SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report: February 3, 1995
BLACK HILLS CORPORATION
State of South Dakota File Number 1-7978 IRS Number 46-0111677
625 Ninth Street
Rapid City, South Dakota 57709
Registrant's telephone number (605) 348-1700
<PAGE>
Item 5. Other Events
On January 27, 1995, the Board of Directors of Black Hills Corporation
("Company") authorized the issuance and sale in an underwritten public
offering of an aggregate of $30,000,000 of the Company's First Mortgage
Bonds, 8.06%, Series AC, due February 1, 2010 ("Bonds") under a
Registration Statement on Form S-3 (Registration no. 33-54329)
("Registration Statement"), the related Prospectus dated July 13, 1994 and
a related Prospectus Supplement, dated January 27, 1995.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits
(c) Exhibits
The following Exhibits are filed as a part of this Report and
as Exhibits to the Registration Statement:
Exhibit 4.05(ad) Thirtieth Supplemental Indenture,
dated February 1, 1995, establishing
the terms of the Bonds.
Exhibit 12.01(a) Computation of Ratio of Earnings to
Fixed Charges
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
BLACK HILLS CORPORATION
By \s\Dale E. Clement
Dale E. Clement, Senior Vice
President - Finance
Dated: February 3, 1995
BLACK HILLS CORPORATION
TO
CHEMICAL BANK,
As Trustee
__________________________
THIRTIETH
SUPPLEMENTAL INDENTURE
Dated as of February 1, 1995
__________________________
Supplemental to Indenture of Mortgage and
Deed of Trust Dated as of September 1, 1941
First Mortgage Bonds, Series AC,
8.06%, due February 1, 2010
<PAGE>
THIRTIETH SUPPLEMENTAL INDENTURE, dated as of the 1st day of
February, 1995, between Black Hills Corporation (which was
formerly named Black Hills Power and Light Company and which now
operates its electric utility operations under the assumed name
of Black Hills Power and Light Company), a corporation organized
and existing under the laws of the State of South Dakota
(hereinafter called the "Company"), party of the first part, and
Chemical Bank, a corporation organized and existing under the
laws of the State of New York, as Trustee under the Indenture
hereinafter mentioned (hereinafter called the "Trustee"), party
of the second part.
WHEREAS, in order to secure an authorized issue of First
Mortgage Bonds of the Company, the Company has executed and
delivered an Indenture of Mortgage and Deed of Trust to Central
Hanover Bank and Trust Company (the successor by various mergers
of which is Chemical Bank), as Trustee, dated September 1, 1941,
hereinafter referred to as the "Original Indenture," and has also
executed and delivered to said Trustee and its predecessors, as
Trustee, various Supplemental Indentures supplementing and/or
modifying the Original Indenture, respectively dated as follows:
First Supplemental Indenture July 15, 1945
Second Supplemental Indenture January 15, 1948
Third Supplemental Indenture January 15, 1949
Fourth Supplemental Indenture March 1, 1950
Fifth Supplemental Indenture March 1, 1952
Sixth Supplemental Indenture July 1, 1956
Seventh Supplemental Indenture May 1, 1957
Eighth Supplemental Indenture May 1, 1959
Ninth Supplemental Indenture April 1, 1960
Tenth Supplemental Indenture August 1, 1960
Eleventh Supplemental Indenture June 1, 1961
Twelfth Supplemental Indenture October 1, 1962
Thirteenth Supplemental Indenture May 1, 1963
Fourteenth Supplemental Indenture June 1, 1969
Fifteenth Supplemental Indenture June 15, 1974
Sixteenth Supplemental Indenture August 1, 1974
Seventeenth Supplemental Indenture July 15, 1975
Eighteenth Supplemental Indenture May 1, 1976
Nineteenth Supplemental Indenture February 15, 1977
Twentieth Supplemental Indenture April 1, 1977
Twenty First Supplemental Indenture June 1, 1977
Twenty Second Supplemental Indenture July 14, 1982
Twenty Third Supplemental Indenture September 1, 1986
Twenty Fourth Supplemental Indenture April 13, 1987
Twenty Fifth Supplemental Indenture June 15, 1988
Twenty Sixth Supplemental Indenture May 15, 1991
Twenty Seventh Supplemental Indenture June 1, 1991
Twenty Ninth Supplemental Indenture September 1, 1994;
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
Series O, 8.05%, due June 1, 1999 $ 4,850,000
Series T, 6-5/8%, due April 1, 2007 840,000
Series U, 6-5/8%, due April 1, 2007 840,000
Series X, 8.375%, due October 1, 1998 2,675,000
Series Y, 9.49%, due June 15, 2018 6,000,000
Series Z, 9.35%, due May 29, 2021 35,000,000
Series AA, 9.00%, due September 1, 2003 10,561,304
Series AB, 8.30%, due September 1, 2024 45,000,000
$105,766,304
; and
WHEREAS, as permitted by the Indenture, the Company, by
resolutions of its Board of Directors duly adopted, has
determined to create a new series of bonds to be known as its
"First Mortgage Bonds, Series AC, 8.06%, due February 1, 2010"
(herein called "Series AC Bonds"), to be initially authenticated
and delivered in the aggregate principal amount of $30,000,000 in
the form, having the characteristics and being entitled to the
benefits as in the Indenture or as in this Supplemental Indenture
provided; and
WHEREAS, the Company, in exercise of the powers and
authority conferred upon and reserved to it under and by virtue
of the provisions of the Indenture, and particularly the
provisions contained in Articles Two and Seventeen thereof, and
pursuant to appropriate resolutions of its Board of Directors,
has duly resolved and determined to make, execute and deliver to
the Trustee a Thirtieth Supplemental Indenture in the form hereof
(herein sometimes referred to as "this Supplemental Indenture")
for the purposes herein provided; and
WHEREAS, all conditions and requirements necessary to make
this Supplemental Indenture a valid, binding and legal instrument
in accordance with its terms have been done, performed and
fulfilled, and the execution and delivery hereof have been in all
respects duly authorized;
NOW THEREFORE, THIS INDENTURE WITNESSETH: That the Company,
in consideration of the premises and of one dollar to it duly
paid by the Trustee at or before the ensealing and delivery of
these presents, the receipt whereof is hereby acknowledged, and
of other good and valuable consideration, in order to better
secure the payment both of the principal of and interest on all
Bonds issued under the Indenture and that may be issued under
this or any other indentures supplemental thereto, according to
their tenor and effect, and the performance by the Company of all
the covenants and conditions herein and therein contained, and in
order to establish the terms of the Series AC 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 AC Bonds as
follows:
The Company does hereby ratify and confirm its Mortgage and
Pledge to the Trustee of all property described in the Indenture;
TOGETHER with all contracts, agreements, rights and
understandings, whether now owned or hereafter acquired for the
purchase or exchange of electric energy or for the making of
connections for exchange of energy or service;
TOGETHER with, all and singular, the tenements,
hereditaments and appurtenances belonging or in any way
appertaining to said property or any part thereof, with the
reversion and reversions, remainder and remainders, tolls, rents,
revenues, issues, earnings, income, products and profits thereof,
and all the estate, right, title and interest and claim
whatsoever, at law as well as in equity, which the Company now
has or may hereafter acquire in and to said property, and every
part and parcel thereof;
TOGETHER with all property, real, personal and mixed
situated upon, connected with, used in connection with, or in any
wise appertaining to any of the property described in the
Indenture or in this Supplemental Indenture, presently owned by
the Company (other than Excepted Property as defined in the
Indenture), and including all rights of way, easements, licenses,
permits, and privileges in connection with or pertaining to all
of such property, whether existing by reason of express or
implied, written or oral, evidences of ownership, rights,
agreements or understandings;
TOGETHER with all electric generating plants and electric
transmission and distribution systems now owned by the Company,
and any additions to or extensions of any such electric
generating plants and electric transmission and distribution
systems, together with all engines, dynamos, motors, generators,
boilers, turbines, pole lines, poles, wires, cross-arms,
insulators, transformers, meters, buildings, erections,
structures, stations, substations, powerhouses, power producing
and power transmitting equipment, water, water rights,
waterwheels, headworks, race-ways, hydraulic-works, hydroelectric
plants, cables, conduits, tools, instruments, apparatus,
appliances, machinery, facilities, fixtures and all other
property used or provided for use in the construction, repair,
maintenance or operation thereof (other than Excepted Property as
defined in the Indenture), and together also with all the rights,
privileges, franchises, easements, licenses, ordinances, rights
of way, liberties, immunities and permits of the Company
howsoever conferred or acquired with respect to the construction,
maintenance, repair or operation of said electric generating
plants and electric transmission or distribution systems, and
each of them, and any additions thereto and extension thereof;
TO HAVE AND TO HOLD all such properties, real, personal and
mixed, mortgaged, pledged or conveyed by the Company as
aforesaid, or intended so to be, unto the Trustee and its
successors and assigns forever;
IN TRUST, NEVERTHELESS, for the same purposes and upon the
same trusts, terms and conditions, and subject to and with the
same provisions and covenants as are set forth in the Indenture
(as amended by this Supplemental Indenture) with the same effect
in all respects as if the property and rights herein described
and herein conveyed to the Trustee had, at the time of the
execution and delivery of the Original Indenture, been owned by
the Company and had been specifically and at length described in
and conveyed to the Trustee by the Original Indenture as a part
of the property therein stated to be conveyed.
ARTICLE ONE
Series AC Bonds, 8.06%
SECTION 1.01. There is hereby created a series of Bonds,
known as and entitled "First Mortgage Bonds, Series AC, 8.06%,
due February 1, 2010", and the form thereof shall be as provided
in this Supplemental Indenture.
The aggregate principal amount of Series AC Bonds which may
be authenticated and delivered and outstanding under the
Indenture and this Supplemental Indenture shall be limited in
aggregate principal amount to $30,000,000, except as provided
under Section 2.12 of the Indenture. The Series AC Bonds shall
bear interest at the rate of 8.06% per annum until the principal
thereof becomes due and payable and shall bear interest on
overdue principal (including any overdue mandatory prepayment of
principal) and premium, if any, and (to the extent legally
enforceable) on any overdue installment of interest at the rate
of 9.06% per annum until such overdue principal, premium or
interest shall be paid. The Series AC Bonds shall mature
February 1, 2010.
The Series AC 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 AC Bonds shall be the date
of initial authentication and delivery thereof. The Series AC
Bonds shall be dated as provided in Section 2.05 of the
Indenture, and shall be numbered from ACRX1 consecutively
upwards. All Series AC Bonds shall bear interest from their
respective issue dates. The principal and interest shall be due
and payable as provided in the Bond form at Section 1.02 of this
Supplemental Indenture. The principal of, premium, if any, and
interest on the Series AC 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 AC Bonds shall be subject to redemption as provided in
Section 1.04 of this Supplemental Indenture and Section 8.08 of
the Indenture.
Without limiting the other indemnities provided to the
Trustee, the Company shall indemnify and save the Trustee
harmless from any liabilities and costs incurred by the Trustee
arising out of the making of the final payment when due of the
principal owing on any of the Series AC Bonds without the
surrender of such Bond to the Trustee.
The Trustee is hereby appointed Registrar in respect of the
Series AC 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 AC Bonds
may be served.
The definitive Series AC 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 AC 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 AC Bonds without coupons, whenever the same
shall be required for any such exchange.
SECTION 1.02. The text of the Series AC 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 AC BONDS)
No. ACRX __________ $________________
BLACK HILLS CORPORATION
FIRST MORTGAGE BOND, SERIES AC, 8.06%, DUE FEBRUARY 1, 2010
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 February, 2010, 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 8.06 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 February 1 and August 1 in each
year until the principal hereof shall have become due and
payable, and thereafter if default be made in the payment of such
principal and premium, if any, and on any overdue installment of
interest, at the rate of 9.06 percent, per annum until such
overdue principal, premium or interest shall be paid. The first
interest payment shall be due August 1, 1995 and shall include
interest from the date of initial authentication and delivery
thereof.
This Bond is one of an authorized issue of Bonds of the
Company known as its "First Mortgage Bonds", issued and to be
issued in one or more series under, and all equally and ratably
secured (except as any sinking, amortization, improvement,
renewal or other analogous fund, established in accordance with
the provisions of the Indenture hereinafter mentioned, may afford
additional security for the Bonds of any particular series) by an
Indenture of Mortgage and Deed of Trust dated as of September 1,
1941 executed by the Company to Central Hanover Bank and Trust
Company (subsequently known as The Hanover Bank and herein, with
its successor by merger, Chemical Bank, called the "Trustee"), as
Trustee, as supplemented and amended by Supplemental Indentures
dated as of July 15, 1945, January 15, 1948, January 15, 1949,
March 1, 1950, March 1, 1952, July 1, 1956, May 1, 1957, May 1,
1959, April 1, 1960, August 1, 1960, June 1, 1961, October 1,
1962, May 1, 1963, June 1, 1969, June 15, 1974, August 1, 1974,
July 15, 1975, May 1, 1976, February 15, 1977, April 1, 1977,
June 1, 1977, July 14, 1982, September 1, 1986, April 13, 1987,
June 15, 1988, May 15, 1991, June 1, 1991, September 1, 1994 and
February 1, 1995 (said Original Indenture as so supplemented and
amended being hereinafter collectively called the "Indenture"),
to which Indenture and all further instruments supplemental
thereto reference is hereby made for a description of the
properties mortgaged and pledged, the nature and extent of the
security, the rights of the holders of said Bonds and the coupons
appurtenant to coupon Bonds, if any, and of the Trustee and of
the Company in respect of such security, and the terms and
conditions upon which said Bonds are and are to be issued and
secured.
As provided in the Indenture, said Bonds are issuable in
series which may vary as in the Indenture provided or permitted.
This Bond is one of a series of Bonds authorized by the Thirtieth
Supplemental Indenture and entitled "First Mortgage Bonds, Series
AC, 8.06%, due February 1, 2010" (the "Series AC 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 AC Bonds to be issued under the terms of the Thirtieth
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 Thirtieth Supplemental Indenture authorizing the Series AC
Bonds. This provision does hereby constitute a written consent
of the Holders, including all successor Holders, of the Series AC
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.
Redemption
This Series AC Bond is not redeemable at the Option of the
Company, as a whole or in part, at any time.
Redemption at Option of Holder
The Holder hereof shall have the option to require the
Company to redeem all or any portion (in integral multiples of
$1,000) of this Series AC Bond on February 1, 2002 (the
"Redemption Date") at a Redemption Price equal to 100% of the
principal hereof to be redeemed, plus interest accrued, if any,
to the Redemption Date. To exercise such option, the Holder
shall deliver or cause to be delivered to the Trustee, and the
Trustee shall receive at its office in the Borough of Manhattan,
the City of New York, during the period beginning December 1,
2001 and ending at 5:00 P.M. (New York City time) on December 31,
2001 (or, if December 31, 2001 is not a business day, on the next
succeeding business day), this Series AC Bond with the form
entitled "Option to Require Redemption on February 1, 2002" on
the reverse side hereof duly completed. Any such exercise of
such option shall be irrevocable. All questions as to the
validity, form, eligibility (including time of receipt) and
acceptance of this Series AC Bond for redemption shall be
determined by the Company, whose determination shall be final and
binding.
Pursuant to the provisions of Section 8.05 of the Indenture,
the Company may request the Trustee to apply moneys deposited
with the Trustee ("Trust Moneys") for various reasons toward the
redemption of those Bonds, including payment of premium and
accrued interest, selected by the Company. In the Thirtieth
Supplemental Indenture, the Company has covenanted not to request
the Trustee to apply any Trust Moneys to the redemption of the
Series AC Bonds prior to February 1, 2010.
Pursuant to the provisions of Section 8.08 of the Indenture,
the Series AC Bonds are further subject to redemption, in whole
or in part, by the Trustee applying certain Trust Moneys which
have been held by the Trustee for a period of over two years.
Any such redemption is made pro rata among the series of Bonds
then outstanding in the ratio of principal amount. Redemption is
at 100 percent of principal, plus any premium due at the time of
redemption and accrued interest to redemption date.
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 AC, 8.06%, due February 1,
2010, 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 AC Bonds, upon surrender
thereof to the Trustee at its principal corporate trust office in
the Borough of Manhattan, The City of New York, are exchangeable
for other Bonds of the same series in such authorized
denomination or denominations in the same aggregate principal
amount, as may be requested by the holders surrendering the same.
The Company and the Trustee may deem and treat the person in
whose name this Bond is registered as the absolute owner hereof,
for the purpose of receiving payment of or on account of the
principal hereof and interest due hereon, and neither the Company
nor the Trustee shall be affected by any notice to the contrary.
Interest payable herein shall be paid to the person in whose name
the Bond is registered at the close of business on January 15 or
July 15 (whether or not on a business day) next preceding the
interest payment date, except for defaulted interest and
unmatured accrued interest on the Series AC Bonds called for
redemption on a date other than an interest payment date.
No recourse shall be had for the payment of the principal of
or the interest on this Bond, or for any claim based hereon or
otherwise in respect hereof or of the Indenture or of any
indenture supplemental thereto, against any incorporator,
stockholder, director or officer, as such, past, present or
future, of the Company or of any predecessor or successor
corporation, either directly or through the Company or any
predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or by any legal or equitable proceeding
or otherwise howsoever; all such liability being, by the
acceptance hereof and as a part of the consideration for the
issuance hereof, expressly waived and released by every holder
hereof, as more fully provided in the Indenture; provided,
however, that nothing herein or in the Indenture contained shall
be taken to prevent recourse to and the enforcement of the
liability, if any, of any shareholder or any stockholder or
subscriber to capital stock upon or in respect of shares of
capital stock not fully paid up.
This Bond shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have
been signed by the Trustee, or its successor as Trustee, under
the Indenture.
IN WITNESS WHEREOF, the Company has caused this Bond to be
signed in its name by its President or one of its Vice
Presidents, and its corporate seal to be impressed or imprinted
hereon and attested by its Secretary or one of its Assistant
Secretaries.
Dated: BLACK HILLS CORPORATION,
By_______________________________
President
ATTEST:
____________________________________
Secretary
(FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION)
This is one of the Bonds, of the series designated therein,
described in the within mentioned Indenture.
CHEMICAL BANK, as Trustee,
By_______________________________
Authorized Officer
(REVERSE SIDE)
Option to Require Redemption on February 1, 2002
The undersigned Holder of this Bond hereby irrevocably
exercises the option to require the Company to make payment and
to cause the Trustee to redeem _____ all/______ $___________
($1,000 or an integral multiple thereof) of the principal amount
hereof on February 1, 2002, and directs the Trustee to make
payment of the Redemption Price, and to issue and deliver a new
Bond or Bonds equal in aggregate principal amount to the
unredeemed principal amount hereof, if any, to such Holder at
such Holder's address in the Bond Register, unless a different
name and/or address has been specified below.
Dated: ________________________ ________________________________
Signature
Payment of the Redemption Issue new Bonds in the
Price and delivery of new principal amounts (each $1,000
Bonds, if any (if other than or an integral multiple
to the registered Holder at thereof) specified below. (If
the address appearing in the no contrary specification is
Bond Register), are to be made made, a single new Bond equal
as follows: unredeemed portion of this
_____________________________ Bond will be issued.)
Name
Address: Number Principal Amount
_____________________________ _________ __________________
_________ __________________
_____________________________ _________ __________________
Social Security or other _________ __________________
identifying number of
owner of New Bond
SECTION 1.03. The Series AC Bonds are not redeemable at the
option of the Company as a whole or in part at any time.
SECTION 1.04. The Holders of the Series AC Bonds shall have
the option to require the Company to redeem all or any portion
(in integral multiples of $1,000) on February 1, 2002 (the
"Redemption Date") at a Redemption Price equal to 100% of the
principal thereof to be redeemed, plus interest accrued, if any,
to the Redemption Date. To exercise such option, the Holder
shall deliver or cause to be delivered to the Trustee, and the
Trustee shall receive at its office in the Borough of Manhattan,
the City of New York, during the period beginning December 1,
2001 and ending at 5:00 P.M. (New York City time) on December 31,
2001 (or, if December 31, 2001 is not a business day, on the next
succeeding business day), those Series AC Bonds which the Holder
desires to redeem with the form entitled "Option to Require
Redemption on February 1, 2002" on the reverse side thereof duly
completed. Any such exercise of such option shall be
irrevocable. All questions as to the validity, form, eligibility
(including time of receipt) and acceptance of Series AC Bonds for
redemption will be determined by the Company, whose determination
shall be final and binding.
SECTION 1.05. 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 AC Bonds, the particular
Bonds or parts thereof to be redeemed shall be selected by the
Trustee from the outstanding Series AC Bonds not previously
called for redemption as nearly as practicable pro rata among the
registered holders of the Series AC Bonds according to the
respective principal amounts of such Bonds, provided that the
portions of the principal of Series AC Bonds at any time so
selected for redemption in part shall be equal to $1,000 or a
multiple thereof.
SECTION 1.06. Notwithstanding that Section 8.05 of the
Indenture authorizes the Company to request the Trustee to apply
Trust Moneys toward the redemption of Bonds to be selected by the
Company, the Company does hereby covenant that the Company will
not request the Trustee to apply any Trust Moneys to the
redemption of the Series AC Bonds prior to February 1, 2010.
ARTICLE TWO
Consent Bonds
The Holders, including any successor Holders, of the Series
AC Bonds to be issued under the terms of this Supplemental
Indenture, by becoming such Holders shall be deemed to have
consented to the Twenty Eighth Supplemental Indenture ("Proposed
Supplement"), a copy of which is attached as Exhibit A to this
Supplemental Indenture. This provision does hereby constitute a
written consent of the Holders, including all successor Holders,
of the Series AC Bonds to the execution and adoption of the
Proposed Supplement under the provisions of Section 18.11 of the
Indenture, and such consent is received by the Trustee as a
consent for the Trustee to execute the Proposed Supplement in
lieu of the holding of a meeting of Bondholders pursuant to
Article Eighteen of the Indenture.
ARTICLE THREE
Miscellaneous Provisions
SECTION 3.01. The Company covenants that so long as any
Series AC Bonds shall remain outstanding it will comply with the
covenants contained in Sections 9.06, 9.15, 9.16, 9.20 and 9.22
of the Indenture; provided, if the Proposed Supplement as
referenced in Article Two of this Supplemental Indenture is
adopted, this covenant would no longer apply to Sections 9.06,
9.15 and 9.20, which would be deleted by the Proposed Supplement,
and would apply to Sections 9.16 and 9.22 as would be amended by
the Proposed Supplement.
SECTION 3.02. The aggregate principal amount of Bonds
which, immediately after the authentication and delivery of the
Series AC 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
$105,766,304, consisting of the Bonds of Series O, T, U, X, Y, Z,
AA and AB hereinbefore set forth in the second recital of this
Supplemental Indenture and $30,000,000 aggregate principal amount
of Series AC Bonds hereby created.
SECTION 3.03. The Company, by the execution hereof,
acknowledges that a true copy of this Supplemental Indenture has
been delivered to and received by it.
SECTION 3.04. Except as amended by this Supplemental
Indenture, all the provisions, terms and conditions of the
Indenture shall continue in full force and effect.
SECTION 3.05. This Supplemental Indenture may be executed
in several counterparts, all or any of which may be treated for
all purposes as one original and shall constitute and be one and
the same instrument.
IN WITNESS WHEREOF, BLACK HILLS CORPORATION, party hereto of
the first part, has caused this Supplemental Indenture to be
executed on its behalf by its Chairman of the Board or its
President or one of its Vice Presidents and its corporate seal to
be hereto affixed and to be attested by its Secretary or an
Assistant Secretary, and CHEMICAL BANK, party hereto of the
second part, in evidence of its acceptance of the trust hereby
created, has caused this Supplemental Indenture to be executed on
its behalf by one of its Vice Presidents or Assistant Vice
Presidents and its corporate seal to be hereto affixed and to be
attested by a Trust Officer, all as of the day and year first
above written.
BLACK HILLS CORPORATION
[Corporate Seal] By /s/ Dale E. Clement
Senior Vice President - Finance
ATTEST:
/s/ Roxann R. Basham
Secretary
Signed, sealed and delivered by
BLACK HILLS CORPORATION in the
presence of:
/s/ David E. Morrill
/s/ Barbara Rask
CHEMICAL BANK
[Corporate Seal] By /s/ T. C. Knight
Assistant Vice President
ATTEST:
/s/ Andrew M. Deck
Trust Officer
Signed, sealed and delivered by
CHEMICAL BANK in the presence of:
/s/ Glenn G. McKeever
/s/ Michael A. Smith
STATE OF SOUTH DAKOTA )
) ss.:
COUNTY OF PENNINGTON )
On this 2nd day of February, 1995, before me, Barbara Rask,
the undersigned officer, personally appeared Dale E. Clement, to
me personally known, who acknowledged himself to be, and being by
me duly sworn, did say that he is Senior Vice President - Finance
of BLACK HILLS CORPORATION, a corporation, and that the seal
affixed to the foregoing instrument is the corporate seal of said
corporation and that said instrument was executed by, and signed
in the name of, the corporation, by him, as such Senior Vice
President - Finance and sealed on behalf of the corporation by
authority of its Board of Directors for the purposes therein
contained, and the said Dale E. Clement acknowledged the same as
the free act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
My Comm. Exp. July 25, 1999 /s/ Barbara Rask
[Notarial Seal] Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 1st day of February, 1995, before me, Emily Fayan, the
undersigned officer, personally appeared T. C. Knight, to me
personally known, who acknowledged himself to be, and being by me
duly sworn, did say that he is an Assistant Vice President of
CHEMICAL BANK, a corporation, and that the seal affixed to the
foregoing instrument is the corporate seal of said corporation
and that said instrument was executed by, and signed in the name
of, the corporation, by him, as such Assistant Vice President,
and sealed on behalf of the corporation by authority of its Board
of Directors for the purposes therein contained, and the said T.
C. Knight acknowledged the same as the free act and deed of said
corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Emily Fayan
[Notarial Seal] Notary Public
EXHIBIT A
to Thirtieth Supplemental Indenture
PROPOSED
TWENTY EIGHTH SUPPLEMENTAL INDENTURE
TWENTY EIGHTH SUPPLEMENTAL INDENTURE, dated as of the ______
day of _________________, 19__, between Black Hills Corporation
(formerly named and now operating its electric utility division
as Black Hills Power and Light Company), a corporation organized
and existing under the laws of the State of South Dakota
(hereinafter called the "Company"), party of the first part, and
Chemical Bank, a corporation organized and existing under the
laws of the State of New York, as Trustee under the Indenture
hereinafter mentioned (hereinafter called the "Trustee"), party
of the second part.
WHEREAS, in order to secure an authorized issue of First
Mortgage Bonds of the Company, the Company has executed and
delivered an Indenture of Mortgage and Deed of Trust to Central
Hanover Bank and Trust Company (subsequently known as The Hanover
Bank) as Trustee, dated September 1, 1941, hereinafter referred
to as the "Original Indenture," and has also executed and
delivered to said Trustee and to Manufacturers Hanover Trust
Company (which on September 8, 1961 became the Trustee under the
Original Indenture, as theretofore supplemented and amended, by
virtue of the merger of said The Hanover Bank into Manufacturers
Trust Company, under said name Manufacturers Hanover Trust
Company), as Trustee, various Supplemental Indentures
supplementing and/or modifying the Original Indenture,
respectively referred to herein and dated as follows:
First Supplemental Indenture July 15, 1945
Second Supplemental Indenture January 15, 1948
Third Supplemental Indenture January 15, 1949
Fourth Supplemental Indenture March 1, 1950
Fifth Supplemental Indenture March 1, 1952
Sixth Supplemental Indenture July 1, 1956
Seventh Supplemental Indenture May 1, 1957
Eighth Supplemental Indenture May 1, 1959
Ninth Supplemental Indenture April 1, 1960
Tenth Supplemental Indenture August 1, 1960
Eleventh Supplemental Indenture June 1, 1961
Twelfth Supplemental Indenture October 1, 1962
Thirteenth Supplemental Indenture May 1, 1963
Fourteenth Supplemental Indenture June 1, 1969
Fifteenth Supplemental Indenture June 15, 1974
Sixteenth Supplemental Indenture August 1, 1974
Seventeenth Supplemental Indenture July 15, 1975
Eighteenth Supplemental Indenture May 1, 1976
Nineteenth Supplemental Indenture February 15, 1977
Twentieth Supplemental Indenture April 1, 1977
Twenty First Supplemental Indenture June 1, 1977
Twenty Second Supplemental Indenture July 14, 1982
Twenty Third Supplemental Indenture September 1, 1986
Twenty Fourth Supplemental Indenture April 13, 1987
Twenty Fifth Supplemental Indenture June 15, 1988
Twenty Sixth Supplemental Indenture May 15, 1991
Twenty Seventh Supplemental Indenture June 1, 1991
Twenty Eighth Supplemental Indenture (when executed)
Twenty Ninth Supplemental Indenture September 1, 1994
Thirtieth Supplemental Indenture February 1, 1995
[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
WHEREAS, the Company, in the exercise of the powers and
authority conferred upon and reserved to it under and by virtue
of the provisions of the Indenture, and particularly the
provisions contained in Articles Seventeen and Eighteen thereof,
and pursuant to appropriate resolutions of its Board of Directors
has duly resolved and determined to make, execute and deliver to
the Trustee the Twenty Eighth Supplemental Indenture in the form
hereof for the purposes therein provided; and
WHEREAS, all conditions and requirements necessary to make
this Twenty Eighth Supplemental Indenture a valid, binding and
legal instrument in accordance with its terms have been done,
performed and fulfilled, and the execution and delivery hereof
have been in all respects duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That the Company, in consideration of the premises and one
dollar to it duly paid by the Trustee at or before the ensealing
and delivery of these presents, the receipt whereof is hereby
acknowledged, and of other good and valuable consideration, in
order to amend certain provisions of the Indenture, hereby
further covenants and agrees to and with the Trustee and its
successors in the trust under the Indenture for the benefit of
all those who shall from time to time hold the Bonds as follows:
ARTICLE ONE
Amendments to the Indenture
1.01. Deletion of Contracts, Leases and Franchises from
the Lien of the Indenture. The following granting clauses:
Eleventh--Certain Contracts, Twelfth--Leases and Thirteenth--
Franchises are deleted from the Indenture and any and all
property interests described in the Eleventh, Twelfth and
Thirteenth Granting Clauses are hereby released from the Lien of
the Indenture. Subparagraphs (e) and (f) of Section 7.01 of
Article Seven are deleted from the Indenture.
1.02. Obligation to Maintain Business. Section 9.13 of
Article Nine of the Indenture is amended so as to read as
follows:
SECTION 9.13. Except in the case of a merger,
consolidation, conveyance or transfer as in Article Fourteen
provided, the Company will at all times maintain its corporate
existence and right to carry on business, and will duly procure
all renewals and extensions thereof, and shall do or cause to be
done all things necessary to preserve and keep in full force and
effect its corporate existence and rights and franchises of the
Company; provided, however, that the Company shall not be
required to preserve any such right or franchise if, in the
judgment of the Company, the preservation thereof is no longer
desirable in the conduct of the business of the Company and the
loss thereof would not adversely affect the interests of the
Bondholders in any material respect. The Company will not enter
into any merger or consolidation, or make any conveyance or lease
of all or substantially all of the Trust Estate as an entirety
unless, in connection therewith, the Company and/or the successor
corporation and/or the lessee, as the case may be, shall observe
and comply with the terms and conditions of Article Fourteen
applicable to such transaction.
The first paragraph of Section 9.05 of Article Nine of the
Indenture is amended so as to read as follows:
SECTION 9.05. The Company covenants that the business
of the Company will be carried on and conducted in an efficient
manner; all property, plants, appliances and equipment of the
Company useful in the carrying on of its business will be kept in
repair and maintained in good working order and condition, and if
worn or injured will be replaced by other property suitable to
the business of the Company and of at least equal value.
1.03. Excepted Property. The Sixteenth Granting Clause
of the Indenture is hereby amended so as to read as follows:
SIXTEENTH
EXCEPTED PROPERTY
There is, however, expressly excepted and excluded from the
Lien of this Indenture the following described property of the
Company, herein sometimes referred to as "Excepted Property":
A. all cash on hand, in banks or in other financial
institutions with which the Company maintains deposits, shares of
stock, bonds, notes, evidences of indebtedness and other
securities not hereafter paid or delivered to, deposited with, or
held by, the Trustee hereunder or required so to be;
B. all contracts, leases and other agreements of
whatsoever kind and nature (including pole attachment agreements
and joint pole agreements), contract rights, bills, notes and
other instruments, accounts receivable, claims, credits, demands,
judgments, choses in action, patents, patent licenses and other
patent rights, patent applications, trade names, trademarks and
other general intangibles;
C. all permits, licenses, franchises (including
municipal franchises and other rights to use public ways) and
rights (however characterized) granted by any governmental entity
with respect to air, water or other types of pollution or
pollution credits;
D. all motor vehicles, automobiles, buses, trucks,
truck cranes, tractors, trailers and similar vehicles, movable
equipment, all rolling stock, railcars, containers and other
railroad equipment, all vessels, boats, barges and other marine
equipment, all airplanes, airplane engines and flight equipment,
and all components, spare parts, accessories, supplies and fuel
used or to be used in connection with any of the foregoing;
E. all goods, wares, merchandise, equipment, spare
parts and tools held for sale or lease in the ordinary course of
business or for use or consumption in, or in the operation of,
any properties of, or for the benefit of, the Company, or held in
advance of use thereof for maintenance, replacement or fixed
capital purposes; all fuel, materials and supplies and other
personal property which are consumable (otherwise than by
ordinary wear and tear) in their use in the electric utility
business;
F. all office furniture and office equipment; all
satellites and other equipment and materials used or to be used
in outer space; all business machines; all communications
equipment (including telephone equipment); all computer
equipment; all record production, storage and retrieval
equipment; and all components, spare parts, accessories, programs
(other than computer software) and supplies used or to be used in
connection with any of the foregoing;
G. all crops, timber, sand, gravel, rocks, earth,
natural gas, coal, ore, uranium, gas, oil and other minerals
harvested, mined or extracted or otherwise separated from the
land, or lying or being upon, within or under any properties of
the Company, including the Trust Estate, all mineral rights,
leases and royalties and income therefrom, and all rights to
explore for minerals, and gas or oil wells or any lease or real
estate acquired for the purpose of obtaining gas or oil rights;
H. all electric energy, steam, water, ice and other
products generated, manufactured, produced, provided or purchased
by the Company for sale, transmission or distribution or used or
to be used by the Company;
I. all leasehold interests and leasehold
improvements;
J. all property, real, personal and mixed, which is:
(i) not specifically subjected or required to be
subjected to the Lien of this Indenture by any express provision
hereof; and
(ii) not used or to be used in the electric
utility business, or in connection with the operation of any
property specifically subjected or required to be subjected to
the Lien of this Indenture by the express provisions hereof;
K. the Company's franchise to be a corporation; and
L. all books and records;
it being understood that the Company may, however, pursuant
to the Fifteenth Granting Clause of the Indenture, subject to the
Lien of this Indenture any Excepted Property, whereupon the same
shall cease to be Excepted Property.
1.04. Property Additions--Definition. Paragraph A of
Section 4.01 of Article Four of the Indenture is hereby amended
so as to read as follows:
A. The term "Property Additions" shall mean real
estate owned in fee, easements and rights of way in
respect of real estate, buildings, electric lines,
reservoirs, structures, machinery, meters, equipment
and other tangible properties, real, personal or mixed
useful to the Company in the business (hereinafter
called "Electric Business") of generation,
transmission, distribution and/or sale of electricity,
including whole or undivided interests in any of such
properties (such properties being hereinafter sometimes
referred to as "Electric Properties") purchased,
constructed or otherwise acquired by the Company
subsequent to October 31, 1941; and the term "Property
Additions" shall include
(1) property of the character above described
acquired by the Company by merger or consolidation as well as
property purchased or constructed by the Company;
(2) new plants and systems of the character above
described;
(3) all construction work in progress in the
amount as recorded on the books of account of the Company under
generally accepted accounting principles;
(4) property of the character above described
constructed or acquired to replace an item of property whose
retirement has been credited to plant account; and
(5) any Excepted Property and other property of
the Company that the Company elects to be included under the Lien
of the Indenture.
If the Company shall, as provided in Article Fourteen,
consolidate with or merge into or convey all or substantially all
of the Trust Estate as an entirety to any other corporation, and
such successor corporation shall execute a supplemental indenture
of the character described in Paragraph A of Section 14.02, all
property of the character herein described as Property Additions
and owned by such successor corporation at the time of such
consolidation, merger or conveyance, or acquired by it by such
consolidation, merger or conveyance (excluding Bonded Property
acquired from the Company), shall be deemed to be Property
Additions acquired by such successor corporation at the date upon
which it became such successor corporation.
Among other properties not constituting Property
Additions under the foregoing provisions, the term "Property
Additions" shall not be deemed to include
(7) any item of property constructed or acquired
to replace a similar item of property whose retirement has not
been credited to plant account; or any property whose cost has
been charged, or is properly chargeable, to repairs or
maintenance or other operating expense account, or whose cost has
not been charged, or is not properly chargeable, to plant
account;
(8) any Excepted Property unless the Company
elects to cause the Excepted Property to be subject to the Lien
of the Indenture; or
(9) going concern value or good will, or
franchises or governmental permits granted to or acquired by the
Company, separate and distinct from the property operated
thereunder.
1.05. Additions Credit not Bonded Property. Clause (2)
of Paragraph K of Section 4.01 of Article Four is hereby amended
so as to read as follows:
(2) All Property Additions which have been made the
basis for the authentication and delivery of Bonds or the release
of any Bonded Property from the Lien of this Indenture or the
withdrawal of any Bonded Cash (or Unbonded Cash, if withdrawn
under Section 8.03) from the Trustee, but not including Additions
Credits within the meaning of Paragraph N of this Section.
1.06. Addition Credit--Definition. Paragraph N of
Section 4.01 of Article Four of the Indenture is hereby amended
so as to read as follows:
N. "Additions Credit."
If and whenever any Net Bondable Additions or
Gross Bondable Additions are certified or made a part of an
application to the Trustee for any purpose under this Indenture,
any amount is in excess of that required for such purpose, the
excess amount shall constitute an Additions Credit and may be
carried forward and used as Property Additions for additional
certifications and applications under this Indenture. The
Company shall have the right, at any time and from time to time,
to establish an Additions Credit by delivering to the Trustee the
Certificates, Opinions and Other Instruments which would be
required to be delivered to the Trustee under Section 4.02 B,
Clauses (1) through (11), (13) and (14) and Sections 4.02,
Paragraphs C, D and E of this Indenture.
1.07. Certifiable Net Earnings. Paragraph O of Section
4.01 of Article Four of the Indenture as amended by Section 3.04
of Article Three of the Third Supplemental Indenture, and as
amended by Section 1.03 of Article One of the Nineteenth
Supplemental Indenture is hereby further amended so as to read as
follows:
O. The "Certifiable Net Earnings" of the Company for
any particular period shall be computed and ascertained by
deducting from the total of the Gross Operating Revenues of the
Company for such period the following:
All operating expenses and other proper charges
(other than those charged to capital accounts or surplus)
including (a) all Federal, state and local taxes (other than
taxes in respect of income or profits and other taxes imposed on
or measured by income or profits); and (b) rentals, insurance,
current repairs and maintenance; but excluding (i) provisions for
reserves for renewals, replacements, depreciation, depletion or
retirement of property (or any expenditures therefor), or
provisions for amortization of property, (ii) expenses or
provisions for interest on any indebtedness of the Company, for
the amortization of debt discount, premium, expense or loss on
reacquired debt, for any maintenance and replacement, improvement
or sinking fund or other device for the retirement of any
indebtedness, or for other amortization, (iii) expenses or
provisions for any nonrecurring charge to income or to retained
earnings of whatever kind or nature (including without limitation
the recognition of expense or impairment due to the
nonrecoverability of assets or expense), whether or not recorded
as a nonrecurring charge in the Company's books of account, and
(iv) provisions for any refund of revenues previously collected
or accrued by the Company subject to possible refund.
The Gross Operating Revenues of the Company shall
consist of Gross Utility Operating Revenues of the Company, plus
the Net Non-Operating Income of the Company. The term "Gross
Utility Operating Revenues" of the Company shall mean the
aggregate gross operating revenues derived from the operation of
the utility properties owned or leased by the Company. The term
"Net Non-Operating Income" of the Company shall mean net income
derived from but not necessarily limited to the following: (a)
merchandising, jobbing and contract work; (b) rental of
non-utility properties; (c) interest and dividend income
including dividends from Subsidiaries; (d) allowance for funds
used during construction; and (e) other miscellaneous
non-operating income; provided, however, that profits or losses
resulting from the sale, abandonment or other disposition of
capital assets or securities of the Company and the Company's
equity in the undistributed earnings of Subsidiaries, shall not
be taken into account in the calculation of Net Non-Operating
Income.
Subject to the foregoing provisions of this Section,
all determinations of earnings pursuant to this Indenture shall
be made, and all balance sheets and other financial statements to
be delivered hereunder shall be prepared, in accordance with the
practice prescribed by any regulatory authority having
jurisdiction over the Company or other lawfully prescribed
practice or, in the absence of any practice prescribed by law, in
accordance with sound accounting practice and, where consistent
with such practice and with the foregoing provisions of this
Section, on the same basis as that used in preparing the
financial statements included in the annual report of the Company
for the preceding fiscal year.
1.08. Property Additions Certificate--Amendment to
Conform to Other Provisions. Clauses (10) and (12) of Paragraph
B of Section 4.02 of Article Four of the Indenture is hereby
amended so as to read as follows:
(10) That no part of the Property Additions described
in said Certificate is property the construction or acquisition
of which under the provisions of Section 4.01 is not permitted to
be made the basis of the authentication and delivery of Bonds
under this Article.
(12) Whether there is any unused Additions Credit which
the Company desires to use, in whole or in part, as a basis for
the authentication and delivery of the Bonds then applied for,
and if so, a statement of the entire amount which the Company so
desires to use, of each such unused Additions Credit.
1.09. Earnings-to-Interest Coverage Requirements.
Paragraph F of Section 4.02 of Article Four of the Indenture as
previously amended by Section 1.04 of the Nineteenth Supplemental
Indenture is hereby amended so as to read as follows:
F. A Net Earnings Certificate of the Company,
complying with the provisions of Section 1.02, dated not more
than 45 days prior to the application for the authentication and
delivery of such Bonds, certified by an Accountant, and setting
forth:
(1) The amount of the Certifiable Net Earnings of
the Company, for a period of 12 consecutive calendar months
within the 18 calendar months immediately preceding the date on
which the application for the authentication and delivery of the
Bonds is made, and stating separately the Gross Utility Operating
Revenues and the Net Non-Operating Income and the operating
expenses of the Company and other deductions from such Gross
Utility Operating Revenues and Net Non-Operating Income pursuant
to Paragraph O of Section 4.01, with the principal subdivisions
thereof.
(2) The aggregate amount of the annual "Interest
Charges on Bonds and Prior Lien Debt" of the Company, which term
shall mean the annual interest charges on
(a) all Bonds outstanding hereunder at the
date of said Certificate, provided, however, that in the case of
any Bonds which shall at such time be pledged as security for any
indebtedness of the Company, the amount of the annual interest
charges on such pledged Bonds shall be deemed to be either the
amount of the annual interest charges on such indebtedness or the
amount of the annual interest charges on such pledged Bonds,
whichever shall be greater; and
(b) all Bonds the authentication and
delivery of which is applied for in such application and in any
other pending application; and
(c) all indebtedness secured by a lien upon
the Trust Estate, or any part thereof, prior to the lien of this
Indenture, other than a Prepaid Lien;
provided, however, that there shall be excluded from
such computation the annual interest charges on any Bonds or
indebtedness which is to be paid, redeemed or otherwise retired,
or provision for the retirement of which is to be made, so that
the same will cease to be outstanding prior to or concurrently
with the authentication and delivery of the Bonds then applied
for.
(3) That the amount of the Certifiable Net
Earnings of the Company set forth as provided by Clause (1) of
this Paragraph have been at least equal to two (2) times the
aggregate amount of the annual Interest Charges on Bonds and
Prior Lien Debt of the Company as provided by Clause (2) of this
Paragraph.
(4) That such Certifiable Net Earnings have been
computed and ascertained as provided in Paragraph O of Section
4.01.
If the annual Interest Charges on Bonds and Prior Lien
Debt shall be increased after the date of the Earnings
Certificate hereinabove in this Paragraph described, and before
the authentication and delivery of the Bonds then applied for,
the Company will file with the Trustee a new Earnings Certificate
showing the amount of said annual Interest Charges on Bonds and
Prior Liens as so increased--it being the intention hereof that
no Bonds shall be authenticated and delivered under the
provisions of this Article, unless the ratio provided for by
Clause (3) of this Paragraph shall have been established with
respect to the aggregate amount of the annual Interest Charges on
Bonds and Prior Liens of the Company as constituted at the time
of the authentication and delivery of the Bonds then applied for;
but the Trustee shall, subject to the provisions of Section
15.02, be entitled to assume, in the absence of such new Earnings
Certificate, that the aggregate amount of the annual Interest
Charges on Bonds and Prior Lien Debt of the Company, as
constituted at the time of the authentication and delivery of the
Bonds then applied for, are as stated in the Earnings Certificate
filed with the Trustee as aforesaid.
The Earnings Certificate provided for in this Paragraph
shall be certified by an Independent Public Accountant selected
by the Company and approved by the Trustee, in the exercise of
reasonable care, if, but only if, the aggregate principal amount
of the Bonds to be authenticated and delivered on the basis
thereof and of other Bonds authenticated and delivered since the
commencement of the then current calendar year (other than those
with respect to which an Earnings Certificate is not required or
with respect to which an Earnings Certificate verified by an
Independent Public Accountant has previously been furnished) is
10% or more of the aggregate principal amount of the Bonds at the
time outstanding.
1.10. Summary Certificate. Paragraph G of Section 4.02
of Article Four of the Indenture is hereby amended so as to read
as follows:
G. A summary certificate and computation of the
Company complying with the provisions of Section 1.02,
determining the Net Bondable Additions in conformity with the
provisions of this Indenture as amended.
1.11. Amount of Property Additions Required for New
Bonds. Section 4.03 of Article Four of the Indenture is hereby
amended so as to read as follows:
SECTION 4.03. Upon compliance with the provisions of
Section 4.02, the Trustee shall authenticate and deliver Bonds in
an aggregate principal amount up to, but not exceeding seventy
percent (70%) of the amount of Net Bondable Additions shown by
the summary certificate and computation filed pursuant to
Paragraph G of Section 4.02.
1.12. Additional Authorization to Issue Bonds. The
Indenture is amended by the addition of the following Section
4.04 to Article Four of the Indenture.
SECTION 4.04. Notwithstanding anything in this
Indenture to the contrary, upon the Written Order of the Company,
the Trustee shall authenticate and deliver Bonds in an aggregate
principal amount up to, but not exceeding seventy percent (70%)
of
A. the total amount of Property Additions which
the Company certifies to the Trustee as of May 1, 1994 and as of
each May 1 thereafter to meet the requirements of Section 9.06
until such time that Section 9.06 is deleted by the execution of
the Twenty Eighth Supplemental Indenture; and
B. fourteen and two-tenths percent (14.2%) of
the total amount of all Property Additions certified to the
Trustee and used as Bondable Additions for the issuance of Bonds
during the period beginning May 1, 1994 and ending on the
execution date of the Twenty Eighth Supplemental Indenture.
The Company shall furnish the Trustee a Certificate of the
Company referencing and documenting the amount of Property
Additions previously certified and used as provided at Paragraphs
A and B of this Section, a summary certificate and computation
determining the amount of Bonds that may be issued under this
Section 4.04 and an Opinion of Counsel as required by Paragraph I
of Section 4.02; provided that subparagraph (1) thereunder shall
refer to the basis of this Section 4.04 rather than Net Bondable
Additions and subparagraphs (2), (3), (4) and (5) are not to be
included in such opinion.
1.13. Release of Property from Indenture. Section 7.02
of Article Seven of the Indenture is hereby amended so as to read
as follows:
SECTION 7.02.
A. Definition of "Fair Value." For the purposes
of this Section 7.02, "Fair Value" when applied to property is
its value as determined without deduction for any Prior Liens
upon such property and without deduction to reflect that such
property may be of value only to the Company or another operator
of the Trust Estate as a whole, which value may be determined
without physical inspection by use of accounting and engineering
records and other data maintained by, or available to, the
Company.
B. Release Based on Bond Ratio. Unless an Event
of Default shall have occurred and be continuing, upon receipt of
a Written Order of the Company requesting the release of any of
the Trust Estate pursuant to this Paragraph B, the Trustee shall
execute and deliver to the Company the documents and instruments
described in Paragraph B, releasing from the Lien of this
Indenture any of the Trust Estate if the Fair Value of all of the
Trust Estate (excluding the Trust Estate to be released but
including any Trust Estate to be acquired by the Company with the
proceeds of, or otherwise in connection with, such release)
stated on the Engineer's certificates delivered pursuant to
Clause 2 of Paragraph B and Clause (3) of Paragraph B, equals or
exceeds an amount equal to twenty-fourteenths (20/14) of the
aggregate principal amount of Bonds outstanding at the date of
such Written Order of the Company as stated on the Certificate of
the Company delivered pursuant to Clause (4) of Paragraph B, upon
receipt by the Trustee of:
(1) appropriate documents and instruments
releasing without recourse the interest of the Trustee in the
Trust Estate to be released, and describing in reasonable detail
the Trust Estate to be released;
(2) an Engineer's certificate, dated the
date of such Written Order of the Company, stating (i) that the
signers of such Engineer's certificate have examined the
Certificate of the Company delivered pursuant to Clause (4) of
Paragraph B in connection with such release, (ii) the Fair Value,
in the opinion of the signer of such Engineer's certificate, of
(A) all of the Trust Estate, and (B) the Trust Estate to be
released, in each case as of a date not more than 90 days prior
to the date of such Written Order of the Company, and (iii) that
in the judgment of such signers, such release (A) will not
materially adversely affect the Company's Electric Business, and
(B) will not impair the security under this Indenture in
contravention of the provisions hereof;
(3) in case any Property Additions are being
acquired by the Company with the proceeds of, or otherwise in
connection with, such release, an Engineer's certificate, dated
the date of such Written Order of the Company, as to the Fair
Value, as of a date not more than 90 days prior to the date of
such Written Order of the Company, of the Property Additions
being so acquired (and if within six months prior to the date of
acquisition by the Company of the Property Additions being so
acquired, any property included within such Property Additions
had been used or operated by others than the Company in a
business similar to that in which it has been or is to be used or
operated by the Company, and the Fair Value thereof to the
Company, as set forth in such Engineer's certificate, is not less
than one percent (1%) of the aggregate principal amount of Bonds
then outstanding, such certificate shall be an Independent
Engineer's Certificate);
(4) a Certificate of the Company, dated the
date of such Written Order of the Company, stating (i) that the
aggregate principal amount of Bonds outstanding at the date of
such Written Order of the Company, and stating that the Fair
Value of all of the Trust Estate (excluding the Trust Estate to
be released but including any Property Additions to be acquired
by the Company with the proceeds of, or otherwise in connection
with, such release) stated on the Engineer's certificate filed
pursuant to Clause (2) of Paragraph B equals or exceeds an amount
equal to twenty-fourteenths (20/14) of such aggregate principal
amount, and (ii) that, to the knowledge of the signer, no Event
of Default has occurred and is continuing; and
(5) an Opinion of Counsel complying with the
provisions of Section 1.02 stating that the instruments which
have been or are delivered to the Trustee conform to the
requirements of this Indenture and constitute sufficient
authority under this Indenture for the Trustee to execute and
deliver the release requested.
C. Release up to a Limited Amount. If the
Company is unable, or elects not, to obtain, in accordance with
the preceding Paragraph B, the release from the Lien of this
Indenture of any of the Trust Estate, unless an Event of Default
shall have occurred and be continuing, upon receipt of a Written
Order of the Company requesting the release of any of the Trust
Estate pursuant to this Paragraph C, the Trustee shall execute
and deliver to the Company the documents and instruments
described in Clause (1) of Paragraph C releasing from the Lien of
this Indenture any of the Trust Estate if the Fair Value thereof,
as stated on the Engineer's certificate delivered pursuant to
Clause (2) of Paragraph C is less than one percent (1%) of the
aggregate principal amount of Bonds outstanding at the date of
such Written Order of the Company, provided that the aggregate
Fair Value of all Trust Estate released pursuant to this
Paragraph C, as stated on all Engineer's certificates filed
pursuant to this Paragraph C in any period of 12 consecutive
calendar months which includes the date of such Engineer's
certificate, shall not exceed three percent (3%) of the aggregate
principal amount of Bonds outstanding at the date of such Written
Order of the Company as stated in the Certificate of the Company
delivered pursuant to Clause (3) of Paragraph C, upon receipt by
the Trustee of:
(1) appropriate documents and instruments
releasing without recourse the interest of the Trustee in the
Trust Estate to be released, and describing in reasonable detail
the Trust Estate to be released;
(2) an Engineer's certificate, dated the
date of such Written Order of the Company, stating (i) that the
signer of such Engineer's certificate has examined the
Certificate of the Company delivered pursuant to Clause (2) of
Paragraph C in connection with such release, (ii) the Fair Value,
in the opinion of the signers of such Engineer's certificate, of
such Trust Estate to be released as of a date not more than 90
days prior to the date of such Written Order of the Company, and
(iii) that in the judgment of such signers, such release (A) will
not materially adversely affect the Company's Electric Business
and (B) will not impair the security under this Indenture in
contravention of the provisions hereof;
(3) a Certificate of the Company, dated the
date of such Written Order of the Company, stating (i) the
aggregate principal amount of Bonds outstanding at the date of
such Written Order of the Company, (ii) that one percent (1%) of
such aggregate principal amount exceeds the Fair Value of the
Trust Estate for which such release is applied for, (iii) that
three percent (3%) of such aggregate principal amount exceeds the
aggregate Fair Value of all Trust Estate released from the Lien
of this Indenture pursuant to this Paragraph C, as shown by all
Engineer's certificates filed pursuant to Clause (2) of Paragraph
C in such period of 12 consecutive calendar months, and (iv)
that, to the knowledge of the signer, no Event of Default has
occurred and is continuing; and
(4) an Opinion of Counsel complying with the
provisions of Section 1.02 stating that the instruments which
have been or are delivered to the Trustee conform to the
requirements of this Indenture and constitute sufficient
authority under this Indenture for the Trustee to execute and
deliver the release requested.
D. Release by Deposit of Cash, Purchase Money
Obligations or Property Additions. If the Company is unable, or
elects not, to obtain, in accordance with Paragraphs B or C, the
release from the Lien of this Indenture of any of the Trust
Estate, unless an Event of Default shall have occurred and be
continuing, upon receipt and deposit of a Written Order of the
Company requesting the release of any of the Trust Estate
pursuant to this Paragraph D and those items at Clause (2) in
this Paragraph D, the Trustee shall execute and deliver to the
Company the documents and instruments described in Clause (1) of
Paragraph D releasing from the Lien of this Indenture the Trust
Estate described in the Written Order of the Company.
(1) appropriate documents and instruments
releasing without recourse the interests of the Trustee in the
Trust Estate to be released, and describing in reasonable detail
the Trust Estate to be released;
(2) Cash in an amount equal to the greater
of the following items (i) and (ii):
(i) the Fair Value of the property to
be released, or
(ii) the consideration received or to
be received by the Company therefor (valuing purchase money
obligations at their principal amount and property received in
exchange at its Fair Value as stated in said certificate),
provided, however, that in lieu of all or any part of
such cash, the Company shall have the right to deposit with or
deliver to the Trustee any of the following:
(a) Purchase Money Obligations secured by a
mortgage on the property to be released, or a portion thereof,
not exceeding in principal amount seventy percent (70%) of the
Fair Value (as certified as above set forth) of the property
covered by such purchase money mortgage, which purchase money
obligations and the mortgages securing the same, shall be duly
assigned to the Trustee and shall be received by the Trustee at
the principal amount thereof in lieu of cash; provided, however,
that the Trustee shall not accept any such purchase money
obligations in lieu of cash as provided in this Clause if thereby
the aggregate principal amount of all purchase money obligations
received by the Trustee pursuant to this Clause and at the time
held by the Trustee would equal or exceed 10 percent of the
principal amount of all Bonds then outstanding hereunder.
(b) A Certificate of the trustee or other
holder of a Prior Lien on all or any part of the property to be
released, stating that a specific amount of cash and/or a
specified principal amount of purchase money obligations of the
character described in subparagraph (a) of this Clause and
representing proceeds of the sale of such property, have been
deposited with such trustee or other holder pursuant to the
requirements of such Prior Lien, provided, however, that the
aggregate of the cash and principal amount of purchase money
obligations so certified at any one time shall in no event exceed
the principal amount of the Prior Lien Obligations outstanding
thereunder, less any amounts then held by the trustee or other
holder of such Prior Lien other than for the payment or
redemption of Prior Lien Obligations not deemed outstanding under
the provisions of Section 4.01; and such certificate shall be
received by the Trustee in lieu of cash equal to the cash and the
principal amount of the purchase money obligations so certified
to have been deposited with such trustee or other holder of such
Prior Lien.
(c) The Certificates, Opinions and Other
Instruments which the Company would be required to furnish to the
Trustee, upon an application for the authentication and delivery
of Bonds on the basis of Property Additions under Article Four,
but with the following variations and omissions of the
instruments specified in Section 4:02:
(i) There shall be an additional
statement in Clause (2) of the Property Additions Certificate, to
the effect that no part of the Property Additions therein
described has in any other previous or then pending application
been made the basis for the release of any Unbonded Property from
the lien of this Indenture or for the withdrawal of any Unbonded
Cash from the Trustee or from the trustee or other holder of a
Prior Lien, or to repair, replace, or restore insured Unbonded
Property which shall have been damaged or destroyed but the
proceeds of the insurance on which shall not have been required
to be paid to the Trustee pursuant to the provisions of Section
9.10;
(ii) It shall not be necessary for the
Company to deliver to the Trustee the Resolution required by
Paragraph A, the Retirements Certificate required by Paragraph E,
the Net Earnings Certificate required by Paragraph F, or any of
the certificates or parts of the Opinion of Counsel referred to
in Clauses (6) and (7) of Paragraph I of Section 4.02;
(iii) The Summary Certificate required
by Paragraph G of Section 4.02 shall show only Gross Bondable
Additions and may include any Additions Credit; and
(iv) If no part of the property to be
released is Bonded Property and such property or any part thereof
is subject to a Prior Lien, the Property Additions then so
certified may be subject to the same Prior Lien, and the Property
Additions Certificate required by Paragraph B of Section 4.02 and
the Opinion of Counsel required by Paragraph I of Section 4.02
may be modified accordingly.
Such Certificates, Opinions and Other
Instruments shall be received by the Trustee in lieu of cash up
to the amount of the Gross Bondable Additions so certified to the
Trustee.
(3) An Opinion or Opinions of Counsel,
complying with the provisions of Section 1.02,
(a) stating that the instruments
which have been or are therewith delivered to the Trustee conform
to the requirements of this Indenture and constitute sufficient
authority under this Indenture for the Trustee to execute and
deliver the release requested, and that, upon the basis of the
cash, purchase money obligations, certificates, opinions and
other instruments delivered to the Trustee pursuant to Paragraph
D of this Section, the property so sold or disposed of or
contracted to be sold or disposed of may lawfully be released
from the lien of this Indenture pursuant to the provisions of
this Section;
(b) stating that the purchase money
obligations, if any, delivered to the Trustee or to the trustee
or other holder of a Prior Lien pursuant to subparagraph (a) of
Clause (2) of Paragraph D of this Section are valid obligations
and are duly secured by a valid purchase money mortgage
constituting a direct lien upon all the property to be released,
or upon the portion thereof described, free and clear of all
prior liens, charges or encumbrances, except any Prior Liens or
other charges or encumbrances prior to the lien of this Indenture
which may have existed on the property to be released immediately
prior to such release and that the assignment of any mortgage
securing such purchase money obligations is valid and in
recordable form; and
(c) in case, pursuant to subparagraph
(a) of Clause (2) of Paragraph D of this Section, any cash or
purchase money obligations shall be certified to have been
deposited with the trustee or other holder of a Prior Lien,
stating that the property to be released, or a specified portion
thereof, is or immediately before such sale or disposition was
subject to such Prior Lien and that such deposit is required by
such Prior Lien.
E. References to Other Sections of Article
Seven. In Section 7.04 of the Indenture, the reference to
Paragraph B of Section 7.02 and Clause (8) is deleted. In
Section 7.05 of the Indenture, the reference to the Resolution of
the Board required by Section 7.02 shall mean Written Order of
the Company.
1.14. Deletion of Release up to $5,000. Section 7.08 of
Article Seven of the Indenture is hereby deleted from the
Indenture. All references to Section 7.08 in Article Seven of
the Indenture are deleted from the Indenture.
1.15. Amendment of Redemption of Bonds Because of
Eminent Domain. Section 8.08(b) of Article Eight of the
Indenture is amended so as to read as follows:
(b) In case of the sale and release of, or the taking
by eminent domain or of the purchase by a public authority
(pursuant to any right which it may then have to make such
purchase) of the entire Trust Estate, then all Trust Moneys
representing the proceeds thereof received by the Trustee shall
be applied by the Trustee in accordance with the provisions of
Section 8.05 to the redemption of Bonds outstanding hereunder
(prorated between or among the several series, according to the
principal amount of Bonds outstanding of each series, if Bonds of
more than one series be outstanding) at such then applicable
redemption prices, in such manner and upon such notice (which
shall be given by the Trustee for and on behalf of the Company,
and in the name of the Company) as may be specified in respect of
said Bonds of each series in this Indenture or in any applicable
indenture supplemental hereto.
1.16. Deletion of 15% Maintenance Requirement. Section
9.06 of Article Nine of the Indenture is hereby deleted from the
Indenture.
1.17. Increasing Insured Loss Retention. The third
sentence of Section 9.10 of Article Nine of the Indenture as
previously amended by Section 1.04 of the Fifteenth Supplemental
Indenture is further amended so as to read as follows:
All policies or other contracts for insurance upon the
Trust Estate shall provide that any loss in excess of Five
Million Dollars shall be payable to the Trustee as its interest
may appear, or to the trustee or other holder of any Prior Lien
if required by the terms thereof; and, if so requested in writing
by the Trustee, the Company will, subject to the provisions of
any Prior Lien, cause policies for such insurance to be delivered
to the Trustee.
The last paragraph of Section 9.10 of Article Nine of the
Indenture as previously amended by Section 1.05 of the Fifteenth
Supplemental Indenture is further amended by substituting the
number $5,000,000 for the number $1,000,000 therein.
1.18. Deletion of Limitations on Prior Liens. Section
9.15 of Article Nine of the Indenture is hereby deleted from the
Indenture.
1.19. Restrictions on Dividends. Section 9.16 of
Article Nine of the Indenture as amended by Section 3.06 of the
Third Supplemental Indenture, Section 1.06 of the Fifteenth
Supplemental Indenture and Section 1.02 of the Twenty Second
Supplemental Indenture is further amended so as to read as
follows:
Other than dividends payable solely in shares of its
common stock, the Company may declare and pay dividends in cash
or property on any shares of its common stock only out of the
unreserved and unrestricted retained earnings of the Company and
shall not make any such declaration or payment when the Company
is insolvent, or when the payment thereof would render the
Company insolvent.
1.20. Deletion of Restrictions on Investments in
Affiliates and Prohibiting Subsidiaries from Engaging in Electric
Business. Section 9.20 of Article Nine of the Indenture is
hereby deleted from the Indenture.
1.21. Deletion of Restrictions on Investments in
Subsidiaries. Section 9.21 of Article Nine of the Indenture as
amended by Section 1.07 of the Fifteenth Supplemental Indenture,
Section 1.06 of the Eighteenth Supplemental Indenture, Section
1.03 of the Twenty Second Supplemental Indenture and Section 1.02
of the Twenty Fourth Supplemental Indenture is hereby deleted
from the Indenture.
1.22. Annual Compliance Certificate to Conform to the
Amendments. Section 9.22 of Article Nine of the Indenture is
amended so as to read as follows:
SECTION 9.22. On or before May 1 in each calendar
year, or on or before such other date in each calendar year as
the Company and the Trustee may agree upon, the Company will
deliver to the Trustee a Certificate of the Company, complying
with the provisions of Section 1.02, with respect to the
compliance by the Company with the covenants contained in
Sections 9.04, 9.05, 9.07, 9.08, 9.11, 9.12, and 9.13, and the
Company covenants and agrees to notify the Trustee immediately
upon the occurrence of any event which constitutes an Event of
Default (as defined in Section 12.01 hereof) or which may
constitute an Event of Default as the result of the giving of a
notice and/or expiration of a period of grace.
1.23. Noncertificated System for Registration and
Restatement of the Indenture. Section 17.01 of the Indenture is
amended so as to add thereto the following additional Paragraphs
J and K:
J. To provide for the procedures required to
permit the Company to utilize, at its option, a noncertificated
system of registration for all, or any series of the Bonds.
K. To enter into a restatement of the Indenture
without material modifications and including all amendments
contained in supplements that remain in effect, with authority to
reorganize material, renumber and letter, include reference
headings and remove language no longer applicable and clarify any
ambiguities in the Indenture as amended.
ARTICLE TWO
Miscellaneous Provisions
2.01. Headings at the beginning of each Section are
included for convenience of reference, and such headings are not
intended to be used to interpret this Supplemental Indenture.
2.02. The Company, by the execution hereof, acknowledges
that a true copy of this Supplemental Indenture has been
delivered to and received by it.
2.03. Except as heretofore amended and as amended by
this Supplemental Indenture, all the provisions, terms and
conditions of the Original Indenture shall continue in full force
and effect.
2.04. The recitals contained in this Supplemental
Indenture shall be taken as the statements of the Company, and
the Trustee assumes no responsibility for their correctness.
2.05. This Supplemental Indenture may be executed in
several counterparts, all or any of which may be treated for all
purposes as one original and shall constitute and be one and the
same instrument.
IN WITNESS WHEREOF, BLACK HILLS CORPORATION, party hereto of
the first part, has caused this Supplemental Indenture to be
executed on its behalf by its President or one of its Vice
Presidents and its corporate seal to be hereto affixed and to be
attested by its Secretary or an Assistant Secretary, and CHEMICAL
BANK, party hereto of the second part, in evidence of its
acceptance of the trust hereby created, has caused this
Supplemental Indenture to be executed on its behalf by one of its
Vice Presidents or Assistant Vice Presidents and its corporate
seal to be hereto affixed and to be attested by its Secretary or
an Assistant Secretary or a Trust Officer duly authorized, all as
of the day and year first above written.
BLACK HILLS CORPORATION
(CORPORATE SEAL)
By____________________________
Its_________________________
ATTEST:
_____________________________
Signed, sealed and delivered by
BLACK HILLS CORPORATION
in the presence of
_____________________________
_____________________________
CHEMICAL BANK
By___________________________
Its________________________
ATTEST:
_____________________________
Its__________________________
Signed, sealed and delivered by
CHEMICAL BANK
in the presence of:
_____________________________
STATE OF SOUTH DAKOTA
COUNTY OF PENNINGTON
On the _____ day of ___________, 1994, before me,
________________________, the undersigned officer, personally
appeared ______________________, to me personally known, who
acknowledged h__self to be, and being by me duly sworn, did say
that _he is _____________________ of BLACK HILLS CORPORATION, a
corporation, and that the seal affixed to the foregoing
instrument is the corporate seal of said corporation and that
said instrument was executed by, and signed in the name of, the
corporation, by h__, as such __________________________ and
sealed in behalf of the corporation by authority of its Board of
Directors for the purposes therein contained, and the said
________________________ acknowledged the same as the free act
and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official
seal.
_____________________________
NOTARY PUBLIC
(SEAL)
STATE OF NEW YORK
COUNTY OF NEW YORK
On this _______ day of ________________, 1994, before me,
____________________, the undersigned officer, personally
appeared ____________________, to me personally known, who
acknowledged himself to be, and being by me duly sworn, did say
that he is ______________________________ of CHEMICAL BANK, a
corporation, and that the seal affixed to the foregoing
instrument is the corporate seal of said corporation and that
said instrument was executed by, and signed in the name of, the
corporation, by him, as such _____________________________ and
sealed in behalf of the corporation by authority of its Board of
Directors for the purposes therein contained, and the said
______________________ acknowledged the same as the free act and
deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official
seal.
_____________________________
NOTARY PUBLIC
(SEAL)
EXHIBIT 12.01
RATIO OF EARNINGS TO FIXED CHARGES
(amounts in thousands)
Year Ended December 31
1990 1991 1992 1993 1994
Pre-Tax Income from
Continuing Operations $31,675 $31,230 $32,144 $31,911 $34,200
Fixed Charges:
Interest Expense 4,951 7,922 8,860 8,699 10,207
Amortization of
Debt Expense 69 79 105 118 132
Imputed Interest from
Capitalized Lease 2,851 761 - - -
7,871 8,762 8,965 8,817 10,339
Total Earnings
Plus Fixed Charges $39,546 $39,992 $41,109 $40,728 $44,539
Total Fixed Charges $ 7,871 $ 8,762 $ 8,965 $ 8,817 $10,339
Ratio of Earnings To
Fixed Charges 5.0 4.6 4.6 4.6 4.3
