Exhibit 4(b)1
Executed in 6 Counterparts
of which this is
Counterpart No. 2
SUPERIOR WATER, LIGHT AND POWER COMPANY
TO
CHEMICAL BANK
and
XXXXX XXXXX
As Trustees Under Superior Water, Light
and Power Company's Mortgage and Deed of Trust,
Dated as of March 1, 1943
----------------------------
SIXTH SUPPLEMENTAL INDENTURE
----------------------------
Dated as of March 24, 1994
SIXTH SUPPLEMENTAL INDENTURE
INDENTURE, dated as of the 24th day of March, 1994, made and entered
into by and between SUPERIOR WATER, LIGHT AND POWER COMPANY, a corporation of
the State of Wisconsin, whose post office address is 0000 Xxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxx 00000 (hereinafter sometimes called the Company), party of
the first part, and CHEMICAL BANK (successor to Chemical Bank & Trust Company),
a corporation of the State of New York, whose principal corporate trust office
at the date hereof is 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(hereinafter called the Corporate Trustee) , and XXXXX XXXXX (successor to
Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxx, and
X. X. Xxxxxxx), whose post office address is 00-00 000xx Xxxxxx, Xxxxxxxx Xxxx,
Xxx Xxxx 00000 (hereinafter sometimes called the Co-Trustee), parties of the
second part (the Corporate Trustee and the Co-Trustee being hereinafter together
sometimes called the Trustees), as Trustees under the Mortgage and Deed of Trust
dated as of March 1, 1943 (hereinafter called the Mortgage), which Mortgage was
executed and delivered by Superior Water, Light and Power Company to secure the
payment of bonds issued or to be issued under and in accordance with the
provisions of the Mortgage, reference to which Mortgage is hereby made, this
Indenture (hereinafter sometimes called the Sixth Supplemental Indenture) being
supplemental thereto;
WHEREAS, said Mortgage was recorded in the office of the Register of
Deeds in and for Xxxxxxx County, Wisconsin, on May 3, 1943, in Volume 191 of
Mortgages at page 1, Document No. 362844; and
WHEREAS, an instrument dated as of September 15, 1949, was executed by
the Company appointing Xxxxxxx X. Xxxxxxx as Co-Trustee in succession to said
Xxxxxx X. Xxxxx, resigned, under said Mortgage and by Xxxxxxx X. Xxxxxxx
accepting the appointment as Co-Trustee under said Mortgage in succession to the
said Xxxxxx X. Xxxxx, which instrument was recorded in the office of the
Register of Deeds in and for Xxxxxxx County, Wisconsin, on October 8, 1949, in
Volume 196 of Mortgages at page 510, Document No. 398649; and
WHEREAS, by the Mortgage, the Company covenanted that it would execute
and deliver such supplemental indenture or indentures and such further
instruments and do such further acts as might be necessary or proper to carry
out more effectively the purposes of the Mortgage and to make subject to the
lien of the Mortgage any property acquired after the date of the execution of
the Mortgage and intended to be subject to the lien thereof; and
WHEREAS, the Company executed and delivered to the Trustees its First
Supplemental Indenture, dated as of March 1, 1951 (hereinafter called its First
Supplemental Indenture), which was recorded in the office of the Register of
Deeds in and for Xxxxxxx County, Wisconsin, on March 30, 1951, in Volume 205 of
Mortgages at page 73, Document No. 405297; and
WHEREAS, an instrument dated as of May 16, 1961, was executed by the
Company appointing Xxxxxxx X. Xxxxxxx as Co-Trustee in succession to said
Xxxxxxx X. Xxxxxxx, resigned, under said Mortgage and by Xxxxxxx X. Xxxxxxx
accepting the appointment as Co-Trustee under said Mortgage in succession to
said Xxxxxxx X. Xxxxxxx, which instrument was recorded in the office of the
Register of Deeds in and for Xxxxxxx County, Wisconsin, on May 31, 1961, in
Volume 256 of Mortgages at page 423, Document No. 453857; and
WHEREAS , the Company executed and delivered to the Trustees its Second
Supplemental Indenture, dated as of March 1, 1962 (hereinafter called its Second
Supplemental Indenture), which was recorded in the office of the Register of
Deeds in and for Xxxxxxx County, Wisconsin, on March 26, 1962, in Volume 261 of
Mortgages at page 81, Document No. 457662; and
WHEREAS, an instrument dated as of June 23, 1976, was executed by the
Company appointing Xxxxxx X. Xxxxxx as Co-Trustee in succession to said Xxxxxxx
X. Xxxxxxx, resigned, under said Mortgage and by Xxxxxx X. Xxxxxx accepting the
appointment as Co-Trustee under said Mortgage in succession to said Xxxxxxx X.
Xxxxxxx, which instrument was recorded in the office of the Register of Deeds in
and for Xxxxxxx County, Wisconsin, on July 16, 1976, in Volume 353 of Records at
page 274, Document No. 532495; and
WHEREAS , the Company executed and delivered to the Trustees its Third
Supplemental Indenture, dated as of July 1, 1976 (hereinafter called its Third
Supplemental Indenture), which was recorded in the office of the Register of
Deeds in and for Xxxxxxx County, Wisconsin, on October 1, 1976, in Volume 355 of
Records at page 683, Document No. 534332; and
WHEREAS, an instrument dated as of December 30, 1977, was executed by
the Company appointing X. X. Xxxxxxx as Co-Trustee in succession to said Xxxxxx
X. Xxxxxx, resigned, under said Mortgage and by X. X. Xxxxxxx accepting the
appointment as Co-Trustee under said Mortgage in succession to said Xxxxxx X.
Xxxxxx, which instrument was recorded in the office of the Register of Deeds in
and for Xxxxxxx County, Wisconsin, on February 13, 1985, in Volume 436 of
Records at page 264, Document No. 589308; and
WHEREAS, the Company executed and delivered to the Trustees its Fourth
Supplemental Indenture, dated as of March 1, 1985 (hereinafter called its Fourth
Supplemental Indenture), which was recorded in the office of the Register of
Deeds in and for Xxxxxxx County, Wisconsin, on March 19, 1985, in Volume 436 of
Records at page 910, Document No. 589776; and
WHEREAS, an instrument dated as of October 26, 1992, was executed by
the Company appointing Xxxxx Xxxxx as Co-Trustee in
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succession to said X. X. Xxxxxxx, resigned, under said Mortgage and by Xxxxx
Xxxxx accepting the appointment as Co-Trustee under said Mortgage in succession
to said X. X. Xxxxxxx, which instrument was recorded in the office of the
Register of Deeds in and for Xxxxxxx County, Wisconsin, on November 13, 1992, in
Volume 539 of Records at page 9, Document No. 649056; and
WHEREAS, the Company executed and delivered to the Trustees its Fifth
Supplemental Indenture, dated as of December 1, 1992 (hereinafter called its
Fifth Supplemental Indenture), which was recorded in the office of the Register
of Deeds in and for Xxxxxxx County, Wisconsin, on December 28, 1992, in Volume
541 of Records at page 229, Document No. 650104; and
WHEREAS, in addition to the property described in the Mortgage, as
heretofore supplemented, the Company has acquired certain other property, rights
and interests in property; and
WHEREAS, the Company has heretofore issued, in accordance with the
provisions of the Mortgage, bonds of a series entitled and designated First
Mortgage Bonds, 3 3/8% Series due 1973 (hereinafter called the bonds of the
First Series), in the aggregate principal amount of Two Million Five Hundred
Thousand Dollars ($2,500,000), none of which bonds of the First Series are now
Outstanding; bonds of a series entitled and designated First Mortgage Bonds, 3
1/10% Series due 1981 (hereinafter called the bonds of the Second Series), in
the aggregate principal amount of Five Million Dollars ($5,000,000), none of
which bonds of the Second Series are now Outstanding; bonds of a series entitled
and designated First Mortgage Bonds, 5% Series due 1992 (hereinafter called the
bonds of the Third Series), in the aggregate principal amount of Two Million
Seven Hundred Thousand Dollars ($2,700,000), none of which bonds of the Third
Series are now Outstanding; bonds of a series entitled and designated First
Mortgage Bonds, 9 5/8% Series due 2001 (hereinafter called the bonds of the
Fourth Series), in the aggregate principal amount of Three Million Dollars
($3,000,000), of which One Million Two Hundred Thousand Dollars ($1,200,000)
aggregate principal amount is now Outstanding; bonds of a series entitled and
designated First Mortgage Bonds, 12 1/2% Series due 1992 (hereinafter called the
bonds of the Fifth Series), in the aggregate principal amount of Three Million
Five Hundred Thousand Dollars ($3,500,000), none of which bonds of the Fifth
Series are now Outstanding; and bonds of a series entitled and designated First
Mortgage Bonds, 7.91% Series due 2013 (hereinafter called the bonds of the Sixth
Series), in the aggregate principal amount of Five Million Dollars ($5,000,000),
of which Four Million Seven Hundred Fifty Thousand Dollars ($4,750,000)
aggregate principal amount is now Outstanding; and
WHEREAS, Section 120 of the Mortgage provides, among other things, that
the Company may enter into any further covenants, limitations or restrictions
for the benefit of any one or more
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series of bonds issued thereunder by an instrument in writing executed and
acknowledged by the Company in such manner as would be necessary to entitle a
conveyance of real estate to be of record in all of the states in which any
property at the time subject to the lien of the Mortgage shall be situated; and
WHEREAS, the Company now desires to modify the Third Supplemental
Indenture and the terms of the bonds of the Fourth Series, issued under the
Third Supplemental Indenture, and to add to the covenants, limitations or
restrictions contained in the Mortgage certain other covenants, limitations or
restrictions to be observed by it and to amend the Mortgage; and
WHEREAS, the execution and delivery by the Company of this Sixth
Supplemental Indenture, and the modifications of the Third Supplemental
Indenture and the terms of the bonds of the Fourth Series hereinafter referred
to, have been duly authorized by the Board of Directors of the Company by
appropriate resolutions of said Board of Directors;
WHEREAS, the amendments to the Third Supplemental Indenture and the
terms of the bonds of the Fourth Series contained in this Sixth Supplemental
Indenture have been duly approved by the holders of one hundred per centum
(100%) in principal amount of the bonds outstanding and entitled to vote
thereon.
NOW, THEREFORE, THIS INDENTURE WITNESSETH: That Superior Water, Light
and Power Company, in consideration of the premises and of One Dollar ($1) to it
duly paid by the Trustees at or before the ensealing and delivery of these
presents, the receipt whereof is hereby acknowledged, and in further evidence of
assurance of the estate, title and rights of the Trustees and in order further
to secure the payment both of the principal of and interest and premium, if any,
on the bonds from time to time issued under the Mortgage, according to their
tenor and effect, and the performance of all the provisions of the Mortgage
(including any instruments supplemental thereto and any modification made as in
the Mortgage provided) and of said bonds, hereby grants, bargains, sells,
releases, conveys, assigns, transfers, mortgages, pledges, sets over and
confirms (subject, however, to Excepted Encumbrances as defined in Section 6 of
the Mortgage) unto Xxxxx Xxxxx and (to the extent of its legal capacity to hold
the same for the purposes hereof) to Chemical Bank, as Trustees under the
Mortgage, and to their successor or successors in said trust, and to said
Trustees and their successors and assigns forever, all and singular the permits,
franchises, rights, privileges, grants and property, real, personal and mixed,
now owned or which may be hereafter acquired by the Company (except any of the
character herein or in the Mortgage expressly excepted), including (but not
limited to) its electric light and power works, gas works, water works,
buildings, structures, machinery, equipment, mains, pipes, lines, poles, wires,
easements, rights of way, permits, franchises, rights,
4
privileges, grants and all property of every kind and description, situated in
the City of Superior, Xxxxxxx County, Wisconsin, or elsewhere in Xxxxxxx County,
Wisconsin, in Xxxxxxxx County, Wisconsin, or in any other place or places, now
owned by the Company, or that may be hereafter acquired by it, including, but
not limited to, the following described properties of the Company--that is to
say:
All Lands and Rights and Interests in Lands of the Company
(except any such property as may have been released from the
lien of the Mortgage), including, but not limited to, all
such property acquired by the Company under the following
deed, which is referred to for more particular descriptions
thereof, to wit:
Deed from Burlington Northern Railroad to the
Company, dated December 17, 1993 and recorded
in the office of the Register of Deeds of Xxxxxxx
County, Wisconsin, on January 25, 1994, in Volume
565 of Records at p. 510.
All other property, real, personal and mixed, acquired by the Company
after the date of the execution and delivery of the Mortgage (except any herein
or in the Mortgage, as heretofore supplemented, expressly excepted), now owned
or hereafter acquired by the Company and wheresoever situated, including
(without in any way limiting or impairing by the enumeration of the same the
scope and intent of the foregoing or of any general description contained in
this Sixth Supplemental Indenture) all lands, power sites, flowage rights, water
rights, water franchises, water locations, water appropriations, ditches,
flumes, reservoirs, reservoir sites, canals, raceways, dams, dam sites,
aqueducts, and all other rights or means for appropriating, conveying, storing
and supplying water; all rights of way and roads; all plants, works, reservoirs
and tanks for the pumping and purification of water; all water works; all plants
for the generation of electricity by water, steam and/or other power; all power
houses, gas plants, street lighting systems, standards and other equipment
incidental thereto, telephone, radio and television systems, air-conditioning
systems and equipment incidental thereto, water systems, steam heat and hot
water plants, substations, lines, service and supply systems, bridges, culverts,
tracks, street and interurban railway systems, offices, buildings and other
structures and the equipment thereof; all machinery, engines, boilers, dynamos,
water, electric, gas and other machines, regulators, meters, transformers,
generators, motors, water, electrical, gas and mechanical appliances, conduits,
cables, water, steam, heat, gas or other mains and pipes, service pipes,
fittings, valves and connections, pole and transmission lines, wires, cables,
tools, implements, apparatus, furniture, chattels and choses in action; all
municipal and other franchises, consents or permits; all lines for the
transmission and distribution of water, electric current, gas, steam heat or hot
water for any purpose, including
5
towers, poles, wires, cables, pipes, conduits, ducts and all apparatus for use
in connection therewith; all real estate, lands, easements, servitudes,
licenses, permits, franchises, privileges, rights of way and other rights in or
relating to real estate or the occupancy of the same and (except as herein or in
the Mortgage, as heretofore supplemented, expressly excepted) all the right,
title and interest of the Company in and to all other property of any kind or
nature appertaining to and/or used and/or occupied and/or enjoyed in connection
with any property herein before or in the Mortgage, as heretofore supplemented,
described.
Together with all and singular the tenements, hereditaments and
appurtenances belonging or in any way appertaining to the aforesaid property or
any part thereof, with the reversion and reversions, remainder and remainders
and (subject to the provisions of Section 57 of the Mortgage) the tolls, rents,
revenues, issues, earnings, income, product 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 the
aforesaid property and franchises and every part and parcel thereof.
It is hereby agreed by the Company that all the property, rights and
franchises acquired by the Company after the date hereof (except any herein or
in the Mortgage, as heretofore supplemented, expressly excepted) shall be and
are as fully granted and conveyed hereby and as fully embraced within the lien
of the Mortgage as if such property, rights and franchises were now owned by the
Company and were specifically described herein and conveyed hereby.
Provided that the following are not and are not intended to be now or
hereafter granted, bargained, sold, released, conveyed, assigned, transferred,
mortgaged, pledged, set over or confirmed hereunder and are hereby expressly
excepted from the lien and operation of the Mortgage, via: (1) cash, shares of
stock, bonds, notes and other obligations and other securities not hereafter
specifically pledged, paid, deposited, delivered or held under the Mortgage or
covenanted so to be; (2) merchandise, equipment, materials or supplies held for
the purpose of sale in the usual course of business and fuel, oil and similar
materials and supplies consumable in the operation of any properties of the
Company; rolling stock, buses, motor coaches, automobiles and other vehicles;
(3) bills, notes and accounts receivable, and all contracts, leases and
operating agreements not specifically pledged under the Mortgage or covenanted
so to be; the last day of the term of any lease or leasehold which may
heretofore have or hereafter may become subject to the lien of the Mortgage; (4)
water, electric energy, gas, ice and other materials or products pumped, stored,
generated, manufactured, produced or purchased by the Company for sale,
distribution or use in the ordinary course of its business; (5) the Company's
franchise to be a corporation; and (6) all permits, franchises, rights,
privileges, grants and property in the
6
state of Minnesota now owned or hereafter acquired unless such permits,
franchises, rights, privileges, grants and property in the state of Minnesota
shall have been subjected to the lien of the Mortgage by an indenture or
indentures supplemental to the Mortgage, pursuant to authorization of the Board
of Directors of the Company, whereupon all the permits, franchises, rights,
privileges, grants and property then owned or thereafter acquired by the Company
in the state of Minnesota (except property of the character expressly excepted
from the lien of the Mortgage in clauses (1) to (5) above, inclusive), shall
become and be subject to the lien of the Mortgage as part of the Mortgaged and
Pledged Property and may be released, funded and otherwise dealt with on the
same terms and subject to the same conditions and restrictions as though not
theretofore excepted from the lien of the Mortgage; provided, however, that the
property and rights expressly excepted from the lien and operation of the
Mortgage in the above subdivisions (2) and (3) shall (to the extent permitted by
law) cease to be so excepted in the event and as of the date that either or both
of the Trustees or a receiver or trustee shall enter upon and take possession of
the Mortgaged and Pledged Property in the manner provided in Article XIII of the
Mortgage by reason of the occurrence of a Default as defined in Section 65 of
the Mortgage.
To have and to hold all such properties, real, personal and mixed,
granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged,
pledged, set over or confirmed by the Company as aforesaid, or intended so to
be, unto Xxxxx Xxxxx and (to the extent of its legal capacity to hold the same
for the purposes hereof) to Chemical Bank, as Trustees, and their successors and
assigns forever.
In trust nevertheless, for the same purposes and upon the same terms,
trusts and conditions and subject to and with the same provisos and covenants as
are set forth in the Mortgage, as heretofore supplemented, this Sixth
Supplemental Indenture being supplemental thereto.
And it is hereby covenanted by the Company that all the terms,
conditions, provisos, covenants and provisions contained in the Mortgage, as
heretofore supplemented, shall affect and apply to the property herein before
described and conveyed and to the estate, rights, obligations and duties of the
Company and the Trustees and the beneficiaries of the trust with respect to said
property, and to the Trustees and their successors as Trustees of said property,
in the same manner and with the same effect as if said property had been owned
by the Company at the time of the execution of the Mortgage, and had been
specifically and at length described in and conveyed to the Trustees by the
Mortgage as part of the property therein stated to be conveyed.
7
The Company further covenants and agrees to and with the Trustees and
their successors in said trust under the Mortgage as follows:
ARTICLE I.
Amendment to the Third Supplemental Indenture and
Terms of the Fourth Series of Bonds.
SECTION 1. Effective upon the date of this Sixth Supplemental
Indenture, the Third Supplemental Indenture and the terms of the Bonds of the
Fourth Series shall be amended as follows:
(a) The Bonds of the Fourth Series shall bear interest (computed on the
basis of a 360 day year--30-day month) at the rate of (a) six and ten hundredths
per centum (6.10%) per annum at any time other than during the continuance of a
Payment Default and (b) eight and ten hundredths per centum (8.10%) per annum
during the continuance of any Payment Default, payable semi-annually on January
1 and July 1 of each year, commencing July 1, 1994, except that any overdue
payment (including any overdue prepayment) of principal, any overdue payment of
any premium and to the extent that payment of such interest is enforceable under
applicable law, any overdue installment of interest shall bear interest
(computed on the basis of a 360-day year--30-day month), payable semiannually as
aforesaid (or, at the option of the holder of the Bonds, on demand), at a rate
per annum from time to time equal to the greater of (i) eight and ten hundredths
per centum (8.10%) or (ii) the rate of interest publicly announced by Xxxxxx
Xxxxxxxx Trust Company of New York from time to time in New York City as its
prime rate. The rate of interest to be borne by the Bonds of the Fourth Series
prior to the date of this Sixth Supplemental Indenture shall be the rate
provided by Section 1 of Article I of the Third Supplemental Indenture prior to
the amendments thereto made by this Sixth Supplemental Indenture. The principal
of, and the premium, if any, and the interest on, the Bonds of the Fourth Series
shall be payable in such coin or currency of the United States of America as at
the time of payment shall be legal tender for public and private debts, at the
office or agency of the Company in the Borough of Manhattan, City of New York,
or the office of the Company in Superior, Wisconsin.
(b) The Bonds of the Fourth Series may be redeemed prior to maturity,
in whole at any time or in part (in multiples of $500,000) from time to time, at
the option of the Company, or by the application (either at the option of the
Company or pursuant to the requirements of the Mortgage) of cash delivered to or
deposited with the Corporate Trustee pursuant to the provisions of Section 39,
Section 61, Section 64 or Section 118 of the Mortgage or with the Proceeds of
Released Property, in any such case at 100% of the principal amount of the bonds
being redeemed plus interest accrued
8
thereon to the date of redemption, together with a premium equal to the Yield
Maintenance Amount, if any, with respect to the bonds being redeemed. Any Bond
of the Fourth Series redeemed pursuant to this paragraph may not be delivered to
the Corporate Trustee in full or partial satisfaction of the sinking fund
requirement contained in Section 2 of the Third Supplemental Indenture and shall
not reduce the amount of the Bonds of the Fourth Series to be redeemed pursuant
to such Section 2.
Notice of any redemption of the Bonds of the Fourth Series shall be
given by mail, postage prepaid, at least 30 days prior to the date of
redemption, to the registered owners of all Bonds to be so redeemed at their
respective addresses appearing on the books maintained by the Company pursuant
to Section 13 of the Mortgage. Any notice which is mailed as herein provided
shall be conclusively presumed to have been properly and sufficiently given on
the date of such mailing, whether or not the registered owner receives the
notice. In any case, failure to give notice by mail, or any defect in such
notice, to the registered owner of any Bond of the Fourth Series designated for
redemption in whole or in part shall not affect the validity of the proceedings
for the redemption of any other Bond of the Fourth Series.
The provisions of this clause (b) shall apply in lieu of the provisions
of subdivision (I) of Section 1 of Article I of the Third Supplemental
Indenture, which subdivision (I) is hereby deleted in its entirety, and in lieu
of the provisions of subdivision (II) of Section 1 of Article I of the Third
Supplemental Indenture insofar as such provisions of such subdivision (II)
relate to any redemption of the Bonds of the Fourth Series by application of
cash delivered to or deposited with the Corporate Trustee pursuant to the
provisions of Section 39 or Section 64 of the Mortgage, which provisions of such
subdivision (II) are hereby deleted in their entirety.
(c) Subdivision (II) of Section 1 of Article I of the Third
Supplemental Indenture is hereby further amended by amending the first proviso
thereof, in lines nine through sixteen thereof, in its entirety to read as
follows:
"provided, however, that in the case of application of cash
delivered to the Corporate Trustee pursuant to the provisions
of Section 2 hereof, If the date fixed for such redemption
shall be prior to January 1 of the calendar year in which
such delivery of cash shall become due under the provisions
of Section 2 hereof, they shall be redeemed in accordance
with the provisions of clause (b) of the Sixth Supplemental
Indenture at a price equal to 100% of the principal amount of
the bonds being redeemed plus interest accrued thereon to the
date of redemption together with a premium equal to the
Yield-
9
Maintenance Amount, if any, with respect to the bonds being
redeemed."
(d) All partial redemptions of Bonds of the Fourth Series shall be made
ratably among all registered owners thereof in the proportions which the
principal amount of the Bonds held by each registered owner bears to the
aggregate principal amount of all Bonds of the Fourth Series then outstanding,
computed to the nearest $1,000 principal amount of the Bonds.
(e) In the event that the principal amount of the Bonds of the Fourth
Series is declared due and payable upon the occurrence of a Default or becomes
due and payable pursuant to Section 73 of the Mortgage, there shall then become
due and payable, together with the principal amount of the Bonds of the Fourth
Series and interest accrued thereon, a premium equal to the amount of the Yield
Maintenance Amount which would have been payable with respect to such Bonds of
the Fourth Series, if they had been redeemed at the option of the Company
pursuant to Section 1 in this Sixth Supplemental Indenture on the date on which
the Bonds of the Fourth Series became due and payable; provided that such
premium, if any, with respect to the Bonds of the Fourth Series shall become due
and payable only if such Default is, or such sale is made following a Default,
other than one specified in any of clauses (ix), (x) and (xi) of the definition
of the term "Event of Default" contained in this Sixth Supplemental Indenture or
subsections (e) or (f) of Section 65 of the Mortgage.
SECTION 2. Except to the extent expressly set forth in this Sixth
Supplemental Indenture, the Third Supplemental Indenture and the terms of the
Bonds, as provided in the Third Supplementa1 Indenture, remain unchanged.
ARTICLE II.
Covenants and Restrictions.
The following covenants and restrictions are added to the Third
Supplemental Indenture effective upon the date of this Sixth Supplemental
Indenture:
SECTION 3. The Company covenants that, so long as any Bonds of the
Fourth Series are outstanding, it will not merge or consolidate with any other
Person or sell, lease or transfer or otherwise dispose of all or a Substantial
Part of its assets, or assets which shall have contributed a Substantial Part of
net income of the Company for any of the three fiscal years then most recently
ended, to any Person; provided, however, that the Company may merge or
consolidate with, or sell or transfer all or substantially all of its assets to,
Minnesota Power, but only if (a) in the event that Minnesota Power is the
continuing or surviving corporation or the acquiring corporation, Minnesota
Power shall be a solvent
10
corporation and shall expressly assume in writing all of the obligations of the
Company under the Mortgage, the Third Supplementa1 Indenture, as amended by this
Sixth Supplemental Indenture, the Bonds of the Fourth Series and the Bond
Purchase Agreement, including all covenants therein and herein contained, and
Minnesota Power shall succeed to and be substituted for the Company with the
same effect as if it had been named herein as a party hereto, and (b) the
Company as the continuing or surviving corporation or Minnesota Power as the
continuing or surviving corporation or acquiring corporation, as the case may
be, shall not, immediately after such merger or consolidation, or such sale or
other disposition, be in default under any of such obligations.
SECTION 4. The Company covenants that, so long as any Bonds of the
Fourth Series shall remain outstanding, the Company will not issue, sell or
otherwise dispose of any of its shares of capital stock to any Person other than
Minnesota Power.
SECTION 5. The Company covenants that, so long as any of the Bonds of
the Fourth Series are outstanding, the Company shall not have any Subsidiaries.
SECTION 6. A default by the Company in the observance of any covenant
or agreement contained in Sections 3 through 5, inclusive, of this Sixth
Supplemental Indenture or the occurrence of an Event of Default (as defined
herein) shall be deemed to constitute an additional and independent Default
under, and defined in, Section 65 of the Mortgage; provided that the Trustees
shall not be charged with knowledge of any such default or Event of Default
unless a Responsible Officer assigned to its Corporate Trustee Administration
Department shall have actual knowledge thereof or shall have received written
notice thereof from a registered owner of any Bond of the Fourth Series or from
the Company. None of the additional Defaults provided for pursuant to this
Section 6 are intended or shall be deemed to limit any of the Defaults currently
expressed in the Mortgage and none of the Defaults currently expressed in the
Mortgage are intended or shall be deemed to limit any of the additional Defaults
provided for pursuant to this Section 6.
ARTICLE III.
Miscellaneous Provisions.
SECTION 7. For purposes of the Third Supplemental Indenture and this
Sixth Supplemental Indenture, the following terms shall have the meanings
indicated below:
"Bond Purchase Agreement" shall mean the Bond Purchase Agreement dated
as of September 22, 1976, between the Company, Bankers Life Company and Lutheran
Mutual Life Insurance Company, as amended by the Amendment to Purchase
Agreement, dated the date of
11
this Sixth Supplemental Indenture, between the Company and the Purchaser.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
day on which commercial banks in New York City are required or authorized to be
closed.
"Called Principal" shall mean, with respect to any Bond, the principal
of such Bond that is to be redeemed.
"Capitalized Lease Obligation" shall mean with respect to any Person
any rental obligation which, under generally accepted accounting principles,
would be required to be capitalized on the books of such Person, taken at the
amount thereof accounted for as indebtedness (net of interest expense in
accordance with such principles).
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Discounted Value" shall mean, with respect to the Called Principal of
any Bond, the amount obtained by discounting all Remaining Scheduled Payments
with respect to such Called Principal from their respective scheduled due dates
to the Settlement Date with respect to such Called Principal, in accordance with
accepted financial practice and at a discount factor (applied on the same
periodic basis as that on which interest on the Bonds is payable) equal to the
Reinvestment Yield with respect to such Called Principal.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"ERISA Affiliate" shall mean any corporation which is a member of the
same controlled group of corporations as the Company within the meaning of
section 414(b) of the Code, or any trade or business which is under common
control with the Company within the meaning of section 414(c) of the Code.
"Event of Default" shall mean any of the following events which shall
occur and be continuing for any reason whatsoever (and whether such occurrence
shall be voluntary or involuntary or come about or be effected by operation of
law or otherwise):
(i) the Company defaults in the payment of any
principal of or premium, if any, or sinking fund payment
payable with respect to any Bond of the Fourth Series when
the same shall become due, either by the terms thereof or
otherwise as provided in the Mortgage, the Third Supplemental
Indenture, as amended by this Sixth Supplemental Indenture,
or the Bond Purchase Agreement; or
12
(ii) the Company defaults in the payment of any
interest on any Bond of the Fourth Series for more than 5
days after the due date; or
(iii) the Company, Minnesota Power or any
Significant Subsidiary defaults (whether as primary obligor
or as guarantor or other surety) in any payment of principal
of or interest on any other obligation for money borrowed (or
any Capitalized Lease Obligation, any obligation under a
conditional sale or other title retention agreement, any
obligation issued or assumed as full or partial payment for
property whether or not secured by a purchase money mortgage
or any obligation under notes payable or drafts accepted
representing extensions of credit) beyond any period of grace
provided with respect thereto, or the Company, Minnesota
Power or any Significant Subsidiary fails to perform or
observe any other agreement, term or condition contained in
any agreement under which any such obligation is created (or
if any other event thereunder or under any such agreement
shall occur and be continuing) and the effect of such failure
or other event is to cause, or to permit the holder or
holders of such obligation (or a trustee on behalf of such
holder or holders) to cause, such obligation to become due
(or to be repurchased by the Company, Minnesota Power or any
Significant Subsidiary) prior to any stated maturity; or
(iv) any representation or warranty made by the
Company in the Third Supplemental Indenture, this Sixth
Supplemental Indenture or the Bond Purchase Agreement or by
the Company or any of its officers in any writing furnished
in connection with or pursuant to this Sixth Supplemental
Indenture or the Bond Purchase Agreement shall be false in
any material respect on the date as of which made; or
(v) any representation or warranty made by Minnesota
Power in the Guaranty or by Minnesota Power or any of its
officers in any writing furnished in connection with or
pursuant to the Guaranty shall be false in any material
respect on the date as of which made; or
(vi) the Company fails to perform or observe any
agreement, term or condition contained in the Mortgage, the
Third Supplemental Indenture, as amended by the Sixth
Supplemental Indenture, or the Bond Purchase Agreement; or
(vii) Minnesota Power fails to perform or observe
any agreement, term or condition contained in the Guaranty or
the Guaranty shall cease to be in full force
13
and effect or otherwise shall not be enforceable in
accordance with its terms or a proceeding shall be commenced
by any governmental agency or authority having jurisdiction
over Minnesota Power seeking to establish the invalidity or
unenforceability of the Guaranty or Minnesota Power shall
deny that it has any other liability or obligation under the
Guaranty; or
(viii) the Company, Minnesota Power or any
Significant Subsidiary makes an assignment for the benefit of
creditors or is generally not paying its debts as such debts
become due; or
(ix) any decree or order for relief in respect of
the Company, Minnesota Power or any Significant Subsidiary is
entered under any bankruptcy, reorganization, compromise,
arrangement, insolvency, readjustment of debt, dissolution or
liquidation or similar law, whether now or hereafter in
effect (herein called the Bankruptcy Law), of any
jurisdiction; or
(x) the Company, Minnesota Power or any Significant
Subsidiary petitions or applies to any tribunal for, or
consents to, the appointment of, or taking possession by, a
trustee, receiver, custodian, liquidator or similar official
of the Company, Minnesota Power or any Significant
Subsidiary, or of any Substantial Part of the assets of the
Company, Minnesota Power or any Significant Subsidiary, or
commences a voluntary case under the Bankruptcy Law of the
United States or any proceedings (other than proceedings for
the voluntary liquidation and dissolution of a Significant
Subsidiary) relating to the Company, Minnesota Power or any
Significant Subsidiary under the Bankruptcy Law of any other
jurisdiction; or
(xi) any such petition or application is filed, or
any such proceedings are commenced, against the Company,
Minnesota Power or any Significant Subsidiary and the
Company, Minnesota Power or such Significant Subsidiary by
any act indicates its approval thereof, consent thereto or
acquiescence therein, or an order, judgment or decree is
entered appointing any such trustee, receiver, custodian,
liquidator or similar official, or approving the petition in
any such proceedings; or
(xii) any order, judgment or decree is entered in
any proceedings against the Company or Minnesota Power
decreeing the dissolution of the Company or Minnesota Power
and such order, judgment or decree remains unstayed and in
effect for more than 60 days; or
14
(xiii) any order, judgment or decree is entered in
any proceedings against the Company decreeing a split-up of
the Company which requires the divestiture of assets
representing a Substantial Part of the assets of the Company
or which requires the divestiture of assets which shall have
contributed a Substantial Part of the net income of the
Company for any of the three fiscal years then most recently
ended, and such order, judgment or decree remains unstayed
and in effect for more than 60 days; or
(xiv) any order, judgment or decree is entered in
any proceedings against Minnesota Power or any Significant
Subsidiary decreeing a split-up of Minnesota Power or such
Significant Subsidiary which requires the divestiture of
assets representing a Substantial Part, or the divestiture of
the stock of a MP-Subsidiary whose assets represent a
Substantial Part of the consolidated assets of Minnesota
Power and its MP-Subsidiaries (determined in accordance with
generally accepted accounting principles) or which requires
the divestiture of assets, or stock of a MP-Subsidiary, which
shall have contributed a Substantial Part of the consolidated
net income of Minnesota Power and its MP-Subsidiaries
(determined in accordance with generally accepted accounting
principles) for any of the three fiscal years then most
recently ended, and such order, judgment or decree remains
unstayed and in effect for more than 60 days; or
(xv) a final judgment in an amount in excess of
$100,000 is rendered against the Company or a final judgment
in an amount in excess of $5,000,000 is rendered against
Minnesota Power or any Significant Subsidiary and, within 60
days after entry thereof, such judgment is not discharged or
execution thereof stayed pending appeal, or within 60 days
after the expiration of any such stay, such judgment is not
discharged; or
(xvi) the Company or any ERISA Affiliate, in its
capacity as an employer under a Multiemployer Plan, makes a
complete or partial withdrawal from such Multiemployer Plan
resulting in the incurrence by such withdrawing employer of a
withdrawal liability in an amount exceeding $100,000;
(xvii) Minnesota Power shall cease to own of record
and beneficially 100% of the outstanding shares of capital
stock of the Company.
15
"Guaranty" shall mean that certain Guarantee Agreement dated as of
October 8, 1976, made by Minnesota Power in favor of the holders of the Bonds of
the Fourth Series.
"MP-Subsidiary" shall mean any corporation at least 51% of the total
combined voting power of all classes of Voting Stock of which shall, at the time
as of which any determination is being made, be owned by Minnesota Power either
directly or through MP-Subsidiaries.
"Minnesota Power" means Minnesota Power & Light Company, a Minnesota
corporation.
"Multiemployer Plan" shall mean any Plan which is a "multi employer
plan" (as such term is defined in section 4001(a)(3) of ERISA).
"Payment Default" shall mean any default in the payment of any
principal, interest, premium or sinking fund payment with respect to any Bond of
the Fourth Series when the same shall become due.
"Person" shall mean and include an individual, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization and a government
or any department or agency thereof.
"Plan" shall mean any "employee pension benefit plan" (as such term is
defined in section 3 of ERISA) which is or has been established or maintained,
or to which contributions are or have been made by the Company or any ERISA
Affiliate.
"Proceeds of Released Property" shall mean the aggregate of the cash
deposited with or received by the Corporate Trustee pursuant to the provisions
of Section 59, Section 60, Section 61 (except such cash as is to be paid over to
the Company under the provisions of Section 61), or Section 62 of the Mortgage.
"Purchaser" means Principal Mutual Life Insurance Company, successor to
Bankers Life Company, and Century Life of America by Century Investment
Management Company, successor to Lutheran Mutual Life Insurance Company.
"Reinvestment Yield" shall mean, with respect to the Called Principal
of any Bond, the yield to maturity implied by (i) the yields reported, as of
10:00 a.m. (New York City time) on the Business Day next preceding the
Settlement Date with respect to such Called Principal, on the display designated
as "Page 678" on the Telerate Service (or such other display as may replace Page
678 on the Telerate Service) for actively traded U.S. Treasury securities having
a maturity equal to the Remaining Average Life of such Called Principal as of
such Settlement Date, or if such yields shall not be reported as of such time or
the yields reported as of such time shall not be ascertainable, (ii) the
Treasury Constant
16
Maturity Series yields reported, for the latest day for which such yields shall
have been so reported as of the Business Day next preceding the Settlement Date
with respect to such Called Principal, in Federal Reserve Statistical Release H.
15 (519) (or any comparable successor publication) for actively traded U.S.
Treasury securities having a constant maturity equal to the Remaining Average
Life of such Called Principal as of such Settlement Date. Such implied yield
shall be determined, if necessary, by (a) converting U.S. Treasury bill
quotations to bond equivalent yields in accordance with accepted financial
practice and (b) interpolating linearly between yields reported for various
maturities.
"Remaining Average Life" shall mean, with respect to the Called
Principal of any Bond, the number of years (calculated to the nearest
one-twelfth year) obtained by dividing (i) such Called Principal into (ii) the
sum of the products obtained by multiplying (a) each Remaining Scheduled Payment
of such Called Principal (but not of interest thereon) by (b) the number of
years (calculated to the nearest one-twelfth year) which will elapse between the
Settlement Date with respect to such Called Principal and the scheduled due date
of such Remaining Scheduled Payment.
"Remaining Scheduled Payments" shall mean, with respect to the Called
Principal of any Bond, all redemption payments of such Called Principal and
interest thereon that would be due on or after the Settlement Date from the
sinking fund established pursuant to the Third Supplemental Indenture with
respect to such Called Principal if no such redemption payment of such Called
Principal were made prior to its scheduled due date.
"Settlement Date" shall mean, with respect to the Called Principal of
any Bond, the date on which such Called Principal is to be redeemed.
"Significant Subsidiary" shall mean any MP-Subsidiary (other than the
Company) with consolidated revenues for its most recently ended fiscal year, as
shown on its statement of income, which are greater than 15% of consolidated
revenues of Minnesota Power and its MP-Subsidiaries for such fiscal year.
"Subsidiary" shall mean any corporation at least 51% of the total
combined voting power of all classes of Voting Stock of which shall, at the time
as of which any determination is being made, be owned by the Company either
directly or through Subsidiaries.
"Substantial Part" shall mean when used with respect to assets or net
income 10% or more of such assets or net income, respectively.
"Voting Stock" shall mean, with respect to any corporation, any shares
of stock of such corporation whose holders are entitled
17
under ordinary circumstances to vote for the election of directors of such
corporation (irrespective of whether at the time stock of any other class or
classes shall have or might have voting power by reason of the happening of any
contingency).
"Yield Maintenance Amount" shall mean, in connection with any of the
Bonds of the Fourth Series, an amount equal to the excess, if any, of the
Discounted Value of the Called Principal of such Bond over the sum of (i) such
Called Principal plus (ii) interest accrued thereon as of (including interest
due on) the Settlement Date with respect to such Called Principal. The Yield
Maintenance Amount shall in no event be less than zero.
SECTION 8. Unless otherwise defined herein, the terms defined in the
Mortgage, as heretofore supplemented, shall for all purposes of this Sixth
Supplemental Indenture have the meanings specified in the Mortgage, as
heretofore supplemented.
SECTION 9. The Trustees hereby accept the trust herein declared,
provided and created and agree to perform the same upon the terms and conditions
herein and in the Mortgage, as heretofore supplemented, set forth and upon the
following terms and conditions.
The Trustees shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this Sixth Supplemental Indenture
or for or in respect of the recitals contained herein, all of which recitals are
made by the Company solely. In general, each and every term and condition
contained in Article XVII of the Mortgage shall apply to and form part of this
Sixth Supplemental Indenture with the same force and effect as if the same were
herein set forth in full, with such omissions, variations and insertions, if
any, as may be appropriate to make the same conform to the provisions of this
Sixth Supplemental Indenture.
SECTION 10. Subject to the provisions of Article XVI and Article XVII
of the Mortgage and Section 3 of this Sixth Supplemental Indenture, whenever in
this Sixth Supplemental Indenture any of the parties hereto is named or referred
to, this shall be deemed to include the successors or assigns of such party, and
all the covenants and agreements in this Sixth Supplemental Indenture contained
by or on behalf of the Company or by or on behalf of the Trustees shall bind and
inure to the benefit of the respective successors and assigns of such parties
whether so expressed or not.
SECTION 11. Nothing in this Sixth Supplemental Indenture, express or
implied, is intended, or shall be construed, to confer upon, or to give to, any
person, firm or corporation, other than the parties hereto and the holders of
the bonds Outstanding under the Mortgage, any right, remedy or claim under or by
reason of this
18
Sixth Supplemental Indenture or any covenant, condition, stipulation, promise or
agreement hereof, and all the covenants, conditions, stipulations, promises and
agreements of this Sixth Supplemental Indenture contained by or on behalf of the
Company shall be for the sole and exclusive benefit of the parties hereto, and
of the holders of the bonds and of the coupons Outstanding under the Mortgage.
SECTION 12. This Sixth Supplemental Indenture may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, Superior Water, Light and Power Company, party
hereto of the first part, has caused its corporate name to be hereunto affixed,
and this instrument to be signed and sealed by its President or one of its Vice
Presidents, and its corporate seal to be attested by its Secretary or one of its
Assistant Secretaries for and on its behalf, and Chemical Bank, one of the
parties hereto of the second part, has caused its corporate name to be hereunto
affixed, and this instrument to be signed and sealed by one of its Vice
Presidents and its corporate seal to be attested by one of its Trust Officers,
and Xxxxx Xxxxx, one of the parties hereto of the second part, has hereunto set
his hand and affixed his seal, all as of the day and year first written above.
SUPERIOR WATER, LIGHT AND POWER COMPANY
By: E.G. McGillis
------------------------------------
E.G. XxXxxxxx, President
Attest:
G.A. Xxxxxxx
--------------------------
Xxxx X. Xxxxxxx, Secretary
[SEAL]
Executed, sealed and delivered by
Superior Water, Light, and Power
Company in the presence of:
Xxxxx X. Xxxxx
--------------------------
--------------------------
19
Chemical Bank, as Trustee
By: X.X. Xxxxxxxx
-------------------------------
X.X. XXXXXXXX, Vice President
[SEAL]
Attest:
M. B. Xxxxxxxx
------------------------------
M. B. Xxxxxxxx, Trust Officer
Executed, sealed and delivered by
Chemical Bank in the presence of:
Xxxxxxx X. Xxxx
------------------------------
------------------------------
Xxxxx Xxxxx
-------------------------------
Xxxxx Xxxxx, as Trustee
Executed, sealed and delivered by
Xxxxx Xxxxx in the presence of:
Xxxxxxx X. Xxxx
------------------------------
------------------------------
20
STATE OF WISCONSIN )
) SS.
COUNTY OF XXXXXXX )
Personally came before me this 21st day of Mar, 1994, E. G. XxXXXXXX,
to me known to me the President, and XXXX X. XXXXXXX, to me known to be the
Secretary of the above-named SUPERIOR WATER, LIGHT AND POWER COMPANY, the
corporation described in and which executed the foregoing instrument, and to me
personally known to be the persons who as such officers executed the foregoing
instrument in the name and behalf of said corporation, who, being by me duly
sworn, did depose and say and acknowledge that they are respectively the
President and Secretary of said corporation, that the seal affixed to said
instrument is the corporate seal of said corporation, and that they signed,
sealed and delivered said instrument in the name and on behalf of said
corporation by authority of its Board of Directors, and said E. G. XxXXXXXX and
XXXX X. XXXXXXX, then and there acknowledged said instrument to be the free act
and deed of said corporation and that such corporation executed the same.
Given under my hand and notarial seal this 21st day of Mar, 1994.
Xxxxx X. Xxxxx
---------------------------------
Notary Public, State of Wisconsin
My Commission: 2/16/97
[SEAL]
21
STATE OF NEW YORK )
) SS.
COUNTY OF NEW YORK )
Personally came before me this 23 day of March 1994, X. X. XXXXXXXX, to
me known to be a Vice President, and M. B. Xxxxxxxx, to me known to be a Trust
Officer, of the above-named Chemical Bank, the corporation described in and
which executed the foregoing instrument, and to me personally known to be the
persons who as such officers executed the foregoing instrument in the name
and behalf of said corporation, who, being by me duly sworn, did depose and
say and acknowledge that they are respectively a Vice President and a
Trust Officer of said corporation, that the seal affixed to said instrument
is the corporate seal of said corporation, and that they signed, sealed and
delivered said instrument in the name and on behalf of said corporation by
authority of its Board of Directors, and said Vice President and Trust Officer
then and there acknowledged said instrument to be the free act and deed of said
corporation and that such corporation executed the same.
Given under my hand and notarial seal this 23 day of March, 1994.
Xxxxxxxxx XxXxxx
---------------------------------
Notary Public, State of New York
My Commission:
XXXXXXXXX XxXXXX
Xxxxxx Public, State of New York
NO. 01DE5013759
Qualified in Kings County
Certificate Filed in New York County
Commission Expires July 15, 1995
[SEAL]
STATE OF NEW YORK )
) SS.
COUNTY OF NEW YORK )
Personally came before me this 23 day of March, 1994 the above-named
Xxxxx Xxxxx, to me known to be the person who executed the foregoing instrument,
and acknowledged the same.
Xxxxxxxxx XxXxxx
---------------------------------
Notary Public, State of New York
My Commission:
XXXXXXXXX XxXXXX
Xxxxxx Public, State of New York
NO. 01DE5013759
Qualified in Kings County
Certificate Filed in New York County
Commission Expires July 15, 1995
[SEAL]
THIS INSTRUMENT DRAFTED BY:
---------------------------
Attorney Xxxxxxx X. Xxxxxxxx
Xxxx, Xxxxxxx, Xxxxxxxx & Xxxxx, S. C.
00 Xxxx Xxxxxxx Xxxxxx
P. O. Box 1807
Madison, WI 53701-1807
(000) 000-0000
22
