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EXHIBIT 5
SUPPLEMENTAL AGREEMENT
REGARDING RESTRUCTURING
OF CERTAIN QUALIFYING FACILITIES
Reference is made to that certain Agreement and Plan of Merger (the
"Merger Agreement") dated as of January 1, 2000 and the Addendum to the
Agreement and Plan of Merger dated as of April 6, 2000 (the "Addendum"), both by
and among Black Hills Corporation, Black Hills Energy Capital, Inc., Indeck
Capital, Inc., Gerald R. Forsythe, Michelle R. Fawcett, Marsha Fournier, Monica
Breslow, Melissa S. Forsythe and John W. Salyer, Jr. (hereinafter, collectively
referred to as the "Parties"). All terms not defined herein shall have the
respective meaning ascribed thereto in the Merger Agreement.
Article 9 of the Merger Agreement sets forth certain indemnification
obligations of the Company and the Stockholders to indemnify the Parent, Newco
and the Surviving Corporation.
The Parties acknowledge that certain interests in the projects located
at Warrensburg, Middle Falls, Sissonville, New York State Dam, Hudson Falls,
South Glens Falls, Otter Creek, Glenns Ferry, Rupert, and Ontario have been or
will be transferred to a third party by the Company and its affiliates to ensure
that such projects continue to meet the ownership criteria for "qualifying
facilities" (the "Transferred Interest") as described in the Merger Agreement
and the Addendum. The Parties acknowledge that in consideration of each such
Transferred Interest, the Company has or will receive a Nonrecourse Demand
Promissory Note and Note Purchase Agreement (the "Promissory Notes"). The
Parties further acknowledge that it is their intention that in lieu of each
Transferred Interest, the Parent and Newco receive such Promissory Notes. The
Parties agree and acknowledge that the ability of the third party to repay such
Promissory Notes, as well as Parent and Newco's acceptance of such Promissory
Notes, is dependent upon the truthfulness and accuracy of the representations
and warranties contained in Sections 4 and 5 of the Merger Agreement. The
Parties agree that if, as a result of a breach of the representations and
warranties contained in Sections 4 and 5 of the Merger Agreement, Parent and
Newco are unable to collect all or any part of the Promissory Note(s), then the
Parent and Newco shall be entitled to indemnification from the Company and the
Stockholders in accordance with the provisions of Article 9 of the Merger
Agreement. Parent and Newco's right to indemnification under the preceding
sentence shall be limited to the extent of their inability to collect all or any
part of such Promissory Note(s) as a result of a breach of Sections 4 and 5 of
the Merger Agreement. The Parties agree that the term "Losses" as defined in
Section 9.1 of the Merger Agreement shall include Losses resulting from the
inability of Parent and/or Newco to collect all or any part of the Promissory
Note(s) as a consequence of a breach of the representations and warranties
contained in Sections 4 and 5 of the Merger Agreement.
This Agreement shall be governed by the laws of the State of Delaware.
This Agreement may be signed in two or more counterparts, each of which
when duly executed and delivered shall be deemed an original and all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of April 6, 2000.
BLACK HILLS CORPORATION
By: /s/
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Name:
Title:
BLACK HILLS ENERGY CAPITAL, INC.
By: /s/
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Name:
Title:
INDECK CAPITAL, INC.
By: /s/
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Name:
Title:
/s/
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GERALD R. FORSYTHE
/s/
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MICHELLE R. FAWCETT
/s/
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MARSHA FOURNIER
/s/
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MONICA BRESLOW
/s/
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MELISSA S. FORSYTHE
/s/
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JOHN W. SALYER, JR.
