year Amount Of the Year Amount
- ----------- --------- ----------- ---------
<S> <C> <C> <C>
1993 $500,000.00 2001 $500,000.00
1994 500,000.00 2002 500,000.00
1995 500,000.00 2003 170,000.00
1996 500,000.00 2004 170,000.00
1997 500,000.00 2005 170,000.00
1998 500,000.00 2006 170,000.00
1999 500,000.00 2007 170,000.00
2000 500,000.00
</TABLE>
The Bonds of Series R shall bear interest on the unpaid principal balance at
the rate of 6 5/8% per annum payable semi-annually on October l and April 1
commencing October 1, 1977 until due and payable and shall bear interest at
the rate of 6% per annum on any overdue principal and on any overdue
installment of interest (to the extent that payment of such interest is
enforceable under applicable law). April 1, 1977 shall be the date of
commencement of the first
<PAGE>
6
interest period for such Bonds. All such bonds shall be dated as provided in
Section 2.05 of the Original Indenture.
The single Bond of Series R shall be lettered R and numbered 1 and shall,
upon issuance, be delivered by the Company to and registered in the name of the
County Trustee and shall be transferable only as required to effect an
assignment thereof to a successor County Trustee. Bonds issued upon transfer
shall be lettered R and numbered from 2 upwards and issued in the same
$5,850,000 denomination but all payments of principal theretofore made on the
Bonds of Series R shall be duly noted thereon by the Trustee.
It is expected that the Company, pursuant to the Lawrence Agreement No. 1,
will furnish directly to the County Trustee at its principal corporate trust
office all funds required for any and all payments of principal of, and interest
and premium on, the Lawrence Series A Bonds (or that in lieu of any such payment
the Company or Lawrence will deposit with the County Trustee Lawrence Series A
Bonds for cancellation) and that corresponding payments of interest and of
installments of principal (including premiums if appropriate) on the Bonds of
Series R will automatically be effected in accordance with the provisions of the
Lawrence Agreement No. 1. Whenever payment or provision therefor has been made
in respect of the principal, premium, if any, or interest on all or any portion
of the Lawrence Series A Bonds in accordance with the Lawrence Pollution Control
Indenture, the corresponding principal installment, premium, if any, or interest
on the Bonds of Series R shall be deemed paid to the extent such payment or
provision therefor has been made. Unless payment then is or has been made as
above provided, payment of the principal of, and premium, if any, and interest
on the single Bond of Series R shall be made to the County Trustee for the
account of Lawrence in funds immediately available at said office of the County
Trustee, in each case on or prior to the due date for such payment. The Trustee
may at any and all times conclusively assume that the obligation of the Company
to make payments with respect to the principal of and premium, if any, and
interest on the Bonds of Series R, so far as such payments at the time have
become due, has been fully satisfied and discharged unless and until the Trustee
shall have received a written notice from the County Trustee signed by one of
its officers stating (i) that timely payment of principal of, or premium or
interest on,
<PAGE>
7
Bonds of Series R has not been made, (ii) that the Company is in arrears as to
the payments required to be made by it to the County Trustee pursuant to the
Lawrence Agreement No. 1 after giving effect to any available moneys in the
Bond Fund provided by the Lawrence Pollution Control Indenture and (iii) the
amount of the arrearage.
The County Trustee, by acceptance of the single Bond of Series R, shall
agree to make prompt notation thereon of all payments and prepayments on
account of principal thereof made or occurring under any provisions of the
Lawrence Agreement No. 1 or of this Supplemental Indenture, and to surrender
said Bond to the Trustee upon final payment thereof. If and to the extent
payment of the Lawrence Series A Bonds is deemed to have been made
pursuant to the terms of the Lawrence Pollution Control Indenture, payment of
the Bonds of Series R shall be deemed to have been made to the same extent.
The Trustee is hereby appointed Registrar in respect of the Bonds of Series
R, 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 Bonds
of Series R may be served.
SECTION 1.03. The text of the Bonds of Series R and the certificate of
authentication of the Trustee to be executed thereon, are to be substantially
in the following forms, respectively:
No. R ..... $5,850,000
BLACK HILLS POWER AND LIGHT COMPANY
FIRST MORTGAGE BOND SERIES R, 6 5/8%, DUE APRIL 1, 2007
BLACK HILLS POWER AND LIGHT COMPANY (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 NORTHWESTERN NATIONAL
BANK OF MINNEAPOLIS as trustee or its successor in trust (the "County
Trustee"), under an Indenture of Trust No. 1 dated as of April 1, 1977 (the
"Lawrence Pollution Control Indenture") between Lawrence County, South
Dakota and said County Trustee, FIVE MILLION EIGHT HUNDRED FIFTY THOUSAND
DOLLARS, ($5,850,000) payable in installments as follows:
<PAGE>
8
<TABLE>
<CAPTION>
April 1 Principal April 1 Principal
Of the Year Amount Of the Year Amount
- ----------- --------- ----------- ---------
<S> <C> <C> <C>
1993 $500,000.00 2001 $500,000.00
1994 500,000.00 2002 500,000.00
1995 500,000.00 2003 170,000.00
1996 500,000.00 2004 170,000.00
1997 500,000.00 2005 170,000.00
1998 500,000.00 2006 170,000.00
1999 500,000.00 2007 170,000.00
2000 500,000.00
</TABLE>
together with interest thereon from April 1, 1977 on the unpaid principal
amount of this Bond at the rate of 6 5/8% per annum until due and payable,
such interest to be paid semi-annually in arrears on October 1 and April 1 in
each year. Overdue principal and overdue installments of interest shall bear
interest at the rate of 6% per annum (to the extent that payment of such
interest is enforceable under applicable law).
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 l, 1941 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 and February 15,
1977 and subordination agreements dated December 29, 1950 and September 19, 1955
(hereinafter collectively called the "Indenture"), executed by the Company to
Manufacturers Hanover Trust Company (herein called the "Trustee"), as Trustee,
to which Indenture and all indentures 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 and of the Trustee and of the Company in respect of
such security, and
<PAGE>
9
the terms and conditions upon which said Bonds are and are to be issued and
secured.
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 per cent. in principal amount of the Bonds then
outstanding and entitled to consent, and of not less than sixty-six and
two-thirds per cent. 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 coupons 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, or which would modify, without the written consent of the Trustee,
the rights, duties or immunities of the Trustee.
As provided in said Indenture, said Bonds are issuable in series which may
vary as in said Indenture provided or permitted. This Bond is one of a series
of Bonds entitled "First Mortgage Bonds Series R".
Lawrence County, South Dakota (the "County") is issuing and selling, or
has issued and sold, its Pollution Control Revenue Bonds (Black Hills Power and
Light Company Project) Collateralized 1977 Series A (hereinafter called the
"Lawrence Series A Bonds") under and pursuant to the Lawrence Pollution
Control Indenture. This Bond of Series R is issued as a means of securing
payment of the purchase price of the Company's purchase from the County of
certain pollution control facilities pursuant to an Agreement of Sale No. 1
dated as of April 1, 1977 (the "Lawrence Agreement No. 1"). It is expected
that the Company will make all payments of principal of, and interest and
premium on, the Lawrence Series A Bonds directly to the County Trustee (or
that in lieu thereof the Company or Lawrence will deposit
<PAGE>
10
with the County Trustee Lawrence Series A Bonds for cancellation). All such
payments shall automatically constitute corresponding payments on the Bonds of
Series R in accordance with the provisions of the Lawrence Agreement No. 1.
The holder of this Bond by acceptance hereof agrees that whenever any
payment or prepayment on account of the principal of this Bond is made or
occurs under any provision of the Indenture, the Lawrence Agreement No. 1 or
the Lawrence Pollution Control Indenture, the holder hereof shall promptly note
on the Schedule of Payments of Principal, the Schedule of Prepayments of
Principal or the Schedule of Credits of Prepayments of Principal the date and
amount of each such payment or prepayment of principal, and shall promptly
notify the Trustee of the amount of each such payment and that the notation of
payment has been duly made, and further agrees to surrender this Bond to the
Trustee for cancellation when all principal of, premium, if any, and interest
on this Bond shall have been duly paid. The holder of this Bond further agrees
that if payment of the Lawrence Series A Bonds is deemed to have been made
pursuant to the provisions of the Lawrence Pollution Control Indenture, payment
of this Bond shall be deemed to have been made.
Unless payment then is or has been made pursuant to the foregoing
paragraph, the principal of and premium, if any, and interest on this Bond
will be paid in lawful money of the United States of America and will be
payable at the principal corporate trust office of the County Trustee to the
County Trustee for the account of Lawrence in immediately available funds at
said office of the County Trustee, in each case on or prior to the due date
for such payment. The holder of this Bond by acceptance hereof agrees that any
such payment of principal, premium or interest on this Bond shall be credited
as and used to make a corresponding payment of principal, premium or interest
on the Lawrence Series A Bonds.
This Bond is not prepayable prior to April 1, 1987, except that if at any
time (1) the Company shall elect to prepay installments payable under the
Lawrence Agreement No. 1 and to cause the Lawrence Series A Bonds to be
redeemed upon the occurrence of an event specified in Section 9.1 of the
Lawrence Agreement No. 1 or (2) the Company shall be obligated to prepay
installments payable under the Lawrence Agreement No. 1 and to cause the
Lawrence Series A Bonds to be redeemed upon the occurrence of an event
specified in Section 9.2 of the Lawrence Agreement No. 1, in any such event
this Bond shall be prepaid by the
<PAGE>
11
Company in whole, but not in part (except that upon the occurrence of an event
specified in paragraph (c) of Section 9.2 of the Lawrence Agreement No. 1
the Bond shall be prepaid in whole or in part) at 100% of the unpaid principal
amount thereof plus accrued interest to the prepayment date, which date shall
be the same date as the prepayment date under the Lawrence Agreement No. 1
determined as set forth in said Sections 9.1 and 9.2. The principal amount of
Bonds of Series R to be prepaid at any time upon the occurrence of the event
specified in paragraph (c) of Section 9.2 of the Lawrence Agreement No. 1 shall
be the same as the principal amount of Lawrence Series A Bonds to be redeemed
as the result of the occurrence of such event.
This Bond shall be prepaid by the Company on or after April 1, 1987, in
whole at any time or in part on any interest payment date, if but only if the
Company shall have elected to prepay installments under the Lawrence
Agreement No. 1 of like principal amount and to cause Lawrence Series A
Bonds of like principal amount to be redeemed on the prepayment date in
accordance with the second paragraph of Section 3.01 of the Lawrence Pollution
Control Indenture. Such prepayment shall be at the prepayment price determined
in accordance with the following table plus accrued interest to the prepayment
date:
<TABLE>
<CAPTION>
If prepayment date is during
twelve-month-period beginning Prepayment
April 1 Price
- ----------------------------- -----------
<S> <C>
1987.............................................. 103 %
1988.............................................. 102 1/2
1989.............................................. 102
1990.............................................. 101 1/2
1991.............................................. 101
1992.............................................. 100 1/2
1993 and thereafter ...............................100
</TABLE>
Except to the extent that the Company shall at any time elect, pursuant to
the provisions of the Lawrence Pollution Control Indenture, to apply as a
credit in respect of a sinking fund obligation thereunder an amount of
Lawrence Series A Bonds redeemed or purchased and delivered to the County
Trustee, any prepayment of only a part of this Bond shall be in inverse order
of the maturities of the several installment payments, e.g., all the portion
of this Bond due on April 1, 2007, must be prepaid before any installment
having an earlier maturity date. In the event that the Company at any time
elects, pursuant to
<PAGE>
12
the provisions of the Lawrence Pollution Control Indenture, to apply as a
credit in respect of a sinking fund obligation thereunder an amount of
Lawrence Series A Bonds redeemed or purchased and delivered to the County
Trustee, the corresponding prepayment of this Bond in the same principal
amount shall be credited against the installment due on this Bond in the same
year as such sinking fund obligation.
In each case where this Bond is to be prepaid in whole or in part as
contemplated herein notice of not less than thirty (30) nor more than sixty
(60) days shall be given by first class mail postage prepaid to the holder of
record of this Bond unless such notice has been waived in writing by the
County Trustee.
If an event of default as defined in the Indenture shall occur, the
principal of this Bond may become and be declared due and payable in the
manner and with the effect provided in the Indenture. No holder of this Bond
shall have any right to institute any suit or proceeding for the foreclosure
of the Indenture or for any other remedy thereunder, except to the extent and
in the manner set forth in the Indenture.
This Bond shall be non-transferable except as required to effect (i) a
transfer to any successor trustee under the Lawrence Pollution Control
Indenture or (ii) a transfer after an event of default under the Lawrence
Pollution Control Indenture in the course of the exercise of rights and
remedies consequent upon such event of default. Subject to such restrictions,
this Bond is transferable by the registered holder hereof in person or by
attorney duly authorized in writing, at the office of Manufacturers Hanover
Trust Company, New York, New York, on registry books kept for such purpose at
such office. No charge will be made by the Company for any such transfer of
this Bond. Before any transfer of this Bond by the County Trustee or attorney
duly authorized will be recognized or given effect by the Company or the
Trustee, the County Trustee shall note hereon the date to which interest has
been paid as well as the amounts of all principal payments and prepayments
hereon, and shall notify the Company and the Trustee of the name and address
of the transferee and shall afford the Company and the Trustee the opportunity
of verifying the notation as to payment of interest and principal.
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 agreement supplemental
<PAGE>
13
thereto against any subscriber to the capital stock, incorporator or any past,
present or future stockholder, officer or director of the Company or of any
predecessor or successor corporation, either directly or through the Company or
any predecessor or successor corporation or any receiver or trustee in
bankruptcy, whether by virtue of any constitution or statute or rule of law or
by the enforcement of any assessment or penalty or stock subscription or
otherwise, all such liability, whether at common law or in equity or by
statute or constitution or otherwise, being, to the extent permitted by law,
by the acceptance and as a part of the consideration for the issuance hereof,
expressly waived and released by the registered holder hereof.
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 said 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 POWER AND LIGHT COMPANY,
BY..................................
Attest: President.
......................................
Secretary.
(FORM OF TRUSTEE'S CERTIFICATE)
This is one of the Bonds, of the series designated therein, described in
the within mentioned Indenture.
MANUFACTURER HANOVER TRUST COMPANY,
as Trustee,
BY ..................................
Authorized Officer.
<PAGE>
14
SCHEDULE OF PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Amount of Date Date of Authorized Official
Installment Due Payment and Title
- ----------- ---- ------- -------------------
<S> <C> <C> <C>
</TABLE>
SCHEDULE OF PREPAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Principal Amount Authorized Official
Prepaid Date Prepaid and Title
- ---------------- ------------ ------------------
<S> <C> <C>
</TABLE>
SCHEDULE OF CREDITS OF PREPAYMENTS OF PRINCIPAL*
<TABLE>
<CAPTION>
Date of Installment
Prepaid Principal to which Authorized Official
Amount Credited Credited Date Credited and Title
- ----------------- ------------------- ------------- -------------------
<S> <C> <C> <C>
</TABLE>
________
*This Schedule to be completed only in the event that a prepayment is
credited against an installment maturing prior to the then last maturing
unpaid installment. Each prepayment is credited against the then last maturing
unpaid installment unless Lawrence Series A Bonds redeemed or purchased and
delivered to the County Trustee are credited against a sinking fund obligation
under the Lawrence Pollution Control Indenture, whereupon a corresponding
prepayment in the same principal amount shall be credited against the
installment due in the same year as such sinking fund obligation and entered
in this Schedule.
(NOTICE: The within Bond may not be transferred until this schedule has
been verified by the Trustee.)
<PAGE>
15
SECTION 1.04. The single Bond of Series R is not prepayable prior to April
1, 1987, except that if, at any time, (1) the Company shall elect to prepay
installments payable under the Lawrence Agreement No. 1 and to cause the
Lawrence Series A Bonds to be redeemed upon the occurrence of an event
specified in Section 9.1 of the Lawrence Agreement No. 1 or (2) the Company
shall be obligated to prepay installments payable under the Lawrence Agreement
No. 1 and to cause the Lawrence Series A Bonds to be redeemed upon the
occurrence of an event specified in Section 9.2 of the Lawrence Agreement No.
1, in any such event the Bonds of Series R shall be prepaid by the Company in
whole, but not in part (except that upon the occurrence of an event specified
in paragraph (c) of Section 9.2 of the Lawrence Agreement No. 1 the Bonds of
Series R shall be prepaid in whole or in part) at 100% of the unpaid principal
amount thereof plus accrued interest to the prepayment date, which date shall
be the same date as the prepayment date under the Lawrence Agreement No. 1
determined as set forth in said Sections 9.1 and 9.2. The principal amount of
Bonds of Series R to be prepaid at any time upon the occurrence of the event
specified in paragraph (c) of Section 9.2 of the Lawrence Agreement No. 1 shall
be the same as the principal amount of Lawrence Series A Bonds to be redeemed
as the result of the occurrence of such event.
The single Bond of Series R shall be prepaid by the Company on or after
April 1, 1987, in whole at any time or in part on any interest payment date, if
but only if the Company shall have elected to prepay installments under the
Lawrence Agreement No. I of like principal amount and to cause Lawrence Series
A Bonds of like principal amount to be redeemed on the prepayment date in
accordance with the second paragraph of Section 3.01 of the Lawrence Pollution
Control Indenture. Such prepayment shall be at the prepayment price
determined in accordance with the following table plus accrued interest to the
prepayment date:
<TABLE>
<CAPTION>
If the prepayment date is
during the twelve months Prepayment
beginning April 1 Price
------------------------- ----------
<S> <C>
1987......................................... 103 %
1988......................................... 102 1/2
1989......................................... 102
1990......................................... 101 1/2
1991......................................... 101
1992......................................... 100 1/2
1993 and thereafter ......................... 100
</TABLE>
<PAGE>
16
Except to the extent that the Company shall at any time elect, pursuant to
the provisions of the Lawrence Pollution Control Indenture, to apply as a
credit in respect of a sinking fund obligation thereunder an amount of
Lawrence Series A Bonds redeemed or purchased and delivered to the County
Trustee, any prepayment of only a part of the single Bond of Series R shall be
in inverse order of the maturities of the several installment payments, e.g.,
all the portion of the single Bond of Series R due on April 1, 2007, must be
prepaid before any installment having an earlier maturity date. In the event
that the Company at any time elects, pursuant to the provisions of the
Lawrence Pollution Control Indenture, to apply as a credit in respect of a
sinking fund obligation thereunder an amount of Lawrence Series A Bonds
redeemed or purchased and delivered to the County Trustee, the corresponding
prepayment of the single Bond of Series R in the same principal amount shall
be credited against the installment due on the single Bond of Series R in the
same year as such sinking fund obligation.
If Bonds of Series R are to be redeemed in whole or in part as
provided in this Section 1.04, notice of redemption shall be given by first
class mail, postage prepaid, by or on behalf of the Company, not less than
thirty (30) nor more than sixty (60) days prior to the date of redemption, to
the registered holders of all Bonds so to be redeemed, at their respective
addresses appearing upon the books maintained by the Trustee pursuant to
Section 2.10 of the Original Indenture. Any notice which is mailed as herein
provided shall be conclusively presumed to have been properly and sufficiently
given on the date of such mailing, whether or not the registered holder or
payee, as the case may be, receives the notice. In case of any redemption of
Bonds of such Series by the Trustee pursuant to the provisions of the
Indenture or any indenture supplemental thereto, notice of redemption shall be
given in a similar manner by the Trustee. Notwithstanding any provision of
Article Ten of the Original Indenture, no publication of notice of redemption
of any Bonds of Series R shall be required by the Indenture.
Except as provided in the immediately preceding paragraph, the provisions
of Article Ten of the Original Indenture shall in all respects apply to any
redemption to which this Section 1.04 applies. Nothing in
<PAGE>
17
this Section 1.04 contained shall affect the manner of giving notice of the
redemption of Bonds of the Company of any series other than Bonds of Series R.
Notwithstanding the provisions of the Original Indenture (including
particularly Section 8.08(b) thereof), the single Bond of Series R is subject
to redemption prior to maturity only upon the events and as set forth in this
Section 1.04.
ARTICLE TWO
BONDS OF SERIES S, 6 5/8%
SECTION 2.01. There is hereby created a series of Bonds, known as and
entitled "First Mortgage Bonds Series S, 6 5/8%", due April 1, 2007, and the
form thereof shall be as provided in this Supplemental Indenture.
SECTION 2.02. The Bonds of Series S shall be evidenced by a single
registered bond in the principal amount and denomination of Two Million Fifty
Thousand Dollars ($2,050,000) finally due April 1, 2007 but payable in
installments as follows:
<TABLE>
<CAPTION>
April 1 Principal April 1 Principal
Of the Year Amount Of the Year Amount
----------- --------- ----------- ---------
<S> <C> <C> <C>
1993........... $190,000.00 2001............. $190,000.00
1994........... 190,000.00 2002............. 190,000.00
1995........... 190,000.00 2003............. 30,000.00
1996........... 190,000.00 2004............. 30,000.00
1997........... 190,000.00 2005............. 30,000.00
1998........... 190,000.00 2006............. 30,000.00
1999........... 190,000.00 2007............. 30,000.00
2000........... 190,000.00
</TABLE>
<PAGE>
18
The Bonds of Series S shall bear interest on the unpaid principal balance
at the rate of 6 5/8% per annum payable semi-annually on October 1 and April 1
commencing October 1, 1977 until due and payable and shall bear interest at the
rate of 6% per annum on any overdue principal and on any overdue installment
of interest (to the extent that payment of such interest is enforceable under
applicable law). April 1, 1977 shall be the date of commencement of the first
interest period for such Bonds. All such bonds shall be dated as provided in
Section 2.05 of the Original Indenture.
The single Bond of Series S shall be lettered S and numbered 1 and shall,
upon issuance, be delivered by the Company to and registered in the name of the
County Trustee and shall be transferable only as required to effect an
assignment thereof to a successor County Trustee. Bonds issued upon transfer
shall be lettered S and numbered from 2 upwards and issued in the same
$2,050,000 denomination but all payments of principal theretofore made on the
Bonds of Series S shall be duly noted thereon by the Trustee.
It is expected that the Company, pursuant to the Pennington Agreement
No. 1, will furnish directly to the County Trustee at its principal corporate
trust office all funds required for any and all payments of principal of, and
interest and premium on, the Pennington Series A Bonds (or that in lieu of any
such payment the Company or Pennington will deposit with the County Trustee
Pennington Series A Bonds for cancellation) and that corresponding payments of
interest and of installments of principal (including premiums if appropriate)
on the Bonds of Series S will automatically be effected in accordance with the
provisions of the Pennington Agreement No. 1. Whenever payment or provisions
therefor has been made in respect of the principal, premium, if any, or
interest on all or any portion of the Pennington Series A Bonds in accordance
with the Pennington Pollution Control Indenture, the corresponding principal
installment, premium, if any, or interest on the Bonds of Series S shall be
deemed paid to the extent such payment or provision therefor has been made.
Unless payment then is or has been made as above provided, payment of the
principal of, and
<PAGE>
19
premium, if any, and interest on the single Bond of Series S shall be made to
the County Trustee for the account of Pennington in funds immediately
available at said office of the County Trustee, in each case on or prior to the
due date for such payment. The Trustee may at any and all times conclusively
assume that the obligation of the Company to make payments with respect to the
principal of and premium, if any, and interest on the Bonds of Series S, so far
as such payments at the time have become due, has been fully satisfied and
discharged unless and until the Trustee shall have received a written notice
from the County Trustee signed by one of its officers stating (i) that timely
payment of principal of, or premium or interest on, Bonds of Series S has not
been made, (ii) that the Company is in arrears as to the payments required to
be made by it to the County Trustee pursuant to the Pennington Agreement No. 1
after giving effect to any available moneys in the Bond Fund provided by the
Pennington Pollution Control Indenture and (iii) the amount of the arrearage.
The County Trustee, by acceptance of the single Bond of Series S, shall
agree to make prompt notation thereon of all payments and prepayments on
account of principal thereof made or occurring under any provisions of the
Pennington Agreement No. 1 or of this Supplemental Indenture, and to
surrender said Bond to the Trustee upon final payment thereof. If and to the
extent payment of the Pennington Series A Bonds is deemed to have been made
pursuant to the terms of the Pennington Pollution Control Indenture, payment of
the Bonds of Series S shall be deemed to have been made to the same extent.
The Trustee is hereby appointed Registrar in respect of the Bonds of
Series S, 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 Bonds of Series S may be served.
SECTION 2.03. The text of the Bonds of Series S, and the certificate
of authentication of the Trustee to be executed thereon, are to be
substantially in the following forms, respectively:
<PAGE>
20
No. S ........ $2,050,000
BLACK HILLS POWER AND LIGHT COMPANY
FIRST MORTGAGE BOND SERIES S, 6-5/8%, DUE APRIL 1, 2007
BLACK HILLS POWER AND LIGHT COMPANY (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 NORTHWESTERN NATIONAL BANK OF
MINNEAPOLIS as trustee or its successor in trust (the "County Trustee"),
under an Indenture of Trust No. 1 dated as of April 1, 1977 (the "Pennington
Pollution Control Indenture") between Pennington County, South Dakota and
said County Trustee, TWO MILLION FIFTY THOUSAND DOLLARS,($2,050,000) payable in
installments as follows:
<TABLE>
<CAPTION>
April 1 Principal April 1 Principal
Of the Year Amount Of the Year Amount
----------- --------- ----------- ----------
<S> <C> <C> <C>
1993............ $190,000.00 2001.............. $190,000.00
1994............. 190,000.00 2002.............. 190,000.00
1995............. 190,000.00 2003.............. 30,000.00
1996............. 190,000.00 2004.............. 30,000.00
1997............. 190,000.00 2005.............. 30,000.00
1998............. 190,000.00 2006.............. 30,000.00
1999............. 190,000.00 2007.............. 30,000.00
2000............. 190,000.00
</TABLE>
together with interest thereon from April 1, 1977 on the unpaid principal
amount of this Bond at the rate of 6 5/8% per annum until due and payable,
such interest to be paid semi-annually in arrears on October 1 and April 1 in
each year. Overdue principal and overdue installments of interest shall bear
interest at the rate of 6% per annum
<PAGE>
21
(to the extent that payment of such interest is enforceable under applicable
law).
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 as
supplemented and amended by Supplemental Indentures dated as of July l5, 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 and February 15, 1977 and subordination agreements
dated December 29, 1950 and September 19, 1955 (hereinafter collectively
called the "Indenture"), executed by the Company to Manufacturers Hanover
Trust Company (herein called the "Trustee"), as Trustee, to which Indenture
and all indentures 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 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.
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 per cent. in principal amount of the Bonds then
outstanding and entitled to consent, and of not less than sixty-six and
two-thirds per cent. 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
<PAGE>
22
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 coupons 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, or which would modify, without the written consent of the Trustee,
the rights, duties or immunities of the Trustee.
As provided in said Indenture, said Bonds are issuable in series which may
vary as in said Indenture provided or permitted. This Bond is one of a series of
Bonds entitled "First Mortgage Bonds Series S".
Pennington County, South Dakota (the "County") is issuing and selling, or
has issued and sold, its Pollution Control Revenue Bonds (Black Hills Power and
Light Company Project) Collateralized 1977 Series A (hereinafter called the
"Pennington Series A Bonds") under and pursuant to the Pennington Pollution
Control Indenture. This Bond of Series S is issued as a means of securing
payment of the purchase price of the Company's purchase from the County of
certain pollution control facilities pursuant to an Agreement of Sale No. 1
dated as of April 1, 1977 (the "Pennington Agreement No. 1"). It is expected
that the Company will make all payments of principal of, and interest and
premium on, the Pennington Series A Bonds directly to the County Trustee (or
that in lieu thereof the Company or Pennington will deposit with the County
Trustee Pennington Series A Bonds for cancellation). All such payments shall
automatically constitute corresponding payments on the Bonds of Series S in
accordance with the provisions of the Pennington Agreement No. 1. The holder of
this Bond by acceptance hereof agrees that whenever any payment or prepayment on
account of the principal of this Bond is made or occurs under any provision of
the Indenture, the Pennington Agreement No. 1 or the Pennington Pollution
Control Indenture, the holder hereof shall promptly note on the Schedule of
Payments of Principal, the Schedule of Prepayments of Principal or the Schedule
of Credits of Prepayments of Principal the date and amount of each such payment
or pre-
<PAGE>
23
payment of principal, and shall promptly notify the Trustee of the amount of
each such payment and that the notation of payment has been duly made, and
further agrees to surrender this Bond to the Trustee for cancellation when
all principal of, premium, if any, and interest on this Bond shall have been
duly paid. The holder of this Bond further agrees that if payment of the
Pennington Series A Bonds is deemed to have been made pursuant to the
provisions of the Pennington Pollution Control Indenture, payment of this Bond
shall be deemed to have been made.
Unless payment then is or has been made pursuant to the foregoing paragraph,
the principal of and premium, if any, and interest on this Bond will be paid in
lawful money of the United States of America and will be payable at the
principal corporate trust office of the County Trustee to the County Trustee for
the account of Pennington in immediately available funds at said office of the
County Trustee, in each case on or prior to the due date for such payment. The
holder of this Bond by acceptance hereof agrees that any such payment of
principal, premium or interest on this Bond shall be credited as and used to
make a corresponding payment of principal, premium or interest on the Pennington
Series A Bonds.
This Bond is not prepayable prior to April 1, 1987, except that if
at any time (1) the Company shall elect to prepay installments payable under
the Pennington Agreement No. 1 and to cause the Pennington Series A Bonds to be
redeemed upon the occurrence of an event specified in Section 9.1 of the
Pennington Agreement No. 1 or (2) the Company shall be obligated to prepay
installments payable under the Pennington Agreement No. 1 and to cause the
Pennington Series A Bonds to be redeemed upon the occurrence of an event
specified in Section 9.2 of the Pennington Agreement No. 1, in any such event
this Bond shall be prepaid by the Company in whole, but not in part (except
that upon the occurrence of an event specified in paragraph (c) of Section 9.2
of the Pennington Agreement No. 1 the Bond shall be prepaid in whole or in
part) at 100% of the unpaid principal amount thereof plus accrued interest to
the prepayment date, which date shall be the same date as the prepayment date
under the Pennington Agreement No. 1 determined as set forth in said Sections
9.1 and 9.2. The principal amount of Bonds of Series S to be prepaid at any
time upon
<PAGE>
24
the occurrence of the event specified in paragraph (c) of Section 9.2 of the
Pennington Agreement No. 1 shall be the same as the principal amount of
Pennington Series A Bonds to be redeemed as the result of the occurrence of
such event.
This Bond shall be prepaid by the Company on or after April 1, 1987, in
whole at any time or in part on any interest payment date, if but only if the
Company shall have elected to prepay installments under the Pennington
Agreement No. 1 of like principal amount and to cause Pennington Series A
Bonds of like principal amount to be redeemed on the prepayment date in
accordance with the second paragraph of Section 3.01 of the Pennington
Pollution Control Indenture. Such prepayment shall be at the prepayment price
determined in accordance with the following table plus accrued interest to the
prepayment date:
<TABLE>
<CAPTION>
If prepayment date is during
twelve-month period Prepayment
beginning April 1 Price
- ---------------------------- ----------
<S> <C>
1987.............................................. 103 %
1988.............................................. 102 1/2
1989.............................................. 102
1990.............................................. 101 1/2
1991.............................................. 101
1992.............................................. 100 1/2
1993 and thereafter ...............................100
</TABLE>
Except to the extent that the Company shall at any time elect, pursuant to
the provisions of the Pennington Pollution Control Indenture, to apply as a
credit in respect of a sinking fund obligation thereunder an amount of
Pennington Series A Bonds redeemed or purchased and delivered to the County
Trustee, any prepayment of only a part of this Bond shall be in inverse order of
the maturities of the several installment payments, e.g., all the portion of
this Bond due on April 1, 2007, must be prepaid before any installment having an
earlier maturity date. In the event that the Company at any time elects,
pursuant to the provisions of the Pennington Pollution Control Indenture, to
apply as a credit in respect of a sinking fund obligation thereunder an amount
of Pennington Series A Bonds redeemed or purchased and delivered to the County
Trustee, the corresponding prepayment of this Bond in the same principal amount
shall be credited against the installment due on this Bond in the same year as
such sinking fund obligation.
<PAGE>
25
In each case where this Bond is to be prepaid in whole or in part as
contemplated herein notice of not less than thirty (30) nor more than sixty
(60) days shall be given by first class mail postage prepaid to the holder of
record of this Bond unless such notice has been waived in writing by the
County Trustee.
If an event of default as defined in the Indenture shall occur, the
principal of this Bond may become and be declared due and payable in the manner
and with the effect provided in the Indenture. No holder of this Bond shall
have any right to institute any suit or proceeding for the foreclosure of the
Indenture or for any other remedy thereunder, except to the extent and in the
manner set forth in the Indenture.
This Bond shall be non-transferable except as required to effect (i) a
transfer to any successor trustee under the Pennington Pollution control
Indenture or (ii) a transfer after an event of default under the Pennington
Pollution Control Indenture in the course of the exercise of rights and
remedies consequent upon such event of default. Subject to such restrictions,
this Bond is transferable by the registered holder hereof in person or by
attorney duly authorized in writing, at the office of Manufacturers Hanover
Trust Company, New York, New York, on registry books kept for such purpose at
such office. No charge will be made by the Company for any such transfer of
this Bond. Before any transfer of this Bond by the County Trustee or attorney
duly authorized will be recognized or given effect by the Company or the
Trustee, the County Trustee shall note hereon the date to which interest has
been paid as well as the amounts of all principal payments and prepayments
hereon, and shall notify the Company and the Trustee of the name and address
of the transferee and shall afford the Company and the Trustee the opportunity
of verifying the notation as to payment of interest and principal.
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 agreement supplemental thereto against
any subscriber to the capital stock, incorporator or any past, present or
future stockholder, officer or director of the Company or of any predecessor
or successor corporation, either directly or through the Company or any
predecessor or successor corporation or any receiver or trustee in bankruptcy,
whether by virtue of any constitution or statute or rule of law or by the
enforcement of any assess-
<PAGE>
26
ment or penalty or stock subscription or otherwise, all such liability, whether
at common law or in equity or by statute or constitution or otherwise, being,
to the extent permitted by law, by the acceptance and as a part of the
consideration for the issuance hereof, expressly waived and released by the
registered holder hereof.
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 said 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 POWER AND LIGHT COMPANY,
BY..................................
Attest: President.
......................................
Secretary.
(FORM OF TRUSTEE'S CERTIFICATE)
This is one of the Bonds, of the series designated therein, described in
the within mentioned Indenture.
MANUFACTURERS HANOVER TRUST COMPANY,
as Trustee,
BY ..................................
Authorized Officer.
<PAGE>
27
SCHEDULE OF PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Amount of Date Date of Authorized Official
Installment Due Payment and Title
- ----------- ---- ------- -------------------
<S> <C> <C> <C>
</TABLE>
SCHEDULE OF PREPAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Principal Amount Authorized Official
Prepaid Date Prepaid and Title
- ---------------- ------------ -------------------
<S> <C> <C>
</TABLE>
SCHEDULE OF CREDITS OF
PREPAYMENTS OF PRINCIPAL*
<TABLE>
<CAPTION>
Date of Installment
Prepaid Principal to which Authorized Official
Amount Credited Credited Date Credited and Title
- ----------------- ------------------- ------------- -------------------
<S> <C> <C> <C>
</TABLE>
_________
*This Schedule to be completed only in the event that a prepayment is
credited against an installment maturing prior to the then last maturing
unpaid installment. Each prepayment is credited against the then last maturing
unpaid installment unless Pennington Series A Bonds redeemed or purchased and
delivered to the County Trustee are credited against a sinking fund obligation
under the Pennington Pollution Control Indenture, whereupon a corresponding
prepayment in the same principal amount shall be credited against the
installment due in the same year as such sinking fund obligation and entered
in this Schedule.
(NOTICE: The within Bond may not be transferred until this schedule has
been verified by the Trustee.)
<PAGE>
28
SECTION 2.04. The single Bond of Series S is not prepayable prior to April
1, 1987, except that if, at any time, (1) the Company shall elect to prepay
installments payable under the Pennington Agreement No. 1 and to cause the
Pennington Series A Bonds to be redeemed upon the occurrence of an event
specified in Section 9.1 of the Pennington Agreement No. 1 or (2) the Company
shall be obligated to prepay installments payable under the Pennington
Agreement No. 1 and to cause the Pennington Series A Bonds to be redeemed
upon the occurrence of an event specified in Section 9.2 of the Pennington
Agreement No. 1, in any such event the Bonds of Series S shall be prepaid by
the Company in whole, but not in part (except that upon the occurrence of an
event specified in paragraph (c) of Section 9.2 of the Pennington Agreement
No. 1 the Bonds of Series S shall be prepaid in whole or in part) at 100% of
the unpaid principal amount thereof plus accrued interest to the prepayment
date, which date shall be the same date as the prepayment date under the
Pennington Agreement No. 1 determined as set forth in said Sections 9.1 and
9.2. The principal amount of Bonds of Series S to be prepaid at any time upon
the occurrence of the event specified in paragraph (c) of Section 9.2 of the
Pennington Agreement No. 1 shall be the same as the principal amount of
Pennington Series A Bonds to be redeemed as the result of the occurrence of
such event.
The single Bond of Series S shall be prepaid by the Company on or after
April 1, 1987, in whole at any time or in part on any interest payment date, if
but only if the company shall have elected to prepay installments under the
Pennington Agreement No. 1 of like principal amount and to cause Pennington
Series A Bonds of like principal amount to be redeemed on the prepayment
date in accordance with the second paragraph of Section 3.01 of the
Pennington Pollution Control Indenture. Such prepayment shall be at the
prepayment price determined in accordance with the following table plus
accrued interest to the prepayment date:
<TABLE>
<CAPTION>
If the prepayment date is
during the twelve months Prepayment
beginning April 1 Price
------------------------- -----------
<S> <C>
1987......................................... 103 %
1988......................................... 102 1/2
1989......................................... 102
1990......................................... 101 1/2
1991......................................... 101
1992......................................... 100 1/2
1993 and thereafter ......................... 100
</TABLE>
<PAGE>
29
Except to the extent that the Company shall at any time elect, pursuant to
the provisions of the Pennington Pollution Control Indenture, to apply as a
credit in respect of a sinking fund obligation thereunder an amount of
Pennington Series A Bonds redeemed or purchased and delivered to the County
Trustee, any prepayment of only a part of the single Bond of Series S shall be
in inverse order of the maturities of the several installment payments, e.g.,
all the portion of the single Bond of Series S due on April 1, 2007, must be
prepaid before any installment having an earlier maturity date. In the event
that the Company at any time elects, pursuant to the provisions of the
Pennington Pollution Control Indenture, to apply as a credit in respect of a
sinking fund obligation thereunder an amount of Pennington Series A Bonds
redeemed or purchased and delivered to the County Trustee, the corresponding
prepayment of the single Bond of Series S in the same principal amount shall
be credited against the installment due on the single Bond of Series S in the
same year as such sinking fund obligation.
If Bonds of Series S are to be redeemed in whole or in part as provided in
this Section 2.04, notice of redemption shall be given by first class mail,
postage prepaid, by or on behalf of the Company, not less than thirty (30) nor
more than sixty (60) days prior to the date of redemption, to the registered
holders of all Bonds so to be redeemed, at their respective addresses
appearing upon the books maintained by the Trustee pursuant to Section 2.10 of
the Original Indenture. Any notice which is mailed as herein provided shall be
conclusively presumed to have been properly and sufficiently given on the date
of such mailing, whether or not the registered holder or payee, as the case
may be, receives the notice. In case of any redemption of Bonds of such Series
by the Trustee pursuant to the provisions of the Indenture or any indenture
supplemental thereto, notice of redemption shall be given in a similar manner
by the Trustee. Notwithstanding any provision of Article Ten of the Original
Indenture, no publication of notice of redemption of any Bonds of Series S
shall be required by the Indenture.
Except as provided in the immediately preceding paragraph, the provisions
of Article Ten of the Original Indenture shall in all respects apply to any
redemption to which this Section 2.04 applies. Nothing in this Section 2.04
contained shall affect the manner of giving notice of the redemption of Bonds
of the Company of any series other than Bonds of Series S.
<PAGE>
30
Notwithstanding the provisions of the Original Indenture (including
particularly Section 8.08 (b) thereof), the single Bond of Series S is subject
to redemption prior to maturity only upon the events and as set forth in this
Section 2.04.
ARTICLE THREE
BONDS OF SERIES T, 6 5/8%
SECTION 3.01. There is hereby created a series of Bonds, known as and
entitled "First Mortgage Bonds Series T, 6 5/8%", due April 1, 2007 and the form
thereof shall be as provided in this Supplemental Indenture.
SECTION 3.02. The Bonds of Series T shall be evidenced by a single
registered bond in the principal amount and denomination of One Million Dollars
($1,000,000) finally due April 1, 2007 but payable in installments as follows:
<TABLE>
<CAPTION>
April 1 Principal April 1 Principal
Of the Year Amount Of the Year Amount
----------- --------- ----------- ---------
<S> <C> <C> <C>
1993............ $80,000.00 2001.............. $80,000.00
1994............ 80,000.00 2002.............. 80,000.00
1995............ 80,000.00 2003.............. 40,000.00
1996............ 80,000.00 2004.............. 40,000.00
1997............ 80,000.00 2005.............. 40,000.00
1998............ 80,000.00 2006.............. 40,000.00
1999............ 80,000.00 2007.............. 40,000.00
2000............ 80,000.00
</TABLE>
The Bonds of Series T shall bear interest on the unpaid principal balance at
the rate of 6 5/8% per annum payable semi-annually on October 1 and April 1
commencing October 1, 1977 until due and payable and shall bear interest at
the rate of 6% per annum on any overdue principal and on any overdue
installment of interest (to the extent that payment of such interest is
enforceable under applicable law). April 1, 1977 shall be the date of
commencement of the first interest period for such Bonds. All such bonds shall
be dated as provided in Section 2.05 of the Original Indenture.
<PAGE>
31
The single Bond of Series T shall be lettered T and numbered 1 and shall,
upon issuance, be delivered by the Company to and registered in the name of the
County Trustee and shall be transferable only as required to effect an
assignment thereof to a successor County Trustee. Bonds issued upon transfer
shall be lettered T and numbered from 2 upwards and issued in the same
$1,000,000 denomination but all payments of principal theretofore made on the
Bonds of Series T shall be duly noted thereon by the Trustee.
It is expected that the Company pursuant to the Lawrence Agreement No.
2 will furnish directly to the County Trustee at its principal corporate trust
office all funds required for any and all payments of principal of, and
interest and premium on, the Lawrence Series B Bonds (or that in lieu of any
such payment the Company or Lawrence will deposit with the County Trustee
Lawrence Series B Bonds for cancellation) and that corresponding payments of
interest and of installments of principal (including premiums if appropriate)
on the Bonds of Series T will automatically be effected in accordance with the
provisions of the Lawrence Agreement No. 2. Whenever payment or provision
therefor has been made in respect of the principal, premium, if any, or
interest on all or any portion of the Lawrence Series B Bonds in accordance
with the Lawrence Revenue Bond Indenture, the corresponding principal
installment, premium, if any, or interest on the Bonds of Series T shall be
deemed paid to the extent such payment or provision therefor has been made.
Unless payment then is or has been made as above provided, payment of the
principal of, and premium, if any, and interest on the single Bond of Series T
shall be made to the County Trustee for the account of Lawrence in funds
immediately available at said office of the County Trustee, in each case on or
prior to the due date for such payment. The Trustee may at any and all times
conclusively assume that the obligation of the Company to make payments with
respect to the principal of and premium, if any, and interest on the Bonds of
Series T, so far as such payments at the time have become due, has been fully
satisfied and discharged unless and until the Trustee shall have received a
written notice from the County Trustee signed by one of its officers stating
(i) that timely payment of principal of, or premium or interest on, Bonds of
Series T has not been made, (ii) that the Company is in arrears as to the
payments required to be made by it to the County Trustee pursuant to the
Lawrence
<PAGE>
32
Agreement No. 2 after giving effect to any available moneys in the Bond Fund
provided by the Lawrence Revenue Bond Indenture and (iii) the amount of the
arrearage.
The County Trustee, by acceptance of the single Bond of Series T, shall
agree to make prompt notation thereon of all payments and prepayments on
account of principal thereof made or occurring under any provisions of the
Lawrence Agreement No. 2 or of this Supplemental Indenture, and to surrender
said Bond to the Trustee upon final payment thereof. If and to the extent
payment of the Lawrence Series B Bonds is deemed to have been made pursuant to
the terms of the Lawrence Revenue Bond Indenture, payment of the Bonds of
Series T shall be deemed to have been made to the same extent.
The Trustee is hereby appointed Registrar in respect of the Bonds of
Series T, 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 Bonds of Series T may be served.
SECTION 3.03. The text of the Bonds of Series T, and the certificate of
authentication of the Trustee to be executed thereon, are to be substantially
in the following forms, respectively.
No. T.......... $1,000,000
BLACK HILLS POWER AND LIGHT COMPANY
FIRST MORTGAGE BOND SERIES T, 6 5/8%, DUE APRIL 1, 2007
BLACK HILLS POWER AND LIGHT COMPANY (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 NORTHWESTERN
NATIONAL BANK OF MINNEAPOLIS as trustee or its successor in trust (the
"County Trustee"), under an Indenture of Trust No. 2 dated as of April 1,
1977 (the "Lawrence Revenue Bond Indenture") between Lawrence County, South
Dakota and said County Trustee, ONE MILLION DOLLARS, ($1,000,000) payable in
installments as follows:
<PAGE>
33
<TABLE>
<CAPTION>
April 1 Principal April 1 Principal
Of the Year Amount Of the Year Amount
----------- --------- ----------- ---------
<S> <C> <C> <C>
1993............ $80,000.00 2001.............. $80,000.00
1994............ 80,000.00 2002.............. 80,000.00
1995............ 80,000.00 2003.............. 40,000.00
1996............ 80,000.00 2004.............. 40,000.00
1997............ 80,000.00 2005.............. 40,000.00
1998............ 80,000.00 2006.............. 40,000.00
1999............ 80,000.00 2007.............. 40,000.00
2000............ 80,000.00
</TABLE>
together with interest thereon from April 1, 1977 on the unpaid principal
amount of this Bond at the rate of 6 5/8% per annum until due and payable, such
interest to be paid semi-annually in arrears on October 1 and April 1 in each
year. Overdue principal and overdue installments of interest shall bear
interest at the rate of 6% per annum (to the extent that payment of such
interest is enforceable under applicable law).
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 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 l, 1962, May l, 1963, June 1, 1969, June 15, 1974, August 1, 1974,
July 15, 1975, May 1, 1976 and February 15, 1977 and subordination agreements
dated December 29, 1950 and September 19, 1955 (hereinafter collectively
called the "Indenture"), executed by the Company to Manufacturers Hanover
Trust Company (herein called the "Trustee"), as Trustee, to which Indenture
and all indentures 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
<PAGE>
34
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.
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 per cent. in principal amount of the Bonds then
outstanding and entitled to consent, and of not less than sixty-six and
two-thirds per cent. 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 coupons 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, or which would modify, without the written consent of the Trustee,
the rights, duties or immunities of the Trustee.
As provided in said Indenture, said Bonds are issuable in series which may
vary as in said Indenture provided or permitted. This Bond is one of a series
of Bonds entitled "First Mortgage Bonds Series T".
Lawrence County, South Dakota (the "County") is issuing and selling, or
has issued and sold, its Industrial Development Revenue Bonds (Black Hills
Power and Light Company Project) Collateralized 1977 Series B (hereinafter
called the "Lawrence Series B Bonds") under and pursuant to the Lawrence
Revenue Bond Indenture. This Bond of Series T is issued as a means of securing
payment of the purchase price of the Company's purchase from the County of
certain facilities pursuant to an Agreement of Sale No. 2 dated as of April 1,
1977 (the "Lawrence Agreement No. 2"). It is expected that the Company will
make all payments of principal of, and interest and premium on, the Lawrence
Series B Bonds directly to the County Trustee (or that
<PAGE>
35
in lieu thereof the Company or Lawrence will deposit with the County Trustee
Lawrence Series B Bonds for cancellation). All such payments shall
automatically constitute corresponding payments on the Bonds of Series T in
accordance with the provisions of the Lawrence Agreement No. 2. The holder of
this Bond by acceptance hereof agrees that whenever any payment or prepayment
on account of the principal of this Bond is made or occurs under any provision
of the Indenture, the Lawrence Agreement No. 2 or the Lawrence Revenue Bond
Indenture, the holder hereof shall promptly note on the Schedule of Payments
of Principal, the Schedule of Prepayments of Principal or the Schedule of
Credits of Prepayments of Principal the date and amount of each such payment
or prepayment of principal, and shall promptly notify the Trustee of the
amount of each such payment and that the notation of payment has been duly
made, and further agrees to surrender this Bond to the Trustee for
cancellation when all principal of, premium, if any, and interest on this Bond
shall have been duly paid. The holder of this Bond further agrees that if
payment of the Lawrence Series B Bonds is deemed to have been made pursuant to
the provisions of the Lawrence Revenue Bond Indenture, payment of this Bond
shall be deemed to have been made.
Unless payment then is or has been made pursuant to the foregoing
paragraph, the principal of and premium, if any, and interest on this Bond will
be paid in lawful money of the United States of America and will be payable at
the principal corporate trust office of the County Trustee to the County
Trustee for the account of Lawrence in immediately available funds at said
office of the County Trustee, in each case on or prior to the due date for
such payment. The holder of this Bond by acceptance hereof agrees that any
such payment of principal, premium or interest on this Bond shall be credited
as and used to make a corresponding payment of principal, premium or interest
on the Lawrence Series B Bonds.
This Bond is not prepayable prior to April 1, 1987, except that if at any
time (1) the Company shall elect to prepay installments payable under the
Lawrence Agreement No. 2 and to cause the Lawrence Series B Bonds to be
redeemed upon the occurrence of an event specified in Section 9.1 of the
Lawrence Agreement No. 2 or (2) the Company shall be obligated to prepay
installments payable under the Lawrence Agreement No. 2 and to cause the
Lawrence Series B Bonds to be
<PAGE>
36
redeemed upon the occurrence of an event specified in Section 9.2 of the
Lawrence Agreement No. 2, in any such event this Bond shall be prepaid by the
Company in whole, but not in part (except that upon the occurrence of an event
specified in paragraph (c) of Section 9.2 of the Lawrence Agreement No. 2 the
Bond shall be prepaid in whole or in part) at of the unpaid principal amount
thereof plus accrued interest to the prepayment date, which date shall be the
same date as the prepayment date under the Lawrence Agreement No. 2 determined
as set forth in said Sections 9.1 and 9.2. The principal amount of Bonds of
Series T to be prepaid at any time upon the occurrence of the event specified
in paragraph (c) of Section 9.2 of the Lawrence Agreement No. 2 shall be the
same as the principal amount of Lawrence Series B Bonds to be redeemed as the
result of the occurrence of such event.
This Bond shall be prepaid by the Company on or after April 1, 1987, in
whole at any time or in part on any interest payment date, if but only if the
Company shall have elected to prepay installments under the Lawrence Agreement
No. 2 of like principal amount and to cause Lawrence Series B Bonds of like
principal amount to be redeemed on the prepayment date in accordance with the
second paragraph of Section 3.01 of the Lawrence Revenue Bond Indenture. Such
prepayment shall be at the prepayment price determined in accordance with the
following table plus accrued interest to the prepayment date:
<TABLE>
<CAPTION>
If prepayment date is during
twelve-month period beginning Prepayment
April 1 Price
- ----------------------------- ----------
<S> <C>
1987.............................................. 103 %
1988.............................................. 102 1/2
1989.............................................. 102
1990.............................................. 101 1/2
1991.............................................. 101
1992.............................................. 100 1/2
1993 and thereafter ...............................100
</TABLE>
Except to the extent that the Company shall at any time elect, pursuant to
the provisions of the Lawrence Revenue Bond Indenture, to apply as a credit in
respect of a sinking fund obligation thereunder an amount of Lawrence Series B
Bonds redeemed or purchased and delivered to the County Trustee, any
prepayment of only a part of this Bond shall be in inverse order of the
maturities of the several install-
<PAGE>
37
ment payments, e.g., all the portion of this Bond due on April 1, 2007, must
be prepaid before any installment having an earlier maturity date. In the
event that the Company at any time elects, pursuant to the provisions of the
Lawrence Revenue Bond Indenture, to apply as a credit in respect of a sinking
fund obligation thereunder an amount of Lawrence Series B Bonds redeemed or
purchased and delivered to the County Trustee, the corresponding prepayment of
this Bond in the same principal amount shall be credited against the
installment due on this Bond in the same year as such sinking fund obligation.
In each ease where this Bond is to be prepaid in whole or in part as
contemplated herein notice of not less than thirty (30) nor more than sixty
(60) days shall be given by first class mail postage prepaid to the holder of
record of this Bond unless such notice has been waived in writing by the
County Trustee.
If an event of default as defined in the Indenture shall occur, the
principal of this Bond may become and be declared due and payable in the
manner and with the effect provided in the Indenture. No holder of this Bond
shall have any right to institute any suit or proceeding for the foreclosure
of the Indenture or for any other remedy thereunder, except to the extent and
in the manner set forth in the Indenture.
This Bond shall be non-transferable except as required to effect (i)
a transfer to any successor trustee under the Lawrence Revenue Bond Indenture
or (ii) a transfer after an event of default under the Lawrence Revenue Bond
Indenture in the course of the exercise of rights and remedies consequent upon
such event of default. Subject to such restrictions, this Bond is transferable
by the registered holder hereof in person or by attorney duly authorized in
writing, at the office of Manufacturers Hanover Trust Company, New York, New
York, on registry books kept for such purpose at such office. No charge will
be made by the Company for any such transfer of this Bond. Before any
transfer of this Bond by the County Trustee or attorney duly authorized will
be recognized or given effect by the Company or the Trustee, the County
Trustee shall note hereon the date to which interest has been paid as well as
the amounts of all principal payments and prepayments hereon, and shall notify
the Company and the Trustee of the name and address of the transferee and
shall afford the Company and the Trustee the opportunity of verifying the
notation as to payment of interest and principal.
<PAGE>
38
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 agreement supplemental thereto against
any subscriber to the capital stock, incorporator or any past, present or
future stockholder, officer or director of the Company or of any predecessor
or successor corporation, either directly or through the Company or any
predecessor or successor corporation or any receiver or trustee in bankruptcy,
whether by virtue of any constitution or statute or rule of law or by the
enforcement of any assessment or penalty or stock subscription or otherwise,
all such liability, whether at common law or in equity or by statute or
constitution or otherwise, being, to the extent permitted by law, by the
acceptance and as a part of the consideration for the issuance hereof, waived
and released by the registered holder hereof.
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 said Indenture.
IS 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 POWER AND LIGHT COMPANY,
BY..................................
Attest: President.
......................................
Secretary.
(FORM OF TRUSTEE'S CERTIFICATE)
This is one of the Bonds, of the series designated therein, described in
the within mentioned Indenture.
MANUFACTURERS HANOVER TRUST COMPANY,
as Trustee,
BY ..................................
Authorized Officer.
<PAGE>
39
SCHEDULE OF PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Amount of Date Date of Authorized Official
Installment Due Payment and Title
- ----------- ---- ------- -------------------
<S> <C> <C> <C>
</TABLE>
SCHEDULE OF PREPAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Principal Amount Authorized Official
Prepaid Date Prepaid and Title
- ---------------- ------------ ------------------
<S> <C> <C>
</TABLE>
SCHEDULE OF CREDITS OF
PREPAYMENTS OF PRINCIPAL*
<TABLE>
<CAPTION>
Date of Installment
Prepaid Principal to which Authorized Official
Amount Credited Credited Date Credited and Title
- ----------------- ------------------- ------------- -------------------
<S> <C> <C> <C>
</TABLE>
________
*This Schedule to be completed only in the event that a prepayment is
credited against an installment maturing prior to the then last maturing
unpaid installment. Each prepayment is credited against the then last maturing
unpaid installment unless Lawrence Series B Bonds redeemed or purchased and
delivered to the County Trustee are credited against a sinking fund obligation
under the Lawrence Revenue Bond Indenture, whereupon a corresponding
prepayment in the same principal amount shall be credited against the
installment due in the same year as such sinking fund obligation and entered
in this Schedule.
(NOTICE: The within Bond may not be transferred until this schedule has
been verified by the Trustee.)
<PAGE>
40
SECTION 3.04. The single Bond of Series T is not prepayable prior to
April 1, 1987, except that if, at any time, (1) the Company shall elect to
prepay installments payable under the Lawrence Agreement No. 2 and to cause
the Lawrence Series B Bonds to be redeemed upon the occurrence of an event
specified in Section 9.1 of the Lawrence Agreement No. 2 or (2) the Company
shall be obligated to prepay installments payable under the Lawrence Agreement
No. 2 and to cause the Lawrence Series B Bonds to be redeemed upon the
occurrence of an event specified in Section 9.2 of the Lawrence Agreement No.
2, in any such event the Bonds of Series T shall be prepaid by the Company in
whole, but not in part (except that upon the occurrence of an event specified
in paragraph (c) of Section 9.2 of the Lawrence Agreement No. 2 the Bonds of
Series T shall be prepaid in whole or in part) at 100% of the unpaid principal
amount thereof plus accrued interest to the prepayment date, which date shall
be the same date as the prepayment date under the Lawrence Agreement No. 2
determined as set forth in said Sections 9.1 and 9.2. The principal amount of
Bonds of Series T to be prepaid at any time upon the occurrence of the event
specified in paragraph (c) of Section 9.2 of the Lawrence Agreement No. 2 shall
be the same as the principal amount of Lawrence Series B Bonds to be redeemed
as the result of the occurrence of such event.
The single Bond of Series T shall be prepaid by the Company on or after
April 1, 1987, in whole at any time or in part on any interest payment date, if
but only if the Company shall have elected to prepay installments under the
Lawrence Agreement No. 2 of like principal amount and to cause Lawrence Series
B Bonds of like principal amount to be redeemed on the prepayment date in
accordance with the second paragraph of Section 3.01 of the Lawrence Revenue
Bond Indenture. Such prepayment shall be at the prepayment price determined in
accordance with the following table plus accrued interest to the
prepayment date:
<TABLE>
<CAPTION>
If the prepayment date is
during the twelve months Prepayment
beginning April 1 Price
------------------------- ----------
<S> <C>
1987......................................... 103 %
1988......................................... 102 1/2
1989......................................... 102
1990......................................... 101 1/2
1991......................................... 101
1992......................................... 100 1/2
1993 and thereafter ......................... 100
</TABLE>
<PAGE>
41
Except to the extent that the Company shall at any time elect, pursuant to
the provisions of the Lawrence Revenue Bond Indenture, to apply as a credit in
respect of a sinking fund obligation thereunder an amount of Lawrence Series B
Bonds redeemed or purchased and delivered to the County Trustee, any
prepayment of only a part of the single Bond of Series T shall be in inverse
order of the maturities of the several installment payments, e.g., all the
portion of the single Bond of Series T due on April 1, 2007, must be prepaid
before any installment having an earlier maturity date. In the event that the
Company at any time elects, pursuant to the provisions of the Lawrence Revenue
Bond Indenture, to apply as a credit in respect of a sinking fund obligation
thereunder an amount of Lawrence Series B Bonds redeemed or purchased and
delivered to the County Trustee, the corresponding prepayment of the single
Bond of Series T in the same principal amount shall be credited against the
installment due on the single Bond of Series T in the same year as such
sinking fund obligation.
If Bonds of Series T are to be redeemed in whole or in part as provided in
this Section 3.04, notice of redemption shall be given by first class mail,
postage prepaid, by or on behalf of the Company, not less than thirty (30) nor
more than sixty (60) days prior to the date of redemption, to the registered
holders of all Bonds so to be redeemed, at their respective addresses
appearing upon the books maintained by the Trustee pursuant to Section 2.10 of
the Original Indenture. Any notice which is mailed as herein provided shall
be conclusively presumed to have been properly and sufficiently given on the
date of such mailing, whether or not the registered holder or payee, as the
case may be, receives the notice. In case of any redemption of Bonds of such
Series by the Trustee pursuant to the provisions of the Indenture or any
indenture supplemental thereto, notice of redemption shall be given in a
similar manner by the Trustee. Notwithstanding any provision of Article Ten of
the Original Indenture, no publication of notice of redemption of any Bond of
Series T shall be required by the Indenture.
Except as provided in the immediately preceding paragraph, the provisions
of Article Ten of the Original Indenture shall in all respects apply to any
redemption to which this Section 3.04 applies. Nothing in this Section 3.04
contained shall affect the manner of giving notice of the redemption of Bonds
of the Company of any series other than Bonds of Series T.
<PAGE>
42
Notwithstanding the provisions of the Original Indenture (including
particularly Section 8.08(b) thereof), the single Bond of Series T is subject
to redemption prior to maturity only upon the events and as set forth in this
Section 3.04.
ARTICLE FOUR
BONDS OF SERIES U, 6 5/8%
SECTION; 4.01. There is hereby created a series of Bonds, known as
and entitled ``First Mortgage Bonds Series U, 6 5/8%'', due April 1, 2007 and
the form thereof shall be as provided in this Supplemental Indenture.
SECTION 4.02. The Bonds of Series U shall be evidenced by a single
registered bond in the principal amount and denomination of One Million Dollars
($1,000,000) finally due April 1, 2007 but payable in installments as follows:
<TABLE>
<CAPTION>
April 1 Principal April 1 Principal
Of the Year Amount Of the Year Amount
----------- --------- ----------- ---------
<S> <C> <C> <C>
1993............ $80,000.00 2001.............. $80,000.00
1994............ 80,000.00 2002.............. 80,000.00
1995............ 80,000.00 2003.............. 40,000.00
1996............ 80,000.00 2004.............. 40,000.00
1997............ 80,000.00 2005.............. 40,000.00
1998............ 80,000.00 2006.............. 40,000.00
1999............ 80,000.00 2007.............. 40,000.00
2000............ 80,000.00
</TABLE>
The Bonds of Series U shall bear interest on the unpaid principal balance at
the rate of 6 5/8% per annum payable semi-annually on October 1 and April 1
commencing October 1, 1977 until due and payable and shall bear interest at
the rate of 6% per annum on any overdue principal and on any overdue
installment of interest (to the extent that payment of such interest is
enforceable under applicable law). April 1, 1977 shall be the date of
commencement of the first interest period for such Bonds. All such bonds shall
be dated as provided in Section 2.05 of the Original Indenture.
<PAGE>
43
The single Bond of Series U shall be lettered U and numbered 1 and shall,
upon issuance, be delivered by the Company to and registered in the name of the
County Trustee and shall be transferable only as required to effect an
assignment thereof to a successor County Trustee. Bonds issued upon transfer
shall be lettered U and numbered from 2 upwards and issued in the same
$1,000,000 denomination but all payments of principal theretofore made on the
Bonds of Series U shall be duly noted thereon by the Trustee.
It is expected that the Company pursuant to the Pennington Agreement
No. 2 will furnish directly to the County Trustee at its principal corporate
trust office all funds required for any and all payments of principal of, and
interest and premium on, the Pennington Series B Bonds (or that in lieu of any
such payment the Company or Pennington will deposit with the County Trustee
Pennington Series B Bonds for cancellation) and that corresponding payments of
interest and of installments of principal (including premiums if appropriate)
on the Bonds of Series U will automatically be effected in accordance with the
provisions of the Pennington Agreement No. 2. Whenever payment or provision
therefor has been made in respect of the principal, premium, if any, or
interest on all or any portion of the Pennington Series B Bonds in accordance
with the Pennington Revenue Bond Indenture, the corresponding principal
installment, premium, if any, or interest on the Bonds of Series U shall be
deemed paid to the extent such payment or provision therefor has been made.
Unless payment then is or has been made as above provided, payment of the
principal of, and premium, if any, and interest on the single Bond of Series U
shall be made to the County Trustee for the account of Pennington in funds
immediately available at said office of the County Trustee, in each case on or
prior to the due date for such payment. The Trustee may at any and all times
conclusively assume that the obligation of the Company to make payments with
respect to the principal of and premium, if any, and interest on the Bonds of
Series U, so far as such payments at the time have become due, has been fully
satisfied and discharged unless and until the Trustee shall have received a
written notice from the County Trustee signed by one of its officers stating
(i) that timely payment of principal of, or premium or interest on, Bonds of
Series U has not been made, (ii) that the Company is in arrears as to the
payments required to be made by it to the County
<PAGE>
44
Trustee pursuant to the Pennington Agreement No. 2 after giving effect to any
available moneys in the Bond Fund provided by the Pennington Revenue Bond
Indenture and (iii) the amount of the arrearage.
The County Trustee, by acceptance of the single Bond of Series U,
shall agree to make prompt notation thereon of all payments and prepayments on
account of principal thereof made or occurring under any provisions of the
Pennington Agreement No. 2 or of this Supplemental Indenture, and to surrender
said Bond to the Trustee upon final payment thereof. If and to the extent
payment of the Pennington Series B Bonds is deemed to have been made pursuant
to the terms of the Pennington Revenue Bond Indenture, payment of the Bonds of
Series U shall be deemed to have been made to the same extent.
The Trustee is hereby appointed Registrar in respect of the Bonds of Series
U, 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 Bonds of
Series U may be served.
SECTION 4.03. The text of the Bonds of Series U, and the certificate of
authentication of the Trustee to be executed thereon, are to be substantially
in the following forms, respectively.
No. U......... $1,000,000
BLACK HILLS POWER AND LIGHT COMPANY
FIRST MORTGAGE BOND SERIES U, 6 5/8%, DUE APRIL 1, 2007
BLACK HILLS POWER AND LIGHT COMPANY (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 NORTHWESTERN
NATIONAL BANK OF MINNEAPOLIS as trustee or its successor in trust (the
"County Trustee"), under an Indenture of Trust No. 2 dated as of April 1,
1977 (the "Pennington Revenue Bond Indenture") between Pennington County,
South Dakota and said County Trustee, ONE MILLION DOLLARS, ($1,000,000)
payable in installments as follows:
<PAGE>
45
<TABLE>
<CAPTION>
April 1 Principal April 1 Principal
Of the Year Amount Of the Year Amount
----------- --------- ----------- ---------
<S> <C> <C> <C>
1993............ $80,000.00 2001.............. $80,000.00
1994............ 80,000.00 2002.............. 80,000.00
1995............ 80,000.00 2003.............. 40,000.00
1996............ 80,000.00 2004.............. 40,000.00
1997............ 80,000.00 2005.............. 40,000.00
1998............ 80,000.00 2006.............. 40,000.00
1999............ 80,000.00 2007.............. 40,000.00
2000............ 80,000.00
</TABLE>
together with interest thereon from April 1, 1977 on the unpaid principal
amount of this Bond at the rate of 6 5/8% per annum until due and payable, such
interest to be paid semi-annually in arrears on October 1 and April 1 in each
year. Overdue principal and overdue installments of interest shall bear
interest at the rate of 6% per annum (to the extent that payment of such
interest is enforceable under applicable law).
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 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 and February 15, 1977 and subordination agreements
dated December 29, 1950 and September 19, 1955 (hereinafter collectively called
the "Indenture"), executed by the Company to Manufacturers Hanover Trust
Company (herein called the "Trustee"), as Trustee, to which Indenture and all
indentures 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
<PAGE>
46
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.
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 per cent. in principal amount of the Bonds then
outstanding and entitled to consent, and of not less than sixty-six and
two-thirds per cent. 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 coupons 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, or which would modify, without the written consent of the Trustee,
the rights, duties or immunities of the Trustee.
As provided in said Indenture, said Bonds are issuable in series which may
vary as in said Indenture provided or permitted. This Bond is one of a series
of Bonds entitled "First Mortgage Bonds Series U".
Pennington County, South Dakota (the "County") is issuing and selling,
or has issued and sold, its Industrial Development Revenue Bonds (Black Hills
Power and Light Company Project) Collateralized 1977 Series B (hereinafter
called the "Pennington Series B Bonds") under and pursuant to the
Pennington Revenue Bond Indenture. This Bond of Series U is issued as a means
of securing payment of the purchase price of the Company's purchase from the
County of certain facilities pursuant to an Agreement of Sale No. 2 dated as
of April 1, 1977 (the "Pennington Agreement No. 2"). It is expected that the
Company will make all payments of principal of, and interest and premium on,
the Pennington Series B Bonds directly to the County Trustee (or that in lieu
thereof the Company or Pennington will deposit
<PAGE>
47
with the County Trustee Pennington Series B Bonds for cancellation). All such
payments shall automatically constitute corresponding payments on the Bonds of
Series U in accordance with the provisions of the Pennington Agreement No. 2.
The holder of this Bond by acceptance hereof agrees that whenever any payment
or prepayment on account of the principal of this Bond is made or occurs under
any provision of the Indenture, the Pennington Agreement No. 2 or the
Pennington Revenue Bond Indenture, the holder hereof shall promptly note on the
Schedule of Payments of Principal, the Schedule of Prepayments of Principal or
the Schedule of Credits of Prepayments of Principal the date and amount of each
such payment or prepayment of principal, and shall promptly notify the Trustee
of the amount of each such payment and that the notation of payment has been
duly made, and further agrees to surrender this Bond to the Trustee for
cancellation when all principal of, premium, if any, and interest on this Bond
shall have been duly paid. The holder of this Bond further agrees that if
payment of the Pennington Series B Bonds is deemed to have been made pursuant
to the provisions of the Pennington Revenue Bond Indenture, payment of this Bond
shall be deemed to have been made.
Unless payment then is or has been made pursuant to the foregoing
paragraph, the principal of and premium, if any, and interest on this Bond will
be paid in lawful money of the United States of America and will be payable at
the principal corporate trust office of the County Trustee to the County
Trustee for the account of Pennington in immediately available funds at said
office of the County Trustee, in each case on or prior to the due date for
such payment. The holder of this Bond by acceptance hereof agrees that any
such payment of principal, premium or interest on this Bond shall be credited
as and used to make a corresponding payment of principal, premium or interest
on the Pennington Series B Bonds.
This Bond is not prepayable prior to April 1, 1987, except that if at any
time (1) the Company shall elect to prepay installments payable under the
Pennington Agreement No. 2 and to cause the Pennington Series B Bonds to be
redeemed upon the occurrence of an event specified in Section 9.1 of the
Pennington Agreement No. 2 or (2) the Company shall he obligated to prepay
installments payable under the Pennington Agreement No. 2 and to cause the
Pennington Series B Bonds to be redeemed upon the occurrence of an event
specified in Sec-
<PAGE>
48
tion 9.2 of the Pennington Agreement No. 2, in any such event this Bond shall be
prepaid by the Company in whole, but not in part (except that upon the
occurrence of an event specified in paragraph (c) of Section 9.2 of the
Pennington Agreement No. 2 the Bond shall be prepaid in whole or in part) at
100% of the unpaid principal amount thereof plus accrued interest to the
prepayment date, which date shall be the same date as the prepayment date under
the Pennington Agreement No. 2 determined as set forth in said Sections 9.1 and
9.2. The principal amount of Bonds of Series U to be prepaid at any time upon
the occurrence of the event specified in paragraph (c) of Section 9.2 of the
Pennington Agreement No. 2 shall be the same as the principal amount of
Pennington Series B Bonds to be redeemed as the result of the occurrence of such
event.
This Bond shall be prepaid by the Company on or after April 1, 1987, in
whole at any time or in part on any interest payment date, if but only if the
Company shall have elected to prepay installments under the Pennington
Agreement No. 2 of like principal amount and to cause Pennington Series B
Bonds of like principal amount to be redeemed on the prepayment date in
accordance with the second paragraph of Section 3.01 of the Pennington Revenue
Bond Indenture. Such prepayment shall be at the prepayment price determined in
accordance with the following table plus accrued interest to the prepayment
date:
<TABLE>
<CAPTION>
If prepayment date is during
twelve-month-period beginning Prepayment
April 1 Price
- ----------------------------- ----------
<S> <C>
1987.............................................. 103 %
1988.............................................. 102 1/2
1989.............................................. 102
1990.............................................. 101 1/2
1991.............................................. 101
1992.............................................. 100 1/2
1993 and thereafter ...............................100
</TABLE>
Except to the extent that the Company shall at any time elect, pursuant to
the provisions of the Pennington Revenue Bond Indenture, to apply as a credit
in respect of a sinking fund obligation thereunder an amount of Pennington
Series B Bonds redeemed or purchased
<PAGE>
49
and delivered to the County Trustee, any prepayment of only a part of this Bond
shall be in inverse order of the maturities of the several installment
payments, e.g., all the portion of this Bond due on April 1, 2007, must be
prepaid before any installment having an earlier maturity date. In the event
that the Company at any time elects, pursuant to the provisions of the
Pennington Revenue Bond Indenture, to apply as a credit in respect of a
sinking fund obligation thereunder an amount of Pennington Series B Bonds
redeemed or purchased and delivered to the County Trustee, the corresponding
prepayment of this Bond in the same principal amount shall be credited against
the installment due on this Bond in the same year as such sinking fund
obligation.
In each case where this Bond is to be prepaid in whole or in part as
contemplated herein notice of not less than thirty (30) nor more than sixty
(60) days shall be given by first class mail postage prepaid to the holder of
record of this Bond unless such notice has been waived in writing by the
County Trustee.
If an event of default as defined in the Indenture shall occur, the
principal of this Bond may become and be declared due and payable in the
manner and with the effect provided in the Indenture. No holder of this Bond
shall have any right to institute any suit or proceeding for the foreclosure
of the Indenture or for any other remedy thereunder, except to the extent and
in the manner set forth in the Indenture.
This Bond shall be non-transferable except as required to effect (i) a
transfer to any successor trustee under the Pennington Revenue Bond Indenture
or (ii) a transfer after an event of default under the Pennington Revenue Bond
Indenture in the course of the exercise of rights and remedies consequent upon
such event of default. Subject to such restrictions, this Bond is transferable
by the registered holder hereof in person or by attorney duly authorized in
writing, at the office of Manufacturers Hanover Trust Company, New York, New
York, on registry books kept for such purpose at such office. No charge will
be made by the Company for any such transfer of this Bond. Before any transfer
of this Bond by the County Trustee or attorney duly authorized will be
recognized or given effect by the Company or the Trustee, the County Trustee
shall note hereon the date to which interest has been paid as well as the
amounts of all principal payments and prepayments hereon, and shall notify the
Company and the Trustee of the name and
<PAGE>
50
address of the transferee and shall afford the Company and the Trustee the
opportunity of verifying the notation as to payment of interest and principal.
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 agreement supplemental thereto against
any subscriber to the capital stock, incorporator or any past, present or
future stockholder, officer or director of the Company or of any predecessor
or successor corporation, either directly or through the Company or any
predecessor or successor corporation or any receiver or trustee in bankruptcy,
whether by virtue of any constitution or statute or rule of law or by the
enforcement of any assessment or penalty or stock subscription or otherwise,
all such liability, whether at common law or in equity or by statute or
constitution or otherwise, being, to the extent permitted by law, by the
acceptance and as a part of the consideration for the issuance hereof,
expressly waived and released by the registered holder hereof.
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 said 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 POWER AND LIGHT COMPANY,
By..................................
Attest: President.
......................................
Secretary.
<PAGE>
51
(FORM OF TRUSTEE'S CERTIFICATE)
This is one of the Bonds, of the series designated therein, described in
the within mentioned Indenture.
MANUFACTURERS HANOVER TRUST COMPANY,
as Trustee,
By ..................................
Authorized Officer.
SCHEDULE OF PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Amount of Date Date of Authorized Official
Installment Due Payment and Title
- ----------- ---- ------- -------------------
<S> <C> <C> <C>
</TABLE>
SCHEDULE OF PREPAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Principal Amount Authorized Official
Prepaid Date Prepaid and Title
- ---------------- ------------ ------------------
<S> <C> <C>
</TABLE>
<PAGE>
52
SCHEDULE OF CREDITS OF PREPAYMENTS OF PRINCIPAL*
<TABLE>
<CAPTION>
Date of Installment
Prepaid Principal to which Authorized Official
Amount Credited Credited Date Credited and Title
- ----------------- ------------------- ------------- -------------------
<S> <C> <C> <C>
</TABLE>
________
*This Schedule to be completed only in the event that a prepayment is credited
against an installment maturing prior to the then last maturing unpaid
installment. Each prepayment is credited against the then last maturing unpaid
installment unless Pennington Series B Bonds redeemed or purchased and
delivered to the County Trustee are credited against a sinking fund obligation
under the Pennington Revenue Bond Indenture, whereupon a corresponding
prepayment in the same principal amount shall be credited against the
installment due in the same year as such sinking fund obligation and entered
in this Schedule.
(Notice: The within Bond may not be transferred until this schedule has
been verified by the Trustee.)
SECTION 4.04. The single Bond of Series U is not prepayable prior
to April 1, 1987, except that if, at any time, (1) the Company shall elect to
prepay installments payable under the Pennington Agreement No. 2 and to cause
the Pennington Series B Bonds to be redeemed upon the occurrence of an event
specified in Section 9.1 of the Pennington Agreement No. 2 or (2) the Company
shall be obligated to prepay installments payable under the Pennington
Agreement No. 2 and to cause the Pennington Series B Bonds to be redeemed upon
the occurrence of an event specified in Section 9.2 of the Pennington
Agreement No. 2, in any such event the Bonds of Series U shall be prepaid by
the Company in whole, but not in part (except that upon the occurrence of an
event specified in paragraph (c) of Section 9.2 of the Pennington Agreement
No. 2 the Bonds of Series U shall be prepaid in whole or in part) at 100% of the
unpaid principal amount thereof plus accrued interest to the prepayment date,
which date shall be the same date as the prepayment date under the Pennington
Agreement No. 2 determined as set forth in said Sections 9.1 and 9.2. The
principal amount of Bonds of Series U to be prepaid at any time upon the
occurrence of the event specified in para-
<PAGE>
53
graph (c) of Section 9.2 of the Pennington Agreement No. 2 shall be the same
as the principal amount of Pennington Series B Bonds to be redeemed as the
result of the occurrence of such event.
The single Bond of Series U shall be prepaid by the Company on or after
April 1, 1987, in whole at any time or in part on any interest payment date, if
but only if the Company shall have elected to prepay installments under the
Pennington Agreement No. 2 of like principal amount and to cause Pennington
Series B Bonds of like principal amount to be redeemed on the prepayment date
in accordance with the second paragraph of Section 3.01 of the Pennington
Revenue Bond Indenture. Such prepayment shall be at the prepayment price
determined in accordance with the following table plus accrued interest to
the prepayment date:
<TABLE>
<CAPTION>
If the prepayment date is
during the twelve months Prepayment
beginning April 1 Price
------------------------- ----------
<S> <C>
1987......................................... 103 %
1988......................................... 102 1/2
1989......................................... 102
1990......................................... 101 1/2
1991......................................... 101
1992......................................... 100 1/2
1993 and thereafter ......................... 100
</TABLE>
Except to the extent that the Company shall at any time elect, pursuant to
the provisions of the Pennington Revenue Bond Indenture, to apply as a credit
in respect of a sinking fund obligation thereunder an amount of Pennington
Series B Bonds redeemed or purchased and delivered to the County Trustee, any
prepayment of only a part of the single Bond of Series U shall be in inverse
order of the maturities of the several installment payments, e.g., all the
portion of the single Bond of Series U due on April 1, 2007, must be prepaid
before any installment having an earlier maturity date. In the event that the
Company at any time elects, pursuant to the provisions of the Pennington
Revenue Bond Indenture, to apply as a credit in respect of a sinking fund
obligation thereunder an amount of Pennington Series B Bonds redeemed or
purchased and delivered to the County Trustee, the corresponding prepayment of
the single Bond of Series U in the same principal amount shall be credited
against the installment due on the single Bond of Series U in the same year
as such sinking fund obligation.
<PAGE>
54
If Bonds of Series U are to be redeemed in whole or in part as provided
in this Section 4.04, notice of redemption shall be given by first class mail,
postage prepaid, by or on behalf of the Company, not less than thirty (30) nor
more than sixty (60) days prior to the date of redemption, to the registered
holders of all Bonds so to be redeemed, at their respective addresses
appearing upon the book maintained by the Trustee pursuant to Section 2.10 of
the Original Indenture. Any notice which is mailed as herein provided shall be
conclusively presumed to have been properly and sufficiently given on the date
of such mailing, whether or not the registered holder or payee, as the case
may be, receives the notice. In case of any redemption of Bonds of such Series
by the Trustee pursuant to the provisions of the Indenture or any indenture
supplemental thereto, notice of redemption shall be given in a similar manner
by the Trustee. Notwithstanding any provision of Article Ten of the Original
Indenture, no publication of notice of redemption of any Bond of Series U
shall be required by the Indenture.
Except as provided in the immediately preceding paragraph, the provisions
of Article Ten of the Original Indenture shall in all respects apply to any
redemption to which this Section 4.04 applies. Nothing in this Section 4.04
contained shall affect the manner of giving notice of the redemption of Bonds
of the Company of any series other than Bonds of Series U.
Notwithstanding the provisions of the Original Indenture (including
particularly Section 8.08 (b) thereof), the single Bond of Series U is subject
to redemption prior to maturity only upon the events and as set forth in this
Section 4.04.
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
SECTION 5.01. The Company, by the execution hereof, acknowledges
that a true copy of this Supplemental Indenture has been delivered to and
received by it.
SECTION 5.02. Except as heretofore supplemented and 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.
<PAGE>
55
SECTION 5.03. 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 POWER AND LIGHT COMPANY, party hereto of
the first part, has caused this Supplemental Indenture to be executed on its
behalf by the Chairman of its Board, 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 MANUFACTURERS HANOVER TRUST
COMPANY, 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, all as of the day and year first above written.
BLACK HILLS POWER AND LIGHT COMPANY,
[CORPORATE SEAL]
NEIL G. SIMPSON
Chairman of the Board.
Attest:
GEORGE T. LOCKE
Secretary.
Signed, sealed and delivered by
BLACK HILLS POWER AND LIGHT
COMPANY in the presence of:
JAMES H. WILSON
DAVID E. MORRILL
MANUFACTURERS HANOVER TRUST COMPANY,
[CORPORATE SEAL]
E. F. COCKINGS
Assistant Vice President.
Attest:
K. C. KELLY
Assistant Secretary.
Signed, sealed and delivered by
MANUFACTURERS HANOVER TRUST
COMPANY in the presence of:
F. J. GRIPPO
JAMES M. FOLEY
<PAGE>
56
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On this 20th (lay of April, 1977, before me, THERESA CERTO, the
undersigned officer, personally appeared NEIL G. SIMPSON, to me personally
known, who acknowledged himself to be, and being by me duly sworn, did say
that he is Chairman of the Board of BLACK HILLS POWER AND LIGHT COMPANY, 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 Chairman of the
Board and sealed in behalf of the corporation by authority of its Board of
Directors for the purposes therein contained, and the said NEIL G. SIMPSON
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
[NOTARIAL SEAL]
Notary Public
THERESA CERTO
Notary Public, State of New York
No. 01CE4624382
Qualified in Queens County
Commission Expires March 30, 1978
My commission expires
<PAGE>
57
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On this 18th day of April, 1977, before me, MARY LEONARDI, the
undersigned officer, personally appeared E. F. COCKINGS, to me personally
known, who acknowledged himself to be, and being by me duly sworn, did say
that he is Assistant Vice President of MANUFACTURERS HANOVER TRUST COMPANY, 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 in behalf of the corporation by authority of its Board of
Directors for the purposes therein contained, and the said E. F. COCKINGS
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
MARY LEONARDI
[NOTARIAL Seal]
MARY LEONARDI
Notary Public, State of New York
No. 40-7495520
Qualified in Putnam County
Certificate filed in New York County
Commission Expires March 30,1978
<PAGE>
[CONFORMED COPY]
================================================================================
BLACK HILLS POWER AND LIGHT COMPANY
TO
MANUFACTURERS HANOVER TRUST COMPANY,
As Trustee
----------
TWENTY FIRST SUPPLEMENTAL INDENTURE
Dated as of June 1, 1977
----------
Supplemental to Indenture of Mortgage and
Deed of Trust Dated as of September 1, 1941
================================================================================
<PAGE>
TWENTY FIRST SUPPLEMENTAL INDENTURE, dated as of the 1st day of June, 1977
between BLACK HILLS POWER AND LIGHT COMPANY, a corporation organized and
existing under the laws of the State of South Dakota (herein called the
"Company"), party of the first part and MANUFACTURERS HANOVER TRUST COMPANY,
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 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, and April 1, 1977 and the Company has also executed and delivered to said
The Hanover Bank, as Trustee, Subordination Agreements dated December 29, 1950
and September 19, 1955, also supplementing the Original Indenture which, as
supplemented and amended by said twenty Supplemental Indentures and said
Subordination Agreements, is hereinafter referred to as 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: Series D, 3 5/8%, due January 15, 1979, Series E, 3 1/4%
due March 1, 1980, Series F, 4 1/8%, due March 1, 1982, Series G, 4 1/4%, due
July 1, 1986, Series H, 5 1/4%, due May 15, 1987, Series I, 5 1/8%, due May 1,
1989, Series J, 5 3/4%, due April 1,
<PAGE>
2
1990, Series K, 5 5/8%, due August 1, 1990, Series L, 5 3/8%, due June 1, 1991,
Series M, 5%, due October 1, 1992, Series N, 4 3/4%, due May 1, 1993, Series O,
8.05%, due June 1, 1999, Series P, 10.75%, due August 1, 2004, Series Q,
11 1/4%, due July 15, 1985, Series R, 6 5/8%, due April 1, 2007, Series S,
6 5/8%, due April 1, 2007, Series T, 6 5/8%, due April 1, 2007 and Series U,
6 5/8%, due April 1, 2007; and
WHEREAS, the Company has entered into an Agreement dated as of June 1, 1977
(the "Campbell Agreement") with Campbell County, Wyoming ("Campbell") a
political subdivision of the State of Wyoming, for the acquisition,
construction and improvement of certain facilities for air and water pollution
control purposes at the Neil Simpson Electric Generating Plant of the Company
and an Agreement dated as of June 1, 1977 (the "Weston Agreement") with
Weston County, Wyoming ("Weston") also a political subdivision of the State
of Wyoming, for the acquisition, construction and improvement of certain
facilities for air and water pollution control purposes at the Osage Electric
Generating Plant of the Company and said pollution control facilities will be
financed through the issuance by each County of its respective Pollution
Control Revenue Bonds (Black Hills Power and Light Company Project)
Collateralized 1977 Series A (hereinafter respectively, the "Campbell Series A
Bonds" and the "Weston Series A Bonds" and, collectively, the "County
Series A Bonds") and in connection therewith the Company will execute and
deliver its First Mortgage Bonds of Series V and Series W provided for and
created by this Supplemental Indenture which will be pledged by Campbell and
Weston, respectively, to the trustee (the "County Trustee") under each
County's Indenture of Trust dated as of June 1, 1977 (hereinafter,
respectively, the "Campbell Pollution Control Indenture" and the "Weston
Pollution Control Indenture" and, collectively, the "Pollution Control
Indentures") providing for the issuance of the related County's Series A Bonds
with respect to said pollution control facilities, as security for the payment
of the principal of and premium, if any, and interest on the related County
Series A Bonds; 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,
<PAGE>
3
Series V" (hereinafter sometimes called the "Bonds of Series V") and "First
Mortgage Bonds, Series W" (hereinafter sometimes called the "Bonds of Series
W"), each in the form, having the characteristics and being entitled to the
benefits as in this Supplemental Indenture provided; 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 Original
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 Supplemental Indenture in the form hereof for the purposes herein
provided; and
WHEREAS, the Company is about to issue, under the Indenture, as hereby
amended and supplemented, its Bonds of Series V in the principal amount of
$1,55O,000 in fully registered form and without coupons and its Bonds of Series
W in the principal amount of $2,850,000 in fully registered form and without
coupons payable to the County Trustee, as assignee of Campbell and Weston under
the related Pollution Control Indenture. Said Bonds of Series V and Series W
will otherwise be non-transferable except as required to effect (i) a transfer
after an event of default under the related Pollution Control Indenture in the
course of the exercise of rights and remedies consequent upon such event of
default, or (ii) a transfer to a successor trustee under the related Pollution
Control Indenture; 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
<PAGE>
4
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 Bonds of Series V and Series W and 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 of Series V and Series
W as follows:
ARTICLE ONE
BONDS OF SERIES V, 6.85%
SECTION 1.01. There is hereby created a series of Bonds, known as and
entitled "First Mortgage Bonds Series V, 6.85%", due June 1, 2007, and the
form thereof shall be as provided in this Supplemental Indenture.
SECTION 1.02. The Bonds of Series V shall be evidenced by a single
registered bond in the principal amount and denomination of One Million Five
Hundred Fifty Thousand Dollars ($1,550,000) finally due June 1, 2007 but
payable in installments as follows:
<TABLE>
<CAPTION>
June 1 Principal June 1 Principal
Of the Year Amount Of the Year Amount
----------- --------- ----------- ---------
<S> <C> <C> <C>
1993 ........... $75,000 2001 ......... $ 75,000
1994 ........... 75,000 2002 ......... 75,000
1995 ........... 75,000 2003 ......... 75,000
1996 ........... 75,000 2004 ......... 75,000
1997 ........... 75,000 2005 ......... 75,000
1998 ........... 75,000 2006 ......... 75,000
1999 ........... 75,000 2007 ......... 500,000
2000 ........... 75,000
</TABLE>
The Bonds of Series V shall hear interest on the unpaid principal balance at
the rate of 6.85% per annum payable semi-annnally on December 1 and June 1
commencing December 1, 1977 until due and payable and shall bear interest at
the rate of 6% per annum on any overdue principal and on any overdue
installment of interest (to the
<PAGE>
5
extent that payment of such interest is enforceable under applicable law). June
1, 1977 shall be the date of commencement of the first interest period for such
Bonds. All such bonds shall be dated as provided in Section 2.05 of the
Original Indenture.
The single Bond of Series V shall be lettered V and numbered 1 and shall,
upon issuance, be delivered by the Company to and registered in the name of the
County Trustee and shall be transferable only as required to effect an
assignment thereof to a successor County Trustee. Bonds issued upon transfer
shall be lettered V and numbered from 2 upwards and issued in the same
$1,550,000 denomination but all payments of principal theretofore made on the
Bonds of Series V shall be duly noted thereon by the Trustee.
It is expected that the Company, pursuant to the Campbell Agreement, will
furnish directly to the County Trustee at its principal corporate trust office
all funds required for any and all payments of principal of, and interest and
premium on, the Campbell Series A Bonds (or that in lieu of any such payment
the Company or Campbell will deposit with the County Trustee Campbell Series A
Bonds for cancellation) and that corresponding payments of interest and of
installments of principal (including premiums if appropriate) on the Bonds of
Series V will automatically be effected in accordance with the provisions of
the Campbell Agreement. Whenever payment or provision therefor has been made in
respect of the principal, premium, if any, or interest on all or any portion of
the Campbell Series A Bonds in accordance with the Campbell Pollution Control
Indenture, the corresponding principal installment, premium, if any, or
interest on the Bonds of Series V shall be deemed paid to the extent such
payment or provision therefor has been made. Unless payment then is or has been
made as above provided, payment of the principal of, and premium, if any, and
interest on the single Bond of Series V shall be made to the County Trustee for
the account of Campbell in funds immediately available at said office of the
County Trustee, in each case on or prior to the due date for such payment. The
Trustee may at any and all times conclusively assume that the obligation of the
Company to make payments with respect to the principal of and premium, if any,
and interest on the Bonds of Series V, so far as such payments at the time have
become due, has been fully satisfied and discharged unless and until the
Trustee shall have received a written
<PAGE>
6
notice from the County Trustee signed by one of its officers stating (i) that
timely payment of principal of, or premium or interest on, Bonds of Series V
has not been made, (ii) that the Company is in arrears as to the payments
required to be made by it to the County Trustee pursuant to the Campbell
Agreement after giving effect to any available moneys in the Bond Fund provided
by the Campbell Pollution Control Indenture and (iii) the amount of the
arrearage.
The County Trustee, by acceptance of the single Bond of Series V, shall
agree to make prompt notation thereon of all payments and prepayments on
account of principal thereof made or occurring under any provisions of the
Campbell Agreement or of this Supplemental Indenture, and to surrender said
Bond to the Trustee upon final payment thereof. If and to the extent payment of
the Campbell Series A Bonds is deemed to have been made pursuant to the terms
of the Campbell Pollution Control Indenture, payment of the Bonds of Series V
shall be deemed to have been made to the same extent.
The Trustee is hereby appointed Registrar in respect of the Bonds of Series
V, 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 Bonds of
Series V may be served.
SECTION 1.03. The text of the Bonds of Series V and the certificate of
authentication of the Trustee to be executed thereon, are to be substantially
in the following forms, respectively:
No. V .......... $1,500,000
BLACK HILLS POWER AND LIGHT COMPANY
FIRST MORTGAGE BOND SERIES V, 6.85%, DUE JUNE 1, 2007
BLACK HILLS POWER AND LIGHT COMPANY (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
as trustee or its successor in trust (the "County Trustee"), under an
Indenture of Trust dated as of June 1, 1977 (the "Campbell Pollution Control
Indenture") between Campbell County, Wyoming and said County
<PAGE>
7
Trustee, ONES MILLION FIVE HUNDRED FIFTY THOUSAND DOLLARS, ($1,550,000) payable
in installments as follows:
<TABLE>
<CAPTION>
June 1 Principal June 1 Principal
Of the Year Amount Of the Year Amount
----------- --------- ----------- ---------
<S> <C> <C> <C>
1993 ........... $75,000 2001 ......... $ 75,000
1994 ........... 75,000 2002 ......... 75,000
1995 ........... 75,000 2003 ......... 75,000
1996 ........... 75,000 2004 ......... 75,000
1997 ........... 75,000 2005 ......... 75,000
1998 ........... 75,000 2006 ......... 75,000
1999 ........... 75,000 2007 ......... 500,000
2000 ........... 75,000
</TABLE>
together with interest thereon from June 1, 1977 on the unpaid principal amount
of this Bond at the rate of 6.85% per annum until due and payable, such
interest to be paid semi-annually in arrears on December 1 and June 1 in each
year. Overdue principal and overdue installments of interest shall bear
interest at the rate of 6% per annum (to the extent that payment of such
interest is enforceable under applicable law).
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 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 and April 1, 1977 and subordination
agreements dated December 29, 1950 and September 19, 1955 (hereinafter
collectively called the "Indenture"), executed by the Company to
Manufacturers Hanover Trust Company (herein called the "Trustee"), as
Trustee, to which Indenture and all indentures supplemental thereto reference
is hereby made for a description of the properties mortgaged and pledged, the
nature and extent of the
<PAGE>
8
security, the rights of the holders of said Bonds and the coupons appurtenant
to coupon Bonds 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.
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 per cent. in principal amount of the Bonds then
outstanding and entitled to consent, and of not less than sixty-six and two-
thirds per cent. 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 coupons 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, or which
would modify, without the written consent of the Trustee, the rights, duties or
immunities of the Trustee.
As provided in said Indenture, said Bonds are issuable in series which may
vary as in said Indenture provided or permitted. This Bond is one of a series
of Bonds entitled "First Mortgage Bonds Series V".
Campbell County, Wyoming (the "County") is issuing and selling, or has
issued and sold, its Pollution Control Revenue Bonds (Black Hills Power and
Light Company Project) Collateralized 1977 Series A (hereinafter called the
"Campbell Series A Bonds") under and pursuant to the Campbell Pollution
Control Indenture. This Bond of Series V is issued as a means of securing
repayment of the loan Of the proceeds of the Campbell Series A Bonds to the
Company to finance the acquisition, construction and improvement of certain
pollution control facilities pursuant to a Financing Agreement dated as of June
1, 1977 (the "Campbell Agreement"). It is expected that the Company will make
all payments of principal of, and interest and premium on, the Campbell Series
A Bonds directly to the County
<PAGE>
9
Trustee (or that in lieu thereof the Company or Campbell will deposit with the
County Trustee Campbell Series A Bonds for cancellation). All such payments
shall automatically constitute corresponding, payments on the Bonds of Series V
in accordance with the provisions of the Campbell Agreement. The holder of this
Bond by acceptance hereof agrees that whenever any payment or prepayment on
account of the principal of this Bond is made or occurs under any provision of
the Indenture, the Campbell Agreement or the Campbell Pollution Control
Indenture, the holder hereof shall promptly note on the Schedule of Payments of
Principal, the Schedule of Prepayments of Principal or the Schedule of Credits
of Prepayments of Principal the date and amount of each such payment or
prepayment of principal, and shall promptly notify the Trustee of the amount of
each such payment and that the notation of payment has been duly made, and
further agrees to surrender this Bond to the Trustee for cancellation when all
principal of, premium, if any, and interest on this Bond shall have been duly
paid. The holder of this Bond further agrees that if payment of the Campbell
Series A Bonds is deemed to have been made pursuant to the provisions of the
Campbell Pollution Control Indenture, payment of this Bond shall be deemed to
have been made.
Unless payment then is or has been made pursuant to the foregoing
paragraph, the principal of and premium, if any, and interest on this Bond will
be paid in lawful money of the United States of America and will be payable at
the principal corporate trust office of the County Trustee to the County
Trustee for the account of Campbell in immediately available funds at said
office of the County Trustee, in each case on or prior to the due date for such
payment. The holder of this Bond by acceptance hereof agrees that any such
payment of principal, premium or interest on this Bond shall be credited as and
used to make a corresponding, payment of principal, premium or interest on the
Campbell Series A Bonds.
This Bond is not prepayable prior to June 1, 1987, except that if at any
time (1) the Company shall elect to prepay installments payable under the
Campbell Agreement and to cause the Campbell Series A Bonds to be redeemed upon
the occurrence of an event specified in Section 8.1 of the Campbell Agreement
or (2) the Company shall be obligated to prepay installments payable under the
Campbell Agreement and to cause the Campbell Series A Bonds to be redeemed upon
the occurrence of an event specified in Section 8.2 of the Campbell
<PAGE>
10
Agreement, in any such event this Bond shall be prepaid by the Company in
whole, but not in part (except that upon the occurrence of an event specified
in paragraph (c) of Section 8.2 of the Campbell Agreement the Bond shall be
prepaid in whole or in part) at 100% of the unpaid principal amount thereof
plus accrued interest to the prepayment date, which date shall be the same date
as the prepayment date under the Campbell Agreement determined as set forth in
said Sections 8.1 and 8.2. The principal amount of Bonds of Series V to be
prepaid at any time upon the occurrence of the event specified in paragraph (c)
of Section 8.2 of the Campbell Agreement shall be the same as the principal
amount of Campbell Series A Bonds to be redeemed as the result of the
occurrence of such event.
This Bond shall be prepaid by the Company on or after June 1, 1987, in
whole at any time or in part on any interest payment date, if but only if the
Company shall have elected to prepay installments under the Campbell Agreement
of like principal amount and to cause Campbell Series A Bonds of like principal
amount to be redeemed on the prepayment date in accordance with the second
paragraph of Section 3.01 of the Campbell Pollution Control Indenture. Such
prepayment shall be at the prepayment price determined in accordance with the
following table plus accrued interest to the prepayment date:
<TABLE>
<CAPTION>
If prepayment date is during
twelve-month-period beginning Prepayment
June l Price
- ----------------------------- ----------
<S> <C>
1987 ..................................... 103 %
1988 ..................................... 102 1/2
1989 ..................................... 102
1990 ..................................... 101 1/2
1991 ..................................... 101
1992 ..................................... 100 1/2
1993 and thereafter ...................... 100
</TABLE>
Except to the extent that the Company shall at any time elect, pursuant to
the provisions of the Campbell Pollution Control Indenture, to apply as a credit
in respect of a sinking fund obligation thereunder an amount of Campbell Series
A Bonds redeemed or purchased and delivered to the County Trustee, any
prepayment of only a part of this Bond shall be in inverse order of the
maturities of the several installment payments, e.g., all the portion of this
Bond due on June 1, 2007, must be prepaid before any installment having an
earlier maturity
<PAGE>
11
date. In the event that the Company at any time elects, pursuant to the
provisions of the Campbell Pollution Control Indenture, to apply as a credit in
respect of a sinking fund obligation thereunder an amount of Campbell Series A
Bonds redeemed or purchased and delivered to the County Trustee, the
corresponding prepayment of this Bond in the same principal amount shall be
credited against the installment due on this Bond in the same year as such
sinking fund obligation.
In each case where this Bond is to be prepaid in whole or in part as
contemplated herein notice of not less than thirty (30) nor more than sixty
(60) days shall be given by first class mail postage prepaid to the holder of
record of this Bond unless such notice has been waived in writing by the County
Trustee.
If an event of default as defined in the Indenture shall occur, the
principal of this Bond may become and be declared due and payable in the manner
and with the effect provided in the Indenture. No holder of this Bond shall
have any right to institute any suit or proceeding for the foreclosure of the
Indenture or for any other remedy thereunder, except to the extent and in the
manner set forth in the Indenture.
This Bond shall be non-transferable except as required to effect (i) a
transfer to any successor trustee under the Campbell Pollution Control
Indenture or (ii) a transfer after an event of default under the Campbell
Pollution Control Indenture in the course of the exercise of rights and
remedies consequent upon such event of default. Subject to such restrictions,
this Bond is transferable by the registered holder hereof in person or by
attorney duly authorized in writing, at the office of Manufacturers Hanover
Trust Company, New York, New York, on registry books kept for such purpose at
such office. No charge will be made by the Company for any such transfer of
this Bond. Before any transfer of this Bond by the County Trustee or attorney
duly authorized will be recognized or given effect by the Company or the
Trustee, the County Trustee shall note hereon the date to which interest has
been paid as well as the amounts of all principal payments and prepayments
hereon, and shall notify the Company and the Trustee of the name and address of
the transferee and shall afford the Company and the Trustee the opportunity of
verifying the notation as to payment of interest and principal.
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 agreement supplemental
<PAGE>
12
thereto against any subscriber to the capital stock, incorporator or any past,
present or future stockholder, officer or director of the Company or of any
predecessor or successor corporation, either directly or through the Company or
any predecessor or successor corporation or any receiver or trustee in
bankruptcy, whether by virtue of any constitution or statute or rule of law or
by the enforcement of any assessment or penalty or stock subscription or
otherwise, all such liability, whether at common law or in equity or by statute
or constitution or otherwise, being, to the extent permitted by law, by the
acceptance and as a part of the consideration for the issuance hereof,
expressly waived and released by the registered holder hereof.
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 said 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 POWER AND LIGHT COMPANY,
By ..............................
President.
Attest:
....................................
Secretary.
(FORM OF TRUSTEE'S CERTIFICATE)
This is one of the Bonds, of the series designated therein, described in
the within mentioned Indenture.
MANUFACTURERS HANOVER TRUST COMPANY,
as Trustee,
By ...............................
Authorized Officer.
<PAGE>
13
SCHEDULE OF PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Amount of Date Date of Authorized Official
Installment Due Payment and Title
- ----------- ---- ------- -------------------
<S> <C> <S> <S>
</TABLE>
SCHEDULE OF PREPAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Principal Amount Authorized Official
Prepaid Date Prepaid and Title
---------------- ------------ -------------------
<S> <C> <C>
</TABLE>
SCHEDULE OF CREDITS OF PREPAYMENTS OF PRINCIPAL*
<TABLE>
<CAPTION>
Date of Installment
Prepaid Principal to which Authorized Official
Amount Credited Credited Date Credited and Title
- ----------------- ------------------- ------------- -------------------
<S> <C> <C> <C>
</TABLE>
*This Schedule to be completed only in the event that a prepayment is
credited against an installment maturing prior to the then last maturing unpaid
installment. Each prepayment is credited against the then last maturing unpaid
installment unless Campbell Series A Bonds redeemed or purchased and delivered
to the County Trustee are credited against a sinking fund obligation under the
Campbell Pollution Control Indenture, whereupon a corresponding prepayment in
the same principal amount shall be credited against the installment due in the
same year as such sinking fund obligation and entered in this Schedule.
(NOTICE: The within Bond may not be transferred until this schedule has been
verified by the Trustee.)
<PAGE>
14
Section 1.04. The single Bond of Series V is not prepayable prior to June 1,
1987, except that if, at any time, (1) the Company shall elect to prepay
installments payable under the Campbell Agreement and to cause the Campbell
Series A Bonds to be redeemed upon the occurrence of an event specified in
Section 8.1 of the Campbell Agreement or (2) the Company shall be obligated to
prepay installments payable under the Campbell Agreement and to cause the
Campbell Series A Bonds to be redeemed upon the occurrence of an event specified
in Section 8.2 of the Campbell Agreement, in any such event the Bonds of Series
V shall be prepaid by the Company in whole, but not in part (except that upon
the occurrence of an event specified in paragraph (c) of Section 8.2 of the
Campbell Agreement the Bonds of Series V shall be prepaid in whole or in part)
at 100% of the unpaid principal amount thereof plus accrued interest to the
prepayment date, which date shall be the same date as the prepayment date under
the Campbell Agreement determined as set forth in said Sections 8.1 and 8.2. The
principal amount of Bonds of Series V to be prepaid at any time upon the
occurrence of the event specified in paragraph (c) of Section 8.2 of the
Campbell Agreement shall be the same as the principal amount of Campbell Series
A Bonds to be redeemed as the result of the occurrence of such event.
The single Bond of Series V shall be prepaid by the Company on or after June
1, 1987, in whole at any time or in part on any interest payment date, if but
only if the Company shall have elected to prepay installments under the Campbell
Agreement of like principal amount and to cause Campbell Series A Bonds of like
principal amount to be redeemed on the prepayment date in accordance with the
second paragraph of Section 3.01 of the Campbell Pollution Control Indenture.
Such prepayment shall be at the prepayment price determined in accordance with
the following table plus accrued interest to the prepayment date:
<TABLE>
<CAPTION>
If the prepayment date is
during the twelve months Prepayment
beginning June 1 Price
- ------------------------- ----------
<S> <C>
1987 ......................................... 103 %
1988 ......................................... 102 1/2
1989 ......................................... 102
1990 ......................................... 101 1/2
1991 ......................................... 101
1992 ......................................... 100 1/2
1993 and thereafter........................... 100
</TABLE>
<PAGE>
15
Except to the extent that the Company shall at any time elect, pursuant to
the provisions of the Campbell Pollution Control Indenture, to apply as a credit
in respect of a sinking fund obligation thereunder an amount of Campbell Series
A Bonds redeemed or purchased and delivered to the County Trustee, any
prepayment of only a part of the single Bond of Series V shall be in inverse
order of the maturities of the several installment payments, e.g., all the
portion of the single Bond of Series V due on June l, 2007, must be prepaid
before any installment having an earlier maturity date. In the event that the
Company at any time elects, pursuant to the provisions of the Campbell Pollution
Control Indenture, to apply as a credit in respect of a sinking fund obligation
thereunder an amount of Campbell Series A Bonds redeemed or purchased and
delivered to the County Trustee, the corresponding prepayment of the single Bond
of Series V in the same principal amount shall be credited against the
installment due on the single Bond of Series V in the same year as such sinking
fund obligation.
If Bonds of Series V are to be redeemed in whole or in part as provided in
this Section 1.04, notice of redemption shall be given by first class mail,
postage prepaid, by or on behalf of the Company, not less than thirty (30) nor
more than sixty (60) days prior to the date of redemption, to the registered
holders of all Bonds so to be redeemed, at their respective addresses appearing
upon the books maintained by the Trustee pursuant to Section 2.10 of the
Original Indenture. Any notice which is mailed as herein provided shall be
conclusively presumed to have been properly and sufficiently given on the date
of such mailing, whether or not the registered holder or payee, as the case may
be, receives the notice. In case of any redemption of Bonds of such Series by
the Trustee pursuant to the provisions of the Indenture or any indenture
supplemental thereto, notice of redemption shall be given in a similar manner
by the Trustee. Notwithstanding any provision of Article Ten of the Original
Indenture, no publication of notice of redemption of any Bonds of Series V shall
be required by the Indenture.
Except as provided in the immediately preceding paragraph, the provisions of
Article Ten of the Original Indenture shall in all respects apply to any
redemption to which this Section 1.04 applies. Nothing in this Section 1.04
contained shall affect the manner of giving notice of
<PAGE>
16
the redemption of Bonds of the Company of any series other than Bonds of Series
V.
Notwithstanding the provisions of the Original Indenture (including
particularly Section 8.08(b) thereof), the single Bond of Series V is subject to
redemption prior to maturity only upon the events and as set forth in this
Section 1.04.
ARTICLE TWO
BONDS OF SERIES W, 6.85%
SECTION 2.01. There is hereby created a series of Bonds, known as and
entitled "First Mortgage Bonds Series W, 6.85%", due June 1, 2007, and the
form thereof shall be as provided in this Supplemental Indenture.
SECTION 2.02. The Bonds of Series W shall be evidenced by a single
registered bond in the principal amount and denomination of Two Million Eight
Hundred Fifty Thousand Dollars ($2,850,000) finally due June 1, 2007 but payable
in installments as follows:
<TABLE>
<CAPTION>
June 1 Principal June 1 Principal
Of the Year Amount Of the Year Amount
----------- --------- ----------- ---------
<S> <C> <C> <C>
1993 ........... $135,000 2001 ......... $135,000
1994 ........... 135,000 2002 ......... 135,000
1995 ........... 135,000 2003 ......... 135,000
1996 ........... 135,000 2004 ......... 135,000
1997 ........... 135,000 2005 ......... 135,000
1998 ........... 135,000 2006 ......... 135,000
1999 ........... 135,000 2007 ......... 960,000
2000 ........... 135,000
</TABLE>
The Bonds of Series W shall bear interest on the unpaid principal balance at
the rate of 6.85% per annum payable semi-annually on December 1 and June 1
commencing December 1, 1977 until due and payable and shall bear interest at the
rate of 6% per annum on any overdue principal and on any overdue installment of
interest (to the extent that payment of such interest is enforceable under
applicable
<PAGE>
17
law). June 1, 1977 shall be the date of commencement of the first interest
period for such Bonds. All such bonds shall be dated as provided in Section 2.05
of the Original Indenture.
The single Bond of Series W shall be lettered W and numbered 1 and shall,
upon issuance, be delivered by the Company to and registered in the name of the
County Trustee and shall be transferable only as required to effect an
assignment thereof to a successor County Trustee. Bonds issued upon transfer
shall be lettered W and numbered from 2 upwards and issued in the same
$2,850,000 denomination but all payments of principal theretofore made on the
Bonds of Series W shall be duly noted thereon by the Trustee.
It is expected that the Company, pursuant to the Weston Agreement, will
furnish directly to the County Trustee at its principal corporate trust office
all funds required for any and all payments of principal of, and interest and
premium on, the Weston Series A Bonds (or that in lieu of any such payment the
Company or Weston will deposit with the County Trustee Weston Series A Bonds for
cancellation) and that corresponding payments of interest and of installments of
principal (including premiums if appropriate) on the Bonds of Series W will
automatically be effected in accordance with the provisions of the Weston
Agreement. Whenever payment or provisions therefor has been made in respect of
the principal, premium, if any, or interest on all or any portion of the Weston
Series A Bonds in accordance with the Weston Pollution Control Indenture, the
corresponding principal installment, premium, if any, or interest on the Bonds
of Series W shall be deemed paid to the extent such payment or provision
therefor has been made. Unless payment then is or has been made as above
provided, payment of the principal of, and premium, if any, and interest on the
single Bond of Series W shall be made to the County Trustee for the account of
Weston in funds immediately available at said office of the County Trustee, in
each case on or prior to the due date for such payment. The Trustee may at any
and all times conclusively assume that the obligation of the Company to make
payments with respect to the principal of and premium, if any, and interest on
the Bonds of Series W, so far as such payments at the time have become due, has
been fully satisfied and discharged unless and until the Trustee shall have
received a written notice from the
<PAGE>
18
County Trustee signed by one of its officers stating (i) that timely payment of
principal of, or premium or interest on, Bonds of Series W has not been made,
(ii) that the Company is in arrears as to the payments required to be made by it
to the County Trustee pursuant to the Weston Agreement after giving effect to
any available moneys in the Bond Fund provided by the Weston Pollution Control
Indenture and (iii) the amount of the arrearage.
The County Trustee, by acceptance of the single Bond of Series W, shall
agree to make prompt notation thereon of all payments and prepayments on account
of principal thereof made or occurring under any provisions of the Weston
Agreement or of this Supplemental Indenture, and to surrender said Bond to the
Trustee upon final payment thereof. If and to the extent payment of the Weston
Series A Bonds is deemed to have been made pursuant to the terms of the Weston
Pollution Control Indenture, payment of the Bonds of Series W shall be deemed to
have been made to the same extent.
The Trustee is hereby appointed Registrar in respect of the Bonds of Series
W, 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 Bonds of
Series W may be served.
SECTION 2.03. The text of the Bonds of Series W, and the certificate of
authentication of the Trustee to be executed thereon, are to be substantially in
the following forms, respectively:
No. W .................... $2,850,000
BLACKS HILLS POWER AND LIGHT COMPANY
FIRST MORTGAGE BOND SERIES W, 6.85%, DUE JUNE 1, 2007
BLACK HILLS POWER AND LIGHT COMPANY (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 as trustee
or its successor
<PAGE>
19
in trust (the "County Trustee"), under an Indenture of Trust dated as of June
1, 1977 (the "Weston Pollution Control Indenture") between Weston County,
Wyoming and said County Trustee, Two MILLION EIGHT HUNDRED FIFTY THOUSAND
DOLLARS, ($2,850,000) payable in installments as follows:
<TABLE>
<CAPTION>
June 1 Principal June 1 Principal
Of the Year Amount Of the Year Amount
----------- --------- ----------- ---------
<S> <C> <C> <C>
1993 ........... $135,000 2001 ......... $135,000
1994 ........... 135,000 2002 ......... 135,000
1995 ........... 135,000 2003 ......... 135,000
1996 ........... 135,000 2004 ......... 135,000
1997 ........... 135,000 2005 ......... 135,000
1998 ........... 135,000 2006 ......... 135,000
1999 ........... 135,000 2007 ......... 960,000
2000 ........... 135,000
</TABLE>
together with interest thereon from June 1, 1977 on the unpaid principal amount
of this Bond at the rate of 6.85% per annum until due and payable, such interest
to be paid semi-annually in arrears on December 1 and June 1 in each year.
Overdue principal and overdue installments of interest shall bear interest at
the rate of 6% per annum (to the extent that payment of such interest is
enforceable under applicable law).
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 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 l5, 1974, August 1, 1974, July 15, 1975, May 1, 1976, February 15,
1977 and April 1, 1977 and subordina-
<PAGE>
20
tion agreements dated December 29, 1950 and September 19, 1955 (hereinafter
collectively called the "Indenture"), executed by the Company to Manufacturers
Hanover Trust Company (herein called the "Trustee"), as Trustee, to which
Indenture and all indentures 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 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.
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 per cent. in principal amount of the Bonds then
outstanding and entitled to consent, and of not less than sixty-six and
two-thirds per cent. 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 coupons or in the Indenture for the
payment of the principal of, or any installment of interest on, the Bond, 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, or which
would modify, without the written consent of the Trustee, the rights, duties or
immunities of the Trustee.
As provided in said Indenture, said Bonds are issuable in series which may
vary as in said Indenture provided or permitted. This Bond is one of a series of
Bonds entitled "First Mortgage Bonds Series W".
Weston County, Wyoming (the "County") is issuing and selling, or has
issued and sold, its Pollution Revenue Bonds (Black
<PAGE>
21
Hills Power and Light Company Project) Collateralized 1977 Series A (hereinafter
called the "Weston Series A Bonds") under and pursuant to the Weston Pollution
Control Indenture. This Bond of Series W is issued as a means of securing
repayment of the loan of the proceeds of the Weston Series A Bonds to the
Company to finance the acquisition, construction and improvement of certain
pollution control facilities pursuant to a Financing Agreement dated as of June
1, 1977 (the "Weston Agreement"). It is expected that the Company will make
all payments of principal of, and interest and premium on, the Weston Series A
Bonds directly to the County Trustee (or that in lieu thereof the Company or
Weston will deposit with the County Trustee Weston Series A Bonds for
cancellation). All such payments shall automatically constitute corresponding
payments on the Bonds of Series W in accordance with the provisions of the
Weston Agreement. The holder of this Bond by acceptance hereof agrees that
whenever any payment or prepayment on account of the principal of this Bond is
made or occurs under any provision of the Indenture, the Weston Agreement or the
Weston Pollution Control Indenture, the holder hereof shall promptly note on the
Schedule of Payments of Principal, the Schedule of Prepayments of Principal or
the Schedule of Credits of Prepayments of Principal the date and amount of each
such payment or prepayment of principal, and shall promptly notify the Trustee
of the amount of each such payment and that the notation of payment has been
duly made, and further agrees to surrender this Bond to the Trustee for
cancellation when all principal of, premium, if any, and interest on this Bond
shall have been duly paid. The holder of this Bond further agrees that if
payment of the Weston Series A Bonds is deemed to have been made pursuant to the
provisions of the Weston Pollution Control Indenture, payment of this Bond shall
be deemed to have been made.
Unless payment then is or has been made pursuant to the foregoing paragraph,
the principal of and premium, if any, and interest on this Bond will be paid in
lawful money of the United States of America and will be payable at the
principal corporate trust office of the County Trustee to the County Trustee for
the account of Weston in immediately available funds at said office of the
County Trustee, in each
<PAGE>
22
case on or prior to the due date for such payment. The holder of this Bond by
acceptance hereof agrees that any such payment of principal, premium or interest
on this Bond shall be credited as and used to make a corresponding payment of
principal, premium or interest on the Weston Series A Bonds.
This Bond is not prepayable prior to June 1, 1987, except that if at any
time (1) the Company shall elect to prepay installments payable under the Weston
Agreement and to cause the Weston Series A Bonds to be redeemed upon the
occurrence of an event specified in Section 8.1 of the Weston Agreement or (2)
the Company shall be obligated to prepay installments payable under the Weston
Agreement and to cause the Weston Series A Bonds to be redeemed upon the
occurrence of an event specified in Section 8.2 of the Weston Agreement, in any
such event this Bond shall be prepaid by the Company in whole, but not in part
(except that upon the occurrence of an event specified in paragraph (c) of
Section 8.2 of the Weston Agreement the Bond shall be prepaid in whole or in
part) at 100%, of the unpaid principal amount thereof plus accrued interest to
the prepayment date, which date shall be the same date as the prepayment date
under the Weston Agreement determined as set forth in said Sections 8.1 and 8.2.
The principal amount of Bonds of Series W to be prepaid at any time upon the
occurrence of the event specified in paragraph (c) of Section 8.2 of the Weston
Agreement shall be the same as the principal amount of Weston Series A Bonds to
be redeemed as the result of the occurrence of such event.
This Bond shall be prepaid by the Company on or after June 1, 1987, in whole
at any time or in part on any interest payment date, if but only if the Company
shall have elected to prepay installments under the Weston Agreement of like
principal amount and to cause Weston Series A Bonds of like principal amount to
be redeemed on the prepayment date in accordance with the second paragraph of
Section 3.01 of the Weston Pollution Control Indenture. Such prepayment shall be
at the prepayment price determined in accordance with the following table plus
accrued interest to the prepayment date:
<PAGE>
23
<TABLE>
<CAPTION>
If prepayment date is during
twelve-month period beginning Prepayment
June l Price
- ----------------------------- ----------
<S> <C>
1987 ..................................... 103 %
1988 ..................................... 102 1/2
1989 ..................................... 102
1990 ..................................... 101 1/2
1991 ..................................... 101
1992 ..................................... 100 1/2
1993 and thereafter ...................... 100
</TABLE>
Except to the extent that the Company shall at any time elect, pursuant to
the provisions of the Weston Pollution Control Indenture, to apply as a credit
in respect of a sinking fund obligation thereunder an amount of Weston Series A
Bonds redeemed or purchased and delivered to the County Trustee, any prepayment
of only a part of this Bond shall be in inverse order of the maturities of the
several installment payments, e.g., all the portion of this Bond due on June 1,
2007, must be prepaid before any installment having an earlier maturity date. In
the event that the Company at any time elects, pursuant to the provisions of the
Weston Pollution Control Indenture, to apply as a credit in respect of a sinking
fund obligation thereunder an amount of Weston Series A Bonds redeemed or
purchased and delivered to the County Trustee, the corresponding prepayment of
this Bond in the same principal amount shall be credited against the installment
due on this Bond in the same year as such sinking fund obligation.
In each case where this Bond is to be prepaid in whole or in part as
contemplated herein notice of not less than thirty (30) nor more than sixty (60)
days shall be given by first class mail postage prepaid to the holder of record
of this Bond unless such notice has been waived in writing by the County
Trustee.
If an event of default as defined in the Indenture shall occur, the
principal of this Bond may become and be declared due and payable in the manner
and with the effect provided in the Indenture. No holder of this Bond
shall have any right to institute any suit or proceeding for the foreclosure of
the Indenture or for any other remedy thereunder, except to the extent and in
the manner set forth in the Indenture.
<PAGE>
24
This Bond shall be non-transferable except as required to effect (i) a
transfer to any successor trustee under the Weston Pollution Control Indenture
or (ii) a transfer after an event of default under the Weston Pollution Control
Indenture in the course of the exercise of rights and remedies consequent upon
such event of default. Subject to such restrictions, this Bond is transferable
by the registered holder hereof in person or by attorney duly authorized in
writing, at the office of Manufacturers Hanover Trust Company, New York, New
York, on registry books kept for such purpose at such office. No charge will be
made by the Company for any such transfer of this Bond. Before any transfer of
this Bond by the County Trustee or attorney duly authorized will be recognized
or given effect by the Company or the Trustee, the County Trustee shall note
hereon the date to which interest has been paid as well as the amounts of all
principal payments and prepayments hereon, and shall notify the Company and the
Trustee of the name and address of the transferee and shall afford the Company
and the Trustee the opportunity of verifying the notation as to payment of
interest and principal.
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 agreement supplemental thereto against any subscriber to
the capital stock, incorporator or any past, present or future stockholder,
officer or director of the Company or of any predecessor or successor
corporation, either directly or through the Company or any predecessor or
successor corporation or any receiver or trustee in bankruptcy, whether by
virtue of any constitution or statute or rule of law or by the enforcement of
any assessment or penalty or stock subscription or otherwise, all such
liability, whether at common law or in equity or by statute or constitution or
otherwise, being, to the extent permitted by law, by the acceptance and as a
part of the consideration for the issuance hereof, expressly waived and released
by the holder hereof.
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 said Indenture.
<PAGE>
25
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 POWER AND LIGHT COMPANY,
By ..............................
President
Attest:
...................................
Secretary
(FORM OF TRUSTEE'S CERTIFICATE)
This is one of the Bonds, of the series designated therein, described in the
within mentioned Indenture.
MANUFACTURERS HANOVER TRUST COMPANY,
as Trustee,
By ..............................
Authorized Officer.
<PAGE>
26
SCHEDULE OF PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Amount of Date Date of Authorized Official
Installment Due Payment and Title
- ----------- ---- ------- -------------------
<S> <C> <C> <C>
</TABLE>
SCHEDULE OF PREPAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Principal Amount Authorized Official
Prepaid Date Prepaid and Title
---------------- ------------ -------------------
<S> <C> <C>
</TABLE>
SCHEDULE OF CREDITS OF PREPAYMENTS OF PRINCIPAL*
<TABLE>
<CAPTION>
Date of Installment
Prepaid Principal to which Authorized Official
Amount Credited Credited Date Credited and Title
- ----------------- ------------------- ------------- -------------------
<S> <C> <C> <C>
</TABLE>
*This Schedule to be completed only in the event that a prepayment is
credited against an installment maturing prior to the then last maturing unpaid
installment. Each prepayment is credited against the then last maturing unpaid
installment unless Weston Series A Bonds redeemed or purchased and delivered to
the County Trustee are credited against a sinking fund obligation under the
Weston Pollution Control Indenture, whereupon a corresponding prepayment in the
same principal amount shall be credited against the installment due in the same
year as such sinking fund obligation and entered in this Schedule.
(NOTICE: The within Bond may not be transferred until this schedule has been
verified by the Trustee.)
<PAGE>
27
SECTION 2.04. The single Bond of Series W is not prepayable prior to June
1, 1987, except that if, at any time, (1) the Company shall elect to prepay
installments payable under the Weston Agreement and to cause the Weston Series A
Bonds to be redeemed upon the occurrence of an event specified in Section 8.1 of
the Weston Agreement or (2) the Company shall be obligated to prepay
installments payable under the Weston Agreement and to cause the Weston Series A
Bonds to be redeemed upon the occurrence of an event specified in Section 8.2 of
the Weston Agreement, in any such event the Bonds of Series W shall be prepaid
by the Company in whole, but not in part (except that upon the occurrence of an
event specified in paragraph (c) of Section 8.2 of the Weston Agreement the
Bonds of Series W shall be prepaid in whole or in part) at 100% of the unpaid
principal amount thereof plus accrued interest to the prepayment date, which
date shall be the same date as the prepayment date under the Weston Agreement
determined as set forth in said Sections 8.1 and 8.2. The principal amount of
Bonds of Series W to be prepaid at any time upon the occurrence of the event
specified in paragraph (c) of Section 8.2 of the Weston Agreement shall be the
same as the principal amount of Weston Series A Bonds to be redeemed as the
result of the occurrence of such event.
The single Bond of Series W shall be prepaid by the Company on or after June
1, 1987, in whole at any time or in part on any interest payment date, if but
only if the Company shall have elected to prepay installments under the Weston
Agreement of like principal amount and to cause Weston Series A Bonds of like
principal amount to be redeemed on the prepayment date in accordance with the
second paragraph of Section 3.01 of the Weston Pollution Control Indenture. Such
prepayment shall be at the prepayment price determined in accordance with the
following table plus accrued interest to the prepayment date:
<TABLE>
<CAPTION>
If the prepayment date is
during the twelve months Prepayment
beginning June 1 Price
- ------------------------- ----------
<S> <C>
1987 ......................................... 103 %
1988 ......................................... 102 1/2
1989 ......................................... 102
1990 ......................................... 101 1/2
1991 ......................................... 101
1992 ......................................... 100 1/2
1993 and thereafter........................... 100
</TABLE>
<PAGE>
28
Except to the extent that the Company shall at any time elect, pursuant to
the provisions of the Weston Pollution Control Indenture, to apply as a credit
in respect of a sinking fund obligation thereunder an amount of Weston Series A
Bonds redeemed or purchased and delivered to the County Trustee, any prepayment
of only a part of the single Bond of Series W shall be in inverse order of the
maturities of the several installment payments, e.g., all the portion of the
single Bond of Series W due on June 1, 2007, must be prepaid before any
installment having an earlier maturity date. In the event that the Company at
any time elects, pursuant to the provisions of the Weston Pollution Control
Indenture, to apply as a credit in respect of a sinking fund obligation
thereunder an amount of Weston Series A Bonds redeemed or purchased and
delivered to the County Trustee, the corresponding prepayment of the single Bond
of Series W in the same principal amount shall be credited against the
installment due on the single Bond of Series W in the same year as such sinking
fund obligation.
If Bonds of Series W are to be redeemed in whole or in part as provided in
this Section 2.04, notice of redemption shall be given by first class mail,
postage prepaid, by or on behalf of the Company, not less than thirty (30) nor
more than sixty (60) days prior to the date of redemption, to the registered
holders of all Bonds so to be redeemed, at their respective addresses appearing
upon the books maintained by the Trustee pursuant to Section 2.10 of the
Original Indenture. Any notice which is mailed as herein provided shall be
conclusively presumed to have been properly and sufficiently given on the date
of such mailing, whether or not the registered holder or payee, as the case may
be, receives the notice. In case of any redemption of Bonds of such Series by
the Trustee pursuant to the provisions of the Indenture or any indenture
supplemental thereto, notice of redemption shall be given in a similar manner by
the Trustee. Notwithstanding any provision of Article Ten of the Original
Indenture, no publication of notice of redemption of any Bonds of Series W shall
be required by the Indenture.
Except as provided in the immediately preceding paragraph, the provisions of
Article Ten of the Original Indenture shall in all respects apply to any
redemption to which this Section 2.04 applies. Nothing in this Section 2.04
contained shall affect the manner of giving notice of
<PAGE>
29
the redemption of Bonds of the Company of any series other than Bonds of Series
W.
Notwithstanding the provisions of the Original Indenture (including
particularly Section 8.08 (b) thereof), the single Bond of Series W is subject
to redemption prior to maturity only upon the events and as set forth in this
Section 2.04.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.01. The Company, by the execution hereof, acknowledges that a true
copy of this Supplemental Indenture has been delivered to and received by it.
SECTION 3.02. Except as heretofore supplemented and 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.
SECTION 3.03. 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 POWER AND LIGHT COMPANY, party hereto of the
first part, has caused this Supplemental Indenture to be executed on its behalf
by the Chairman of its Board, 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 MANUFACTURERS HANOVER TRUST COMPANY, 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
<PAGE>
30
seal to be hereto affixed and to be attested by its Secretary or an Assistant
Secretary, all as of the day and year first above written.
BLACK HILLS POWER AND LIGHT COMPANY,
NEIL G. SIMPSON
Chairman of the Board.
[CORPORATE SEAL]
Attest:
GEORGE T. LOCKE
Secretary.
Signed, sealed and delivered by
BLACK HILLS POWER AND LIGHT
COMPANY in the presence of:
LOUISE S. KELLEY
BARRY D. WILSON
MANUFACTURERS HANOVER TRUST COMPANY,
E. F. COCKINGS
Assistant Vice President.
[CORPORATE SEAL]
Attest:
K. C. KELLY
Assistant Secretary.
Signed, sealed and delivered by
MANUFACTURERS HANOVER TRUST
COMPANY in the presence of:
JAMES M. FOLEY
D. A. URSITTI, JR.
<PAGE>
31
STATE OF SOUTH DAKOTA
SS.:
COUNTY OF PENNINGTON
On this 26th day of May, 1977, before me, MARY S. KELLER, the undersigned
officer, personally appeared NEIL G. SIMPSON, to me personally known, who
acknowledged himself to be, and being by me duly sworn, did say that he is
Chairman of the Board of BLACK HILLS POWER AND LIGHT COMPANY, 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 Chairman of the Board and sealed in behalf of
the corporation by authority of its Board of Directors for the purposes therein
contained, and the said NEIL G. SIMPSON acknowledged the same as the free act
and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
MARY S. KELLER
Notary Public
[NOTARIAL SEAL]
My commission expires June 27, 1979
<PAGE>
32
STATE OF NEW YORK
SS.:
COUNTY OF NEW YORK
On this 7th day of June, 1977, before me, MARY LEONARDI, the undersigned
officer, personally appeared E. F. COCKINGS, to me personally known, who
acknowledged himself to be, and being by me duly sworn, did say that he is
Assistant Vice President of MANUFACTURERS HANOVER TRUST COMPANY, 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 in
behalf of the corporation by authority of its Board of Directors for the
purposes therein contained, and the said E. F. COCKINGS acknowledged the same as
the free act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
MARY LEONARDI
Notary Public
[NOTARIAL SEAL] MARY LEONARDI
Notary Public, State of New York
No. 40-7495520
Qualified in Putnam County
Certificate filed in New York County
Commission Expires March 30, 1978
<PAGE>
Conformed Copy
================================================================================
BLACK HILLS CORPORATION
TO
MANUFACTURERS HANOVER TRUST COMPANY,
As Trustee
----------
TWENTY THIRD
SUPPLEMENTAL INDENTURE
Dated as of September 1, 1986
----------
Supplemental to Indenture of Mortgage and
Deed of Trust Dated as of September 1, 1941
First Mortgage Bonds, Series X, 8.375%, Due October 1, 1998
================================================================================
<PAGE>
TWENTY THIRD SUPPLEMENTAL INDENTURE, dated as of the 1st day of
September, 1986, between Black Hills Corporation (which was formerly named
Black Hills Power and Light Company and which now operates its electric utility
division 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 Manufacturers
Hanover Trust Company, 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 dated as
follows:
<TABLE>
<S> <C>
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
</TABLE>
<PAGE>
2
<TABLE>
<S> <C>
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
</TABLE>
and the Company also executed and delivered to said The Hanover Bank, as
Trustee, Subordination Agreements dated December 29, 1950 and September 19,
1955 also supplementing the Original Indenture, which, as supplemented and
amended by said twenty-two Supplemental Indentures and said Subordination
Agreements, is hereinafter referred to as 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:
<TABLE>
<CAPTION>
Principal Amount
Series Outstanding
------ ----------------
<S> <C>
Series H, 5-1/4%, due May 15, 1987.... $ 638,000
Series I, 5-1/8%, due May 1, 1989..... 870,000
Series J, 5-3/4%, due April 1, 1990... 875,000
Series K, 5-5/8%, due August 1, 1990.. 875,000
Series L, 5-3/8%, due June 1, 1991.... 880,000
Series M, 5%, due October 1, 1992..... 880,000
Series N, 4-3/4%, due May 1, 1993..... 889,000
Series O, 8.05%, due June 1, 1999..... 4,915,000
Series P, 10.75%, due August 1, 2004.. 5,790,000
Series R, 6-5/8%, due April 1, 2007... 5,8S0,000
Series S, 6-5/8%, due April 1, 2007... 2,050,000
Series T, 6-5/8%, due April 1, 2007... 1,000,000
Series U, 6-5/8%, due April 1, 2007... 1,000,000
Series V, 6.85%, due June 1, 2007..... 1,550,000
Series W, 6.85%, due June 1, 2007..... 2,850,000
-----------
$30,972,000
===========
</TABLE>
<PAGE>
3
; and
WHEREAS, the Company has acquired certain property not heretofore
specifically described under the Indenture and it desires, to specifically
describe such property; 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 X, 8.375%, due October
1, 1998" (herein called "Bonds of Series X"), to be initially authenticated and
delivered in the aggregate principal amount of $6,000,000, in the form, having
the characteristics and being entitled to the benefits as in this Supplemental
Indenture provided; 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 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 Third 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 Bonds of Series
X, 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 of Series X as follows:
<PAGE>
4
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 WESTON COUNTY, WYOMING
Tract 1
The Northwest Quarter of Section 14, Township 46 North, Range 63 West,
containing 160 acres, more or less.
Tract 2
The West Half of the Southwest Quarter of Section 14, North Half of the
Southeast Quarter of Section 15 and all land east of railroad in the
Northeast Quarter of the Southwest Quarter of Section 15, Township 46
North, Range 63 West, containing 180 acres, more or less.
LANDS IN PENNINGTON COUNTY, SOUTH DAKOTA
Tract 1
North 200 feet (Lot 1) of Tract D in West Half of the Southwest Quarter of
Section 17, Township 1 North, Range 8 East, Black Hills Meridian.
Tract 2
That portion of Lot 23 of Section 30, Township 15 North, Range 5 East,
Black Hills Meridian, lying south of the ROW in tract A of Reder Placer.
Tract 3
Tract One of the Krebs Subdivision in the Northwest Quarter of the
Southeast Quarter of Section 34 and Lots F, G and H in the Southeast
Quarter of the Southwest Quarter of the Northeast Quarter of Section 34,
Township 2 North, Range 7 East, Black Hills Meridian, containing 10.169
acres, more or less.
<PAGE>
5
Tract 4
The South 180 feet of Lot 3 of the BHP addition in the Northwest Quarter of
the Southeast Quarter of Section 34, Township 2 North, Range 7 East, Black
Hills Meridian, in the City of Rapid City.
Tract 5
Lots 1 and 2 of the BHP addition in the City of Rapid City.
LAND IN FALL RIVER COUNTY, SOUTH DAKOTA
Lots 11 and 12 of Block 1 of the Original Town of Edgemont.
LAND IN BUTTE COUNTY, SOUTH DAKOTA
Lot 13 of Block 18 of the Original Town of Belle Fourche.
LAND IN MEADE COUNTY, SOUTH DAKOTA
Lot 17 of Block 14 of the Original Town of Sturgis.
LANDS IN LAWRENCE COUNTY, SOUTH DAKOTA
Tract 1
A portion of Mineral Surveys 400 and 1521. Beginning at Corner No. 1 of the
Springville Lode, M.S.1521, identical with Corner No. 3 of the Robert
Calvin Lode, M.S.1521, for Corner No. 1 of said Tract, thence running South
14 degrees 39' East to Corner No. 2 about 60 feet; thence North 75 degrees
21' East about 150 feet to Corner No. 3; thence North 14 degrees 39' West
about 110 feet to Corner No. 4; thence South 75 degrees 21' West about
156.2 feet to Corner No. 5 on Line 2-3 of the Robert Calvin Lode; thence
South 21 degrees 45' East about 50.4 feet to the place of beginning.
Tract 2
Tracts A, B and C of Subdivision of Mineral Surveys 400, 1050, 1305, 1521
and 1522 in Section 4, Township 4 North, Range 3 East, Black Hills
Meridian.
<PAGE>
6
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, including, but not limited to:
Power Sales Agreement Between Pacific Power & Light Company and Black Hills
Power and Light Company, dated as of December 31, 1983 providing for the
purchase by the Company of electric power and energy for a term commencing
January 1, 1984 and terminating December 31, 2023;
TOGETHER with, all and singular, the tenements, hereditaments and
appurtenances belonging or in any wise 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 buildings, structures and improvements erected or
constructed on any of the above described tracts of land;
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, hydro-
electric plants, cables, conduits, tools, instruments, apparatus, appliances,
machinery, facilities, fixtures and all other property used or
<PAGE>
7
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 (EXCEPT, and not including the Project and Project Site, and all
improvements and appurtenances thereto as defined in and all of which are
released from the lien of the Indenture by the provisions of Article One of the
Eighteenth Supplemental Indenture, dated as of May 1, 1976);
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
Bonds of Series X, 8.375%
SECTION 1.01. There is hereby created a series of Bonds, known as and
entitled "First Mortgage Bonds, Series X, 8.375%, due October 1, 1998", and the
form thereof shall be as provided in this Supplemental Indenture.
The aggregate principal amount of Bonds of Series X which may be
authenticated and delivered and outstanding under the Indenture and this
Supplemental Indenture shall be limited in aggregate principal amount to
$6,000,000, except as provided under Section 2.12 of the Indenture. The Bonds
of Series X shall bear interest at the rate of 8.375% per annum until
<PAGE>
8
the principal thereof becomes due and payable and thereafter, if default be
made in the payment of such principal, at the rate of 9.375% per annum until
the principal thereof shall be paid, and shall mature October 1, 1998.
The Bonds of Series X shall be registered Bonds without coupons of
the 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 Bonds of Series X
shall be the date of initial authentication and delivery thereof. The Bonds of
Series X shall be dated as provided in Section 2.05 of the Indenture, and shall
be numbered, from XRX1 consecutively upwards. All Bonds of Series X shall bear
interest from their respective dates, such interest to be payable semi-annually
on the first day of April and October in each year. The first interest payment
shall be due October 1, 1986 and shall include interest from the date of
initial authentication and delivery thereof. The principal of, premium, if any,
and interest on the Bonds of Series X 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 Bonds of Series X shall be subject to redemption as provided in
Sections 1.03 and 1.04 and Article Two of this Supplemental Indenture.
The Trustee is hereby appointed Registrar in respect of the Bonds of
Series X, 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
Bonds of Series X may be served.
The definitive Bonds of Series X 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
Bonds of Series X 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 Bonds of Series X without coupons, whenever the same shall be
required for any such exchange.
<PAGE>
9
SECTION 1.02. The text of the Bonds of Series X, and the certificate of
authentication of the Trustee to be executed thereon, are to be substantially
in the following forms, respectively:
(FORM OF BOND OF SERIES X)
No. XRX ..... $..............
BLACK HILLS CORPORATION
FIRST MORTGAGE BOND, SERIES X, 8.375%, DUE OCTOBER 1, 1998
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 October, 1998, 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
8.375 per cent, 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 April 1 and October 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, at the rate of 9.375 per cent, per annum until
the principal hereof shall be paid. The first interest payment shall be due
October 1, 1986 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, Manufacturers
Hanover Trust Company, called the "Trustee"), as
<PAGE>
10
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 and September 1, 1986 and Subordination Agreements dated
December 29, 1950 and September 19, 1955 (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 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.
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 per cent, in principal amount of the Bonds
then outstanding and entitled to consent, and of not less than sixty-six and
two-thirds per cent, 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 coupons 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, or which
would modify, without the written consent of the Trustee, the rights, duties or
immunities of the Trustee.
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 entitled "First Mortgage Bonds, Series X, 8.375%" due October
1, 1998.
<PAGE>
11
The Bonds of this Series are subject to redemption, in whole or in
part, at the option of the Company on (but not before) October 1, 1994 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 Bonds of this Series to be
redeemed, at their 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 the applicable percentage of the principal amount
thereof set forth below:
<TABLE>
<CAPTION>
If Redeemed During 12
Month Period Beginning
October 1 Percentage
---------------------- ----------
<S> <C>
1994 102.284
1995 101.523
1996 100.761
1997 100.000
</TABLE>
together, in each case, with accrued interest to the redemption date.
The Bonds of Series X are subject to redemption, pursuant to the terms
of the mandatory sinking fund provided in the Indenture, on October 1, 1990 and
on each October 1 thereafter, at 100% of the principal amount thereof plus
accrued interest to the redemption date in the following respective principal
amounts:
<TABLE>
<CAPTION>
October 1 of Principal October 1 of Principal
the Year Amount the Year Amount
------------ --------- ------------ ---------
<S> <C> <C> <C>
1990 $665,000 1994 $665,000
1991 665,000 1995 665,000
1992 665,000 1996 665,000
1993 665,000 1997 665,000
</TABLE>
The Bonds of this Series X are further subject to redemption in whole
or in part by application of monies deposited with the Trustee in certain cases
for the release of properties from the lien of the Indenture, all subject to the
conditions and as more fully set forth in the Indenture, at any time upon
notice at 100% of the principal amount thereof, together, in each case, with
accrued interest to the redemption date.
The particular Bonds of Series X to be redeemed from time to time shall
be selected by the Trustee in the amount of $1,000 or a multiple thereof and
<PAGE>
12
as nearly as practicable pro rata 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 X, 8.375%, due October 1, 1998, are
issuable as fully registered Bonds without coupons of the denominations 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. Bonds of said series
upon surrender thereof to the Trustee at this 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
<PAGE>
13
hereon, and neither the Company nor the Trustee shall be affected by any notice
to the contrary.
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.
<PAGE>
14
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.
MANUFACTURERS HANOVER
TRUST COMPANY, As Trustee,
By ------------------------
Authorized Officer
<PAGE>
15
SECTION 1.03. The Bonds of Series X shall be redeemable (except as
otherwise provided in the last paragraph of this Section 1.03 or in Section
2.02 of this Supplemental Indenture) at the option of the Company, at any time
and from time to time, in whole or in part, in the manner and upon the notice
provided in Article Ten of the Indenture, at the redemption prices, and subject
to the conditions, set forth in the form of Bond of Series X provided in
Section 1.02 of this Supplemental Indenture, together, in each case, with
accrued interest to the redemption date.
Any monies applied to the redemption of Bonds of Series X pursuant to
the provisions of Section 8.08(b) of the Indenture shall be so applied at a
redemption price equal to 100% of the principal amount thereof, 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 Bonds of Series X, the particular Bonds or parts thereof to be
redeemed shall be selected by the Trustee from the outstanding Bonds of Series
X not previously called for redemption as nearly as practicable pro rata
according to the respective principal amounts of such Bonds, provided that the
portions of the principal of Bonds of Series X at any time so selected for
redemption in part shall be equal to $1,000 or a multiple thereof.
ARTICLE TWO
SINKING FUND FOR BONDS OF SERIES X
SECTION 2.01. As a sinking fund for the retirement of Bonds of Series
X, so long as any of the Bonds of said series shall be outstanding, the Company
will deposit with the Trustee on September 30, 1990 and annually thereafter on
each September 30 to and including September 30, 1997 (each such date being
herein sometimes referred to as a "Series X Sinking Fund Payment Date"), cash
in an amount sufficient for the redemption of $665,000 aggregate principal
amount of Bonds of Series X on the next ensuing October 1 at a redemption price
of 100% of the principal amount thereof, together, in each case, with accrued
interest to the redemption date, and thereupon the Trustee shall apply such
cash to the redemption of said aggregate principal amount of the Bonds of said
series on said next ensuing October 1. Any redemption of less than all of the
Bonds of Series X shall
<PAGE>
16
not relieve the Company of its obligation to redeem Bonds of Series X in
accordance with the requirements of this Section 2.01.
SECTION 2.02. Whenever the Trustee shall be required to redeem Bonds
pursuant to the provisions of Section 2.01 of this Supplemental Indenture, the
Trustee shall, on or before the 45th day prior to the Series X Sinking Fund
Payment Date, proceed to select for redemption, from the Bonds of said series,
in the manner provided in Section 1.04 of this Supplemental Indenture, the
aggregate principal amount of Bonds of said series required by the provisions
of said Section 2.01 to be redeemed by application of the cash to be paid to
the Trustee on said Series X Sinking Fund Payment Date, and for and on behalf
of the Company and in the name of the Company, the Trustee shall give notice,
as required by the provisions of Article Ten of the Indenture, of the
redemption for the Series X Sinking Fund of the Bonds so selected. Subject to
the provisions of this Article, the redemption of such Bonds shall be effected
in the manner and upon the terms provided in Section 10.03 of the Indenture at
the sinking fund redemption price of 100% of the principal amount thereof,
together, in each case, with accrued interest to the redemption date.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.01. The Company covenants that so long as any bonds of Series
X 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.
SECTION 3.02. Prior to the authentication and delivery of the Bonds of
Series X, the Company shall redeem the $5,790,000 of Series P Bonds. The
aggregate principal amount of Bonds which, immediately after the authentication
and delivery of the Bonds of Series X 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 $31,182,000,
consisting of the Bonds of Series H through Series O and Series R through
Series W hereinbefore set forth in the second recital of this Supplemental
Indenture and $6,000,000 aggregate principal amount of Bonds of Series X hereby
created.
<PAGE>
17
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.
<PAGE>
18
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 MANUFACTURERS HANOVER TRUST COMPANY, 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,
all as of the day and year first above written.
BLACK HILLS CORPORATION,
[Corporate Seal]
By GEORGE T. LOCKE
------------------------
Senior Vice President-Finance
ATTEST:
DAVID E. MORRILL
- -------------------------------
Assistant Secretary.
Signed, sealed and delivered by
BLACK HILLS CORPORATION in the
presence of:
BONITA A. EDWARDS
- -------------------------------
JODI HANSON
- -------------------------------
MANUFACTURERS HANOVER
TRUST COMPANY,
[Corporate Seal]
By E. F. COCKINGS
----------------------
Assistant Vice President
ATTEST:
P. FERRERI
- -------------------------------
Assistant Secretary.
Signed, sealed and delivered by
MANUFACTURERS HANOVER TRUST COMPANY in the
presence of:
T. C. KNIGHT
- -------------------------------
J. T. BALDUCCI
- -------------------------------
<PAGE>
19
STATE OF SOUTH DAKOTA
COUNTY OF PENNINGTON SS:
On this 17th day of September, 1986 before me, Connie J. Dulany, the
undersigned officer, personally appeared George T. Locke, 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 in behalf of the corporation by authority of its Board of Directors for
the purposes therein contained, and the said George T. Locke acknowledged the
same as the free act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
[Notarial Seal]
CONNIE J. DULANY
-----------------------------------
Notary Public
My commission expires July 13, 1994
<PAGE>
20
STATE OF NEW YORK
COUNTY OF NEW YORK SS:
On this 18th day of September, 1986 before me, Kathy A. Murphy, the
undersigned officer, personally appeared E. F. Cockings, to me personally
known, who acknowledged himself to be, and being by me duly sworn, did say that
he is Assistant Vice President of MANUFACTURERS HANOVER TRUST COMPANY, 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 Vice President, and
sealed in behalf of the corporation by authority of its Board of Directors for
the purposes therein contained, and the said E. F. Cockings acknowledged the
same as the free act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
[Notarial Seal]
KATHY A. MURPHY
------------------------------------
Notary Public
Kathy A. Murphy
Notary Public, State of New York
No. 60-482 5140
Qualified in Westchester County
Certificate filed in New York County
Commission expires July 31, 1988.
<PAGE>
21
Counterparts of the foregoing Twenty Third Supplemental Indenture were
recorded or filed as follows:
South Dakota Secretary of State:
Counterpart No. 1 recorded 9/22/86 at 4:00 P.M. in Volume 28, Page 8
Counterpart No. 2 filed 9/22/86 at 10:25 A.M., Document No. 346852
Nebraska Secretary of State:
Counterpart No. 3 filed 9/22/86 at 3:08 P.M., Document No. 355082
Montana Secretary of State:
Counterpart No. 4 filed 9/22/86 at 10:39 A.M., Filing No. 236638
Wyoming Secretary of State:
Counterpart No. 5 filed 9/22/86 at 9:00 A.M., File No. 14831
Dawes County, Nebraska:
Counterpart No. 6 recorded 9/19/86 at 2:00 P.M. in Book 102,
Page 1-20 Docket No. 22
Counterpart No. 7 filed 9/19/86 at 2:00 P.M., File No. 1002
Scotts Bluff County, Nebraska:
Counterpart No. 8 recorded 9/19/86 at 3:45 P.M. in General Index for
Mortgages Book 262, Page 556, Document No. 3950
Counterpart No. 9 recorded 9/19/86 at 3:45 P.M. in Book 1 of Financing
Statements, Page 984
Sioux County, Nebraska:
Counterpart No. 10 recorded 9/19/86 at 1:40 P.M. in Book 45 of Mortgages,
Page 285-305
Counterpart No. 11 filed 9/19/86 at 1:45 P.M., Filing No. 6062
Carter County, Montana:
Counterpart No. 12 recorded 9/19/86 at 2:30 P.M. in Book 28 of
Mortgages on Pages 1-21, Docket No. 159556
Counterpart No. 13 filed 9/19/86 at 2:30 P.M., File No. 159557 and 4524
Powder River County, Montana:
Counterpart No. 14 recorded 9/19/86 at 2:20 P.M., Book 36MF of Mortgages,
Page 647, Docket No. 113122
Counterpart No. 15 filed 9/19/86 at 2:20 P.M., File No. 113121
Campbell County, Wyoming:
Counterpart No. 16 recorded 9/19/86 at 3:50 P.M. in Book 906 of Photos,
Page 229-249, Docket No. 588104
Counterpart No. 17 filed 9/19/86 at 1:22 P.M., File No. 4128961
Crook County, Wyoming:
Counterpart No. 18 recorded 9/19/86 at 1:10 P.M. in Book 252 of Photos,
Page 777, Docket No. 454725
Counterpart No. 19 filed 9/19/86 at 1:10 P.M., File No. 21918
Weston County, Wyoming:
Counterpart No. 20 recorded 9/19/86 at 2:30 P.M., Book 153 of Photos,
Page 654-674, Docket No. 526160
Counterpart No. 21 filed 9/19/86 at 2:30 P.M., File No. 038336 and 526161
<PAGE>
Conformed Copy
- -------------------------------------------------------------------------------
BLACK HILLS CORPORATION
TO
MANUFACTURERS HANOVER TRUST COMPANY,
As Trustee
---------------------
TWENTY FOURTH
SUPPLEMENTAL INDENTURE
Dated as of April 13, 1987
---------------------
Supplemental to Indenture of Mortgage and
Deed of Trust Dated as of September 1, 1941
- -------------------------------------------------------------------------------
<PAGE>
TWENTY FOURTH SUPPLEMENTAL INDENTURE, dated as of the 13th day of
April, 1987, 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 Manufacturers Hanover Trust Company, 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 dated as follows:
<TABLE>
<S> <C>
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
</TABLE>
and the Company also executed and delivered to said The Hanover Bank, as
Trustee, Subordination Agreements dated December 29, 1950 and September 19,
<PAGE>
2
1955 also supplementing the Original Indenture, which, as supplemented and
amended by said twenty-three Supplemental Indentures and said Subordination
Agreements, is hereinafter referred to as 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:
<TABLE>
<CAPTION>
Principal Amount
Series Outstanding
------ ----------------
<S> <C>
Series H, 5-1/4%, due May 15, 1987 $ 634,000
Series I, 5-1/8%, due May 1, 1989 865,000
Series J, 5-3/4%, due April 1, 1990 870,000
Series K, 5-5/8%, due August 1, 1990 870,000
Series L, 5-3/8%, due June 1, 1991 875,000
Series M, 5%, due October 1, 1992 875,000
Series N, 4-3/4%, due May 1, 1993 884,000
Series O, 8.05%, due June 1, 1999 4,975,000
Series R, 6-5/8%, due April 1, 2007 5,850,000
Series S, 6-5/8%, due April 1, 2007 2,050,000
Series T, 6-5/8%, due April 1, 2007 1,000,000
Series U, 6-5/8%, due April 1, 2007 1,000,000
Series V, 6.85%, due June 1, 2007 1,550,000
Series W, 6.85%, due June 1, 2007 2,850,000
Series X, 8.375%, due October 1, 1998 6,000,000
-----------
$31,148,000
-----------
</TABLE>
; and
WHEREAS, Section 9.21 of the Original Indenture provides a covenant
requiring the Company upon the acquisition of any shares of stock of any
Subsidiary to deposit and pledge the stock of such Subsidiary to the
Trustee subject to the direct lien of the Indenture and further prohibits
the Company from sanctioning or permitting such Subsidiary from acquiring
any indebtedness in excess of $15,000 except indebtedness issued to the
Company; and
WHEREAS, Section 9.21 of the Original Indenture has been amended to
specifically except Wyodak Resources Development Corp. (defined herein as
"Wyodak Resources"), the Company's wholly owned Subsidiary, from the
requirements and restrictions of Section 9.21 of the Indenture thereby
allowing Wyodak Resources to acquire or create its Subsidiaries free from
the requirements and restrictions of Section 9.21; and
WHEREAS, the Company believes that in properly conducting its business
affairs that it should be allowed to acquire or create Subsidiaries, other
than Subsidiaries of Wyodak Resources, to hold property and to engage in
<PAGE>
3
businesses unrelated to the electric utility business affairs of the
Company and free of any restrictions of the Indenture and to be able to
incur indebtedness other than indebtedness issued to the Company and to
encumber such Subsidiaries' stock without any pledge to the lien of the
Indenture; and
WHEREAS, since the Indenture as supplemented now places no
restrictions on Wyodak Resources' Subsidiaries incurring indebtedness and
keeping the stock of such Subsidiaries free of the lien of the Indenture,
to allow through this Supplemental Indenture for the Company to acquire or
create Subsidiaries other than Subsidiaries of Wyodak Resources free of the
same restrictions would not have any effect on the security of the
Indenture, and as long as the Company is limited from making investments or
advances in or to Subsidiaries from only those funds from which the Company
may pay common stock dividends or any other distribution in respect
thereto, that an amendment of the Indenture which removes Subsidiaries from
the requirements and restrictions of Section 9.21 of the Indenture and
includes Subsidiaries in the dividend restriction provisions of Section
9.16 of the Indenture is consistent with the intent of the Bondholders in
approving the above referred to amendments to Sections 9.16 and 9.21 of the
Indenture and does not impair the security of the Indenture; and
WHEREAS, the Company deems it advisable that the Indenture be amended
as herein provided and the holder of the requisite amount of the
outstanding bonds issued under the Indenture have duly consented, pursuant
to the provisions of Section 18.11 of the Indenture, to the execution of
this Twenty Fourth Supplemental Indenture and have lodged with the Trustee
an instrument duly setting forth such consent; 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 Original 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 Fourth Supplemental
Indenture in the form hereof for the purposes therein provided; and
WHEREAS, all conditions and requirements necessary to make this
Twenty Fourth 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:
<PAGE>
4
ARTICLE ONE
Amendments to the Indenture
SECTION 1.01 Subparagraph (6) of Section 9.16 of Article Nine as set
forth in Section 1.06 of the Fifteenth Supplemental Indenture dated June
15, 1974 is hereby amended as follows:
"(6) The aggregate of all investments or advances by the Company in
or to any Subsidiary."
SECTION 1.02. Section 9.21 of Article Nine as previously amended by
Section 1.07 of the Fifteenth Supplemental Indenture dated June 15, 1974
and by Section 1.06 of the Eighteenth Supplemental Indenture dated May 1,
1976 and by Section 1.03 of the Twenty Second Supplemental Indenture dated
July 14, 1982, is further amended by deleting the first two paragraphs
thereof and amending the third paragraph so that the entire Section 9.21 is
amended to read as follows:
"The Company shall make no investment in any Subsidiary
unless as of the date of the making of an investment therein
the amount of such investment when added to the aggregate of
all investments made prior thereto by the Company in
Subsidiaries shall not be in excess as of such date of
twenty per cent of the total of (1) the capital stock
liability of the Company plus (or minus in the case of a
deficit) the capital surplus and earned surplus of the
Company and (2) any premium on the capital stock of the
Company not included in surplus."
ARTICLE TWO
Miscellaneous Provisions
SECTION 2.01. The Company, by the execution hereof, acknowledges that
a true copy of this Supplemental Indenture has been delivered to and
received by it.
SECTION 2.02. Except as heretofore amended and as amended by this
Supplemental Indenture, all the provisions, terms and conditions or the
Original Indenture shall continue in full force and effect.
SECTION 2.03. 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.
SECTION 2.04. 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.
<PAGE>
5
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 MANUFACTURERS HANOVER TRUST COMPANY, 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, all as of the day and year first above written.
BLACK HILLS CORPORATION
(CORPORATE SEAL)
By GEORGE T. LOCKE
-------------------------------------
Its Senior Vice President - Finance
-------------------------------------
ATTEST:
LOUISE S. KELLEY
- --------------------------------------
Secretary
Signed, sealed and delivered
by BLACK HILLS CORPORATION in
the presence of
ROXANN R. BASHAM
- --------------------------------------
LINDA L. MEYER
- --------------------------------------
<PAGE>
6
MANUFACTURERS HANOVER TRUST COMPANY
By ERNIE F. COCKINGS
-------------------------------------
Its Assistant Vice President
-------------------------------------
ATTEST:
MARK G. WALSH
- --------------------------------------
Its Trust Officer
----------------------------------
Signed, sealed and delivered by
MANUFACTURERS HANOVER TRUST
COMPANY in the presence of:
ELEANOR T. GREEN
- --------------------------------------
MICHAEL F. KIELY
- --------------------------------------
STATE OF SOUTH DAKOTA )
) SS.
COUNTY OF PENNINGTON )
On this 13th day of April, 1987, before me, Jodi Hanson, the undersigned
---- ----- -----------
officer, personally appeared George T. Locke, 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 in
-------------------------------
behalf of the corporation by authority of its Board of Directors for the
purposes therein contained, and the said Senior Vice President - Finance
-------------------------------
acknowledged the same as the free act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
JODI HANSON
----------------------------------------
NOTARY PUBLIC
(SEAL) My Commission expires June 24, 1993
<PAGE>
7
STATE OF NEW YORK )
) SS.
COUNT OF NEW YORK )
On this 13th day of May, 1987, before me, Kathy A. Murphy, the undersigned
---- --- ---------------
officer, personally appeared E. F. Cockings, to me personally known, who
--------------
acknowledged himself to be, and being by me duly sworn, did say that he is
Assistant Vice President of MANUFACTURERS HANOVER TRUST COMPANY, 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
------------------------
in behalf of the corporation by authority of its Board of Directors for the
purposes therein contained, and the said E. F. Cockings acknowledged the same as
--------------
the free act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
KATHY A. MURPHY
-----------------------------------------
NOTARY PUBLIC
(SEAL)
Kathy A. Murphy
Notary Public, State of New York
No. 60-4825140
Qualified in Westchester County
Certificate filed in New York County
Commission Expires July 31, 1988
<PAGE>
8
Counterparts of the foregoing Twenty Fourth Supplemental
Indenture were recorded or filed as follows:
South Dakota Secretary of State:
Counterpart No. 3 recorded 6/15/87 at 4:00 P.M. in Volume 28, Page 13 of
Railway Deeds, Mortgages and Leases Record Book
Dawes County, Nebraska:
Counterpart No. 4 recorded 6/15/87 at 11:35 A.M. in Book 102, Page 1-8
Docket No. 23
Scotts Bluff County, Nebraska:
Counterpart No. 5 recorded 6/15/87 at 1:35 P.M. in General Index for
Mortgages Book 119, Pages 216-223, Document No. 2961
Sioux County, Nebraska:
Counterpart No. 6 recorded 6/15/87 at 8:10 A.M. in Book 45 of Mortgages,
Pages 718-725
Carter County, Montana:
Counterpart No. 7 recorded 6/16/87 at 8:00 A.M. in Book 28 of Mortgages, on
Pages 209-216, Docket No. 160224
Powder River County, Montana:
Counterpart No. 8 recorded 6/15/87 at 10:02 A.M., Book 39MF of Mortgages,
Pages 14-21, Docket No. 114168
Campbell County, Wyoming:
Counterpart No. 9 recorded 6/15/87 at 9:22 A.M. in Book 954 of Photos, Pages
459-466, Docket No. 599912
Crook County, Wyoming:
Counterpart No. 10 recorded 6/15/87 at 9:00 A.M. in Book 262 of Photos,
Pages 344-351, Docket No. 460555
Weston County, Wyoming:
Counterpart No. 11 recorded 6/15/87 at 4:15 P.M., Book 161 of Photos, Pages
24-31, Docket No. 532965
<PAGE>
Conformed Copy
================================================================================
BLACK HILLS CORPORATION
TO
MANUFACTURERS HANOVER TRUST COMPANY,
As Trustee
----------------------
TWENTY FIFTH
SUPPLEMENTAL INDENTURE
Dated as of June 15, 1988
----------------------
Supplemental to Indenture of Mortgage and
Deed of Trust Dated as of September 1, 1941
First Mortgage Bonds, Series Y,
9.49%, due June 15, 2018
================================================================================
<PAGE>
TWENTY FIFTH SUPPLEMENTAL INDENTURE, dated as of the 15th day of
June, 1988, 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 Manufacturers
Hanover Trust Company, 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 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
and the Company also executed and delivered to said The Hanover Bank, as
Trustee, Subordination Agreements dated December 29, 1950 and September 19, 1955
also supplementing the Original Indenture, which, as supplemented and amended by
said twenty-four Supplemental Indentures and said Subordination Agreements, is
hereinafter referred to as the "Indenture"; 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:
<TABLE>
<CAPTION>
Principal Amount
Series Outstanding
------ ----------------
<S> <C>
Series I, 5 1/8%, due May 1, 1989 $ 860,000
Series J, 5 3/4%, due April 1, 1990 865,000
Series K, 5 5/8%, due August 1, 1990 865,000
Series L, 5 3/8%, due June 1, 1991 870,000
Series M, 5%, due October 1, 1992 870,000
Series N, 4 3/4%, due May 1, 1993 879,000
Series O, 8.05%, due June 1, 1999 4,975,000
Series R, 6 5/8%, due April 1, 2007 5,850,000
Series S, 6 5/8%, due April 1, 2007 2,050,000
Series T, 6 5/8%, due April 1, 2007 1,000,000
Series U, 6 5/8%, due April 1, 2007 1,000,000
Series V, 6.85%, due June 1, 2007 1,550,000
Series W, 6.85%, due June 1, 2007 2,850,000
Series X, 8.375%, due October 1, 1998 6,000,000
-----------
$30,484,000
===========
</TABLE>
; and
WHEREAS, the Company has acquired certain property not heretofore
specifically described under the Indenture and it desires to specifically
describe such property; 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 Y, 9.49%,
due June 15, 2018" (herein called "Series Y Bonds"), to be initially
authenticated and delivered in the aggregate principal amount of $6,000,000, in
the form, having the characteristics and being entitled to the benefits 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 Fifth 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;
-2-
<PAGE>
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 Y 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 Y 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 PENNINGTON COUNTY, SOUTH DAKOTA
Utility Lot 1 of Par Subdivision in the unplatted portion of Northeast
Quarter Southeast Quarter and Southeast Quarter Southeast Quarter of
Section 23, Township 1 North, Range 7 East, Black Hills Meridian,
Containing 0.918 acres, more or less.
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,
including but not limited to:
Reserve Capacity Integration Agreement, dated as of May 5, 1987,
between Pacific Power & Light Company and Black Hills Power and Light
Company providing for the integration of the parties reserve capacity
for a term commencing July 1, 1987 and terminating June 30, 2012.
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 building, structures and improvements erected or
constructed on any of the above described tracts of land;
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
-3-
<PAGE>
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, hydro-
electric 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 (EXCEPT, and
not including the Project and Project Site, and all improvements and
appurtenances thereto as defined in and all of which are released from the lien
of the Indenture by the provisions of Article One of the Eighteenth Supplemental
Indenture, dated as of May 1, 1976);
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 Y Bonds, 9.49%
SECTION 1.01. There is hereby created a series of Bonds, known as
and entitled "First Mortgage Bonds, Series Y, 9.49%, due June 15, 2018", and the
form thereof shall be as provided in this Supplemental Indenture.
The aggregate principal amount of Series Y Bonds which may be
authenticated and delivered and outstanding under the Indenture and this
Supplemental Indenture shall be limited in aggregate principal amount to
$6,000,000, except as provided under Section 2.12 of the Indenture. The Series Y
Bonds shall bear interest at the rate of 9.49% per annum until the principal
thereof becomes due and payable and thereafter, if default be made in the
payment of such principal, at the rate of 10.49% per annum until the principal
thereof shall be paid. The Series Y Bonds shall mature June 15, 2018.
-4-
<PAGE>
The Series Y 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 Y Bonds shall be the
date of initial authentication and delivery thereof. The Series Y Bonds shall be
dated as provided in Section 2.05 of the Indenture, and shall be numbered from
YRX1 consecutively upwards. All Series Y Bonds shall bear interest from their
respective dates, such interest to be payable semi-annually on the fifteenth day
of June and December in each year. The first interest payment shall be due
December 15, 1988 and shall include interest from the date of initial
authentication and delivery thereof. The principal of, premium, if any, and
interest on the Series Y 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 Y
Bonds shall be subject to redemption as provided in Sections 1.03 and 1.04 and
Article Two of this Supplemental Indenture.
The Trustee is hereby appointed Registrar in respect of the Series Y
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 Y
Bonds may be served.
The definitive Series Y 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 Y
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 Y
Bonds without coupons, whenever the same shall be required for any such
exchange.
SECTION 1.02. The text of the Series Y 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 Y BONDS)
No. YRX __________________ $ _________________
BLACK HILLS CORPORATION
FIRST MORTGAGE BOND, SERIES Y, 9.49% DUE JUNE 15, 2018
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 15th day of June, 2018, 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 9.49 per cent, per annum (computed
-5-
<PAGE>
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 June
15 and December 15 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,
at the rate of 10.49 per cent, per annum until the principal hereof shall be
paid. The first interest payment shall be due December 15, 1988 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, Manufacturers Hanover
Trust Company, 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 and June 15, 1988, and Subordination Agreements dated
December 29, 1950 and September 19, 1955 (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 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.
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 per cent in principal amount of the Bonds
then outstanding and entitled to consent, and of not less than sixty-six and
two-thirds per cent, 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 coupons 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, or which
would modify, without the written consent of the Trustee, the rights, duties or
immunities of the Trustee.
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 entitled "First Mortgage Bonds, Series Y, 9.49%, due June 15,
2018" (the "Series Y Bonds").
-6-
<PAGE>
Optional Redemption. On and after June 15, 1991, the Series Y Bonds
-------------------
are subject to redemption, in whole or in part at the option of the Company upon
at least thirty (30) days and not more than fifty (50) days notice, mailed to
all registered owners of Series Y Bonds 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, at the
following redemption price:
A. On (but not before) or after June 15, 1991, and prior to June
15, 2008, the price of the Series Y Bonds to be redeemed shall
be (a) 100% of the principal amount of the Series Y Bonds to be
redeemed, plus (b) accrued interest to the date fixed for
redemption, plus (c) a Make-Whole Premium.
The "Make-Whole Premium" shall mean the product of the excess,
if any, of (a) the present value as of the date of redemption of
all remaining scheduled principal and interest payments,
including the principal payment at final maturity and the
remaining scheduled interest payments on the Series Y Bonds
(determined by discounting such amounts at the Reinvestment
Yield from the respective dates on which such principal and
interest payments are payable), minus 100% of the principal
amount of the outstanding Series Y Bonds, times (b) a fraction,
the numerator which is the principal amount of the Series Y
Bonds being redeemed on such date pursuant to this Section and
the denominator of which is 100% of the principal amount of the
then outstanding Series Y Bonds.
"Reinvestment Yield" shall mean the rate published in the weekly
statistical release designated H.15(519) of the Federal Reserve
System under the caption "U.S. Government Securities-Treasury
Constant Maturities" the ("Statistical Release") (or if the
Statistical Release is not published, such reasonably comparable
index as may be designated by the holders of 66 2/3% in
aggregate principal amount of the Series Y Bonds outstanding)
for the maturity corresponding to the remaining Average Term to
Maturity of the Series Y Bonds as of the date of redemption,
rounded to the nearest month, plus 75 basis points. If no
maturity exactly corresponds to such Average Term to Maturity of
the Series Y Bonds, yields for the terms just before and just
after the Average Term to Maturity of the Series Y Bonds shall
be calculated pursuant to the immediately preceding sentence and
the Reinvestment Yield will be interpolated from such yields on
a straight-line basis, rounding each of the relevant periods to
the nearest month. For the purposes of calculating the
Reinvestment Yield, the most recent Statistical Release
published prior to the date of determination hereunder shall be
used.
"Average Term to Maturity" shall mean, as of the time of
determination thereof, the number of years obtained by dividing
the Remaining Dollar-Years of the Series Y Bonds by the then
outstanding principal amount of the Series Y Bonds. The term
"Remaining Dollar-Years of the Series Y Bonds" shall mean the
amount obtained by (1) multiplying the amount of each of the
then remaining scheduled principal and interest payments,
including the principal payments at final maturity, by the
number of years (calculated to the nearest one-twelfth) which
will elapse between the date of determination of the Average
Term to Maturity of the Series Y Bonds and the date of each
particular scheduled principal and interest payment and, (2)
totaling all products obtained in (1).
-7-
<PAGE>
B. On (but not before) June 15, 2008, or at any time thereafter, the Series
Y Bonds are subject to redemption upon payment of accrued interest to the
redemption date plus the applicable percentage of the principal amount
thereof set forth below:
<TABLE>
<CAPTION>
If Redeemed During 12
Month Period Beginning
June 15 Percentage
---------------------- ----------
<S> <C>
2008 102.945
2009 102.618
2010 102.291
2011 101.963
2012 101.636
2013 101.309
2014 . 100.982
2015 100.654
2016 100.327
2017 100.000
</TABLE>
Mandatory sinking fund. The Series Y Bonds are subject to redemption,
----------------------
pursuant to the terms of the mandatory sinking fund provided for in the
Indenture. Beginning on June 15, 1998, and on each June 15 thereafter, there
shall become due and payable, and the Company will pay the principal sum of
$290,000 on the principal indebtedness evidenced by the Series Y Bonds plus
accrued interest thereon to the redemption date. No premium shall be payable in
connection with any payment made pursuant to this Section.
Optional sinking fund. On June 15, 2008 and thereafter on any Series
---------------------
Y Sinking Fund Payment Date as defined in the Supplemental Indenture, the
Company shall have the option to double the mandatory sinking fund payment as
long as the aggregate principal amount of the Series Y Bonds retired pursuant to
this option does not exceed twenty-five per cent (25%) of the original principal
amount of the Series Y Bonds. The right to make such additional sinking fund
payments will not be cumulative and to the extent not exercised in any year will
lapse.
The Series Y Bonds are further subject to redemption, in whole or in
part, by application of monies deposited with the Trustee in certain cases for
the release of properties from the lien of the Indenture, at any time with the
giving of the requested notice, all subject to the conditions and at the
redemption price as more fully set forth in the Indenture.
The particular Series Y 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 Y 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.
-8-
<PAGE>
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 Y, 9.49%, due June 15, 2018, are
issuable as fully registered Bonds without coupons of the denominations 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 Y 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.
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.
-9-
<PAGE>
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.
MANUFACTURERS HANOVER TRUST
COMPANY, as Trustee,
By _____________________________________
Authorized Officer.
SECTION 1.03. The Series Y Bonds shall be redeemable (except as
otherwise provided in the last paragraph of this Section 1.03 or in Section 2.03
of this Supplemental Indenture) at the option of the Company, at any time and
from time to time, in whole or in part, on or after June 15, 1991, in the manner
and upon the notice provided in Article Ten of the Indenture, at the redemption
prices, and subject to the conditions, set forth in the form of Series Y Bonds
provided in Section 1.02 of this Supplemental Indenture, together, in each case,
with accrued interest to the redemption date. In the case of any redemption of
Series Y Bonds for which the Make-Whole Premium set forth in the form of Series
Y Bonds provided in Section 1.02 of this Supplemental Indenture may be payable,
the Company will give written notice to the registered owners of the Series Y
Bonds to be redeemed, and to the Trustee, by telecopy or other same day written
communication, three business days prior to the date fixed for redemption, which
notice shall set forth the Make-Whole Premium, if any, applicable to the Series
Y Bonds to be redeemed, and the calculations used to determine the amount of
such premium.
Any monies applied to the redemption of Series Y Bonds pursuant to
the provisions of Section 8.08(a) of the Indenture on or after June 15, 1991 and
on or before June 14, 2008, and any monies applied to the redemption of Series Y
Bonds pursuant to the provisions of Section 8.08(b) of the the Indenture on or
before June 14, 2008, shall be so applied at a redemption price equal to 100% of
the principal amount of the Series Y Bonds to be redeemed, plus accrued interest
to the redemption date, plus an amount equal to the Make-Whole Premium set forth
in the form of the Series Y Bonds provided in Section 1.02
-10-
<PAGE>
of this Supplemental Indenture. Monies applied to the redemption of Series Y
Bonds pursuant to the provisions of Section 8.08(a) or Section 8.08(b) of the
Indenture on or after June 15, 2008, shall be applied at a redemption price
equal to the applicable percentage of the principal amount of the Series Y Bonds
to be redeemed set forth in the form of the Series Y Bonds provided in Section
1.02 of this Supplemental Indenture plus 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 Y Bonds, the particular Bonds or parts thereof to be redeemed
shall be selected by the Trustee from the outstanding Series Y Bonds not
previously called for redemption as nearly as practicable pro-rata among the
registered holders of the Series Y Bonds according to the respective principal
amounts of such Bonds, provided that the portions of the principal of Series Y
Bonds at any time so selected for redemption in part shall be equal to $1,000 or
an integral multiple thereof.
ARTICLE TWO
Sinking Fund for Series Y Bonds
SECTION 2.01. As a sinking fund for the retirement of Series Y
Bonds, so long as any of the Series Y Bonds shall be outstanding, the Company
will deposit with the Trustee on June 14, 1998, and annually thereafter on each
June 14 to and including June 14, 2017 (each such date being herein sometimes
referred to as a "Series Y Sinking Fund Payment Date"), cash in an amount
sufficient for the redemption of $290,000 aggregate principal amount of Series Y
Bonds on the next ensuing June 15 at a redemption price of 100% of the principal
amount thereof, together, in each case, with accrued interest to the redemption
date, and thereupon the Trustee shall apply such cash to the redemption of said
aggregate principal amount of the Bonds of said series on said next ensuing June
15. Any redemption of less than all of the Series Y Bonds shall not relieve the
Company of its obligation to redeem Series Y Bonds in accordance with the
requirements of this Section 2.01.
SECTION 2.02. In addition to the mandatory sinking fund payments
required by Section 2.01 of this Supplemental Indenture, on June 15, 2008 and on
any Series Y Sinking Fund Payment Date thereafter, the Company shall have the
option to double the mandatory sinking fund payment as long as the aggregate
principal amount of the Series Y Bonds retired pursuant to this Section 2.02
does not exceed twenty-five percent (25%) of the original principal amount of
the Series Y Bonds. Any redemption pursuant to this Section 2.02 shall be at a
redemption price of 100% of the principal amount of the Series Y Bonds to be
redeemed, together in each case, with accrued interest to the redemption date.
Moneys deposited with the Trustee pursuant to this Section 2.02 shall be applied
by the Trustee to the redemption of Series Y Bonds on the next ensuing June 15.
In the event the Company shall elect to redeem Series Y Bonds pursuant to the
provisions of this Section 2.02, the Company shall give written notice of such
election to the Trustee on or before the 55th day prior to the applicable Series
Y Sinking Fund Payment Date.
SECTION 2.03. Whenever the Trustee shall be required to redeem Bonds
pursuant to the provisions of Section 2.01 or Section 2.02 of this Supplemental
Indenture, the Trustee shall, on or before the 45th day prior to the Series Y
Sinking Fund Payment
-11-
<PAGE>
Date, proceed to select for redemption, from the Bonds of said series, in the
manner provided in Section 1.04 of this Supplemental Indenture, the aggregate
principal amount of Bonds of said series required by the provisions of said
Section 2.01 and Section 2.02 to be redeemed by application of the cash to be
paid to the Trustee on said Series Y Sinking Fund Payment Date, and for and on
behalf of the Company and in the name of the Company, the Trustee shall give
notice, as required by the provisions of Article Ten of the Indenture, of the
redemption for the Series Y Sinking Fund of the Bonds so selected. Subject to
the provisions of this Article, the redemption of such Bonds shall be effected
in the manner and upon the terms provided in Section 10.03 of the Indenture at
the sinking fund redemption price of 100% of the principal amount thereof,
together, in each case, with accrued interest to the redemption date.
ARTICLE THREE
Miscellaneous Provisions
SECTION 3.01. The Company covenants that so long as any Series Y
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.
SECTION 3.02 The Company further covenants that so long as any
Series Y Bonds shall remain outstanding, the Company will not, without the
consent of the holder of each of the Series Y Bonds, revise the original
schedule of sinking fund payments as provided in Section 2.01 of this
Supplemental Indenture or modify any of the redemption prices for the Series Y
Bonds as provided in the form of the Series Y Bonds provided in Section 1.02 of
this Supplemental Indenture. The provisions of this covenant can only be
modified, amended or otherwise waived with approval from all of the holders of
Series Y Bonds outstanding, excluding any Series Y Bonds held by the Company.
SECTION 3.03. The aggregate principal amount of Bonds which,
immediately after the authentication and delivery of the Series Y 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 $36,484,000, consisting of the Bonds of Series I through
Series O and Series R through Series X hereinbefore set forth in the second
recital of this Supplemental Indenture and $6,000,000 aggregate principal amount
of Series Y Bonds hereby created.
SECTION 3.04. The Company, by the execution hereof, acknowledges
that a true copy of this Supplemental Indenture has been delivered to and
received by it.
SECTION 3.05. Except as amended by this Supplemental Indenture, all
the provisions, terms and conditions of the Indenture shall continue in full
force and effect.
SECTION 3.06. 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.
-12-
<PAGE>
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 MANUFACTURERS HANOVER TRUST COMPANY, 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, all as of
the day and year first above written.
BLACK HILLS CORPORATION
[Corporate Seal]
By George T. Locke
-------------------------------------
Senior Vice President-Finance
ATTEST:
David E. Morrill
- --------------------------------------
Assistant Secretary
Signed, sealed and delivered by
BLACK HILLS CORPORATION in the
presence of:
Neil Farina
- --------------------------------------
Patricia McDermott
- --------------------------------------
MANUFACTURERS HANOVER TRUST
COMPANY
[Corporate Seal]
By W. B. Dodge
-------------------------------------
Assistant Vice President
ATTEST:
Mark G. Walsh
- --------------------------------------
Assistant Secretary
Signed, sealed and delivered by
MANUFACTURERS HANOVER TRUST
COMPANY in the presence of:
Neil Farina
- --------------------------------------
Patricia McDermott
- --------------------------------------
-13-
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 15th day of June, 1988 before me, Peter Ferreri, the
---------------------- -------------
undersigned officer, personally appeared George T. Locke, 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 in behalf of the corporation by authority of its Board of Directors for
the purposes therein contained, and the said George T. Locke acknowledged the
same as the free act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
[Notarial Seal] Peter Ferreri
-----------------------------------------
Notary Public
Peter Ferreri
Notary Public, State of New York
No. 41-6278425
Qualified in Queens County
Certificate filed in New York County
Commission Expires October 31, 1988
-14-
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 15th day of June, 1988 before me, Peter Ferreri, the
---------------------- -------------
undersigned officer, personally appeared W. B. Dodge, to me personally known,
-----------
who acknowledged himself to be, and being by me duly sworn, did say that he is
Assistant Vice President of MANUFACTURERS HANOVER TRUST COMPANY, 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 in behalf of the corporation by authority of its Board of Directors for
the purposes therein contained, and the said W. B. Dodge acknowledged the same
-----------
as the free act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
[Notarial Seal] Peter Ferreri
-----------------------------------------
Notary Public
Peter Ferreri
Notary Public, State of New York
No. 41-6278425
Qualified in Queens County
Certificate filed in New York County
Commission Expires October 31, 1988
-15-
<PAGE>
EXHIBIT 4.06
------------
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:
<TABLE>
<S> <C>
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
</TABLE>
<PAGE>
<TABLE>
<S> <C>
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
</TABLE>
[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 Supplemental 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
2
<PAGE>
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
3
<PAGE>
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,
4
<PAGE>
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;
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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;
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(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 to read as follows:
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(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
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<PAGE>
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.
9
<PAGE>
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
10
<PAGE>
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
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<PAGE>
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
12
<PAGE>
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
13
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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
14
<PAGE>
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
15
<PAGE>
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
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<PAGE>
(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,
17
<PAGE>
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:
18
<PAGE>
(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,
19
<PAGE>
(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.
20
<PAGE>
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.
21
<PAGE>
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.
22
<PAGE>
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
23
<PAGE>
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
- --------------------------------------
- --------------------------------------
24
<PAGE>
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
25
<PAGE>
________________________ 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)
26
<PAGE>
EXHIBIT 5.01
MORRILL BROWN & THOMAS
625 Ninth Street - 8th Floor
P. O. Box 8108
Rapid City, South Dakota 57709-8108
605-348-7516
June 28, 1994
Board of Directors of
Black Hills Corporation
625 Ninth Street
P. O. Box 1400
Rapid City, SD 57709
Re: Opinion of Counsel
Black Hills Corporation
Form S-3
$100,000,000 of First Mortgage Bonds
Black Hills Corporation ("Company") is filing with the Securities and
Exchange Commission and Registration Statement on Form S-3 ("Registration
Statement") for the issuance and sale of up to $100,000,000 of First Mortgage
Bonds to be issued in one or more series under, and all equally and ratably
secured by an Indenture of Mortgage and Deed of Trust dated as of September 1,
1941, and supplemented by twenty-seven Supplemental Indentures ("Indenture").
We are general counsel for the Company and represent the Company in connection
with the issuance of the New Bonds.
We are of the opinion that:
1. The Company is a corporation validly incorporated and existing under
the laws of the State of South Dakota and is fully qualified to carry on the
business in which it is now engaged.
2. The Indenture has been duly and validly authorized, executed and
delivered by the Company and, as amended by the Trust Indenture Reform Act of
1990, constitutes a valid binding agreement of the Company, enforceable in
accordance with its terms.
<PAGE>
2. When the Board of Directors has authorized the issuance and sale of a
series of the New Bonds in accordance with the Indenture and adopted a
Supplemental Indenture determining the terms and provisions thereof, and when
such New Bonds have been executed, authenticated and delivered in accordance
with the terms of the Indenture and such Supplemental Indenture, and as
described in the Registration Statement and in the Underwriting Agreement filed
as an exhibit thereto, each such New Bond will be subject to the lien of the
Indenture and will constitute a valid and legally binding obligation of the
Company enforceable in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency or other laws relating to or affecting
enforcement of creditors' rights or by general equity principles.
We hereby consent to the filing of a copy of this opinion as an exhibit to
the Registration Statement. We also consent to the use of this firm's name in
the Registration Statement and the Prospectus constituting a part thereof.
Respectfully submitted,
/s/ Morrill Brown & Thomas
DEM:br
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
EXHIBIT 12.01
(amounts in thousands)
<TABLE>
<CAPTION>
Twelve Three
Year Ended December 31 Months Months
----------------------------------------- Ended Ended
1989 1990 1991 1992 1993 3/31/94 3/31/94
---- ---- ---- ---- ---- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Pre-Tax Income From
Continuing Operations $30,288 $31,675 $31,230 $32,144 $31,911 $31,562 $ 8,171
------- ------- ------- ------- ------- ------- -------
Fixed Charges:
Interest Expense 4,304 4,951 7,922 8,860 8,699 8,681 2,118
Amortization of
Debt Expense 71 69 79 105 118 117 29
Imputed Interest From
Capitalized Lease 2,960 2,851 761 - - - -
------- ------- ------- ------- ------- ------- -------
7,335 7,871 8,762 8,965 8,817 8,798 2,147
------- ------- ------- ------- ------- ------- -------
Total Earnings Plus
Fixed Charges $37,623 $39,546 $39,992 $41,109 $40,728 $40,360 $10,318
======= ======= ======= ======= ======= ======= =======
Total Fixed Charges $ 7,335 $ 7,871 $ 8,762 $ 8,965 $ 8,817 $ 8,798 $ 2,147
======= ======= ======= ======= ======= ======= =======
Ratio of Earnings To
Fixed Charges 5.1 5.0 4.6 4.6 4.6 4.6 4.8
</TABLE>
<PAGE>
Exhibit 23.01
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated January 28, 1994
included in Black Hills Corporation Annual Report on Form 10-K for the year
ended December 31, 1993 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN & CO.
Minneapolis, Minnesota,
June 28, 1994
<PAGE>
___________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_____________________________________________
Black Hills Corporation
(Exact name of obligor as specified in its charter)
South Dakota 46-0111677
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
625 Ninth Street
Rapid City, South Dakota 57709
(Address of principal executive offices) (Zip Code)
___________________________________________
First Mortgage Bonds
(Title of the indenture securities)
_____________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject. New York State Banking Department, State House,
Albany, New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551 and Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
2
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of
Amendment dated February 17, 1969, August 31, 1977, December 31, 1980,
September 9, 1982, February 28, 1985 and December 2, 1991 (see Exhibit 1 to
Form T-1 filed in connection with Registration Statement No. 33-50010, which
is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 33-46892, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33- 50010, which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, Chemical Bank, a corporation organized and existing under the laws of
the State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 15th day of June, 1994.
CHEMICAL BANK
By /s/ T. C. Knight
----------------------------------
T. C. Knight
Assistant Vice President
3
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1994, published in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ................................. $ 5,741
Interest-bearing balances ......................... 3,768
Securities ..........................................
Held to maturity securities.......................... 7,503
Available for sale securities........................ 15,662
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold................................. 2,514
Securities purchased under agreements to resell.... 995
Loans and lease financing receivables:
Loans and leases, net of unearned income.... $61,140
Less: Allowance for loan and lease losses... 2,315
Less: Allocated transfer risk reserve....... 115
-------
Loans and leases, net of unearned income,
allowance, and reserve............................. 58,710
Assets held in trading accounts...................... 26,249
Premises and fixed assets (including capitalized
leases)............................................ 1,310
Other real estate owned.............................. 642
Investments in unconsolidated subsidiaries and
associated companies............................... 120
Customer's liability to this bank on acceptance
outstanding........................................ 1,093
Intangible assets.................................... 549
Other assets......................................... 7,807
-------
TOTAL ASSETS......................................... $132,663
========
</TABLE>
4
<PAGE>
LIABILITIES
<TABLE>
<S> <C> <C>
Deposits
In domestic offices...................................... $ 49,180
Noninterest-bearing .........................$16,896
Interest-bearing ............................ 32,284
-------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's................................................ 25,612
Noninterest-bearing .........................$ 128
Interest-bearing ............................ 25,484
-------
Federal funds purchased and securities sold under agree-
ments to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased.................................. 10,710
Securities sold under agreements to repurchase........... 1,789
Demand notes issued to the U.S. Treasury.................. 1,493
Trading liabilities....................................... 14,745
Other Borrowed money:
with original maturity of one year or less............... 6,331
with original maturity of more than one year............. 1,031
Mortgage indebtedness and obligations under capitalized
leases................................................... 21
Bank's liability on acceptances executed and outstanding 1,096
Subordinated notes and debentures......................... 3,500
Other liabilities......................................... 9,562
TOTAL LIABILITIES......................................... 125,070
--------
EQUITY CAPITAL
Common stock.............................................. 620
Surplus................................................... 4,501
Undivided profits and capital reserves.................... 2,684
Less: Net unrealized loss on marketable equity
securities......................................... (210)
Cumulative foreign currency translation adjustments....... (2)
TOTAL EQUITY CAPITAL...................................... 7,593
--------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL.............................. $132,663
========
</TABLE>
I, Joseph L. Sclafani, S.V.P. & Controller of the
above-named bank, do hereby declare that this Report of
Condition is true and correct to the best of my knowledge
and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this statement of resources and liabilities. We
declare that it has been examined by us, and to the best
of our knowledge and belief has been prepared in confor-
mance with the instructions and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
WILLIAM B. HARRISON )
5
