EXHIBIT 4(C)3
--------------------------------------------------------------------------------
MINNESOTA POWER, INC.
(DOING BUSINESS AS ALLETE)
TO
THE BANK OF NEW YORK
(FORMERLY IRVING TRUST COMPANY)
AND
XXXXXXX X. XXXXXXXX
(SUCCESSOR TO XXXXXXX X. XXXX, X. X. XXXXXX,
X. X. XXXXXX, D. W. MAY, X. X. XXXXXXX AND X. X. XXXXXXXXXX)
AS TRUSTEES UNDER MINNESOTA
POWER, INC.'S MORTGAGE AND
DEED OF TRUST DATED AS OF
SEPTEMBER 1, 1945
------------------------
TWENTY-FIRST SUPPLEMENTAL INDENTURE
PROVIDING AMONG OTHER THINGS FOR
FLOATING RATE FIRST MORTGAGE BONDS DUE OCTOBER 20, 2003
(TWENTY-SEVENTH SERIES)
DATED AS OF OCTOBER 1, 2000
--------------------------------------------------------------------------------
TWENTY-FIRST SUPPLEMENTAL INDENTURE
THIS INDENTURE, dated as of October 1, 2000, by and between MINNESOTA
POWER, INC. (doing business AS ALLETE), a corporation of the State of Minnesota,
whose post office address is 00 Xxxx Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxx 00000
(hereinafter sometimes called the "Company"), and THE BANK OF NEW YORK (formerly
Irving Trust Company), a corporation of the State of New York, whose post office
address is 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter sometimes
called the "Corporate Trustee"), and XXXXXXX X. XXXXXXXX (successor to Xxxxxxx
X. Xxxx, X. X. Xxxxxx, X. X. XxXxxx, X. X. May, X. X. Xxxxxxx and X. X.
Xxxxxxxxxx), whose post office address is 0000 X. XxXxxxxxxx Xxxxxx, Xxxxxxxx,
Xxx Xxxxxx 00000 (said Xxxxxxx X. XxxXxxxx being hereinafter sometimes called
the "Co-Trustee" and 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 September 1, 1945, between the Company (formerly
Minnesota Power & Light Company) and Irving Trust Company and Xxxxxxx X. Xxxx,
as Trustees, securing bonds issued and to be issued as provided therein
(hereinafter sometimes called the "Mortgage"), reference to which mortgage is
hereby made, this indenture (hereinafter sometimes called the "Twenty-first
Supplemental Indenture") being supplemental thereto:
WHEREAS, the Mortgage was filed and recorded in various official records in
the State of Minnesota; and
WHEREAS, an instrument, dated as of October 16, 1957, was executed and
delivered under which X. X. Xxxxxx succeeded Xxxxxxx X. Xxxx as Co-Trustee under
the Mortgage, and such instrument was filed and recorded in various official
records in the State of Minnesota; and
WHEREAS, an instrument, dated as of April 4, 1967, was executed and
delivered under which X. X. XxXxxx in turn succeeded X. X. Xxxxxx as Co-Trustee
under the Mortgage, and such instrument was filed and recorded in various
official records in the State of Minnesota; and
WHEREAS, under the Sixth Supplemental Indenture, dated as of August 1,
1975, to which reference is hereinafter made, D. W. May in turn succeeded X. X.
XxXxxx as Co-Trustee under the Mortgage; and
WHEREAS, an instrument, dated as of June 25, 1984, was executed and
delivered under which X. X. Xxxxxxx in turn succeeded D. W. May as Co-Trustee
under the Mortgage, and such instrument was filed and recorded in various
official records in the State of Minnesota; and
WHEREAS, an instrument, dated as of July 27, 1988, was executed and
delivered under which X. X. Xxxxxxxxxx in turn succeeded X. X. Xxxxxxx as
Co-Trustee under the Mortgage, and such instrument was filed and recorded in
various official records in the State of Minnesota; and
WHEREAS, an instrument, dated as of April 15, 1999, was executed and
delivered under which Xxxxxxx X. XxxXxxxx in turn succeeded X. X. Xxxxxxxxxx as
Co-Trustee under the Mortgage, and such instrument was filed and recorded in
various official records in the State of Minnesota; and
WHEREAS, by the Mortgage the Company covenanted, among other things, 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 effectually the purposes of the Mortgage and to make subject to
the lien of the Mortgage any property thereafter acquired and intended to be
subject to the lien thereof; and
WHEREAS, for said purposes, among others, the Company executed and
delivered the following indentures supplemental to the Mortgage:
DESIGNATION DATED AS OF
----------- -----------
First Supplemental Indenture....................... March 1, 1949
Second Supplemental Indenture...................... July 1, 1951
Third Supplemental Indenture....................... March 1, 1957
Fourth Supplemental Indenture...................... January 1, 1968
Fifth Supplemental Indenture....................... April 1, 1971
Sixth Supplemental Indenture....................... August 1, 1975
Seventh Supplemental Indenture..................... September 1, 1976
Eighth Supplemental Indenture...................... September 1, 1977
Ninth Supplemental Indenture....................... April 1, 1978
Tenth Supplemental Indenture....................... August 1, 1978
Eleventh Supplemental Indenture.................... December 1, 1982
Twelfth Supplemental Indenture..................... April 1, 1987
Thirteenth Supplemental Indenture.................. March 1, 1992
Fourteenth Supplemental Indenture.................. June 1, 1992
Fifteenth Supplemental Indenture................... July 1, 1992
Sixteenth Supplemental Indenture................... July 1, 1992
Seventeenth Supplemental Indenture................. February 1, 1993
Eighteenth Supplemental Indenture.................. July 1, 1993
Nineteenth Supplemental Indenture.................. February 1, 1997
Twentieth Supplemental Indenture................... November 1, 1997
which supplemental indentures were filed and recorded in various official
records in the State of Minnesota; and
WHEREAS, the Company has heretofore issued, in accordance with the
provisions of the Mortgage, as heretofore supplemented, the following series of
First Mortgage Bonds:
PRINCIPAL PRINCIPAL
AMOUNT AMOUNT
SERIES ISSUED OUTSTANDING
------ ---------- -----------
3-1/8% Series due 1975...................... $26,000,000 None
3-1/8% Series due 1979...................... 4,000,000 None
3-5/8% Series due 1981...................... 10,000,000 None
4-3/4% Series due 1987...................... 12,000,000 None
6-1/2% Series due 1998...................... 18,000,000 None
2
PRINCIPAL PRINCIPAL
AMOUNT AMOUNT
SERIES ISSUED OUTSTANDING
------ ---------- -----------
8-1/8% Series due 2001...................... $23,000,000 None
10-1/2% Series due 2005..................... 35,000,000 None
8.70% Series due 2006....................... 35,000,000 None
8.35% Series due 2007....................... 50,000,000 None
9-1/4% Series due 2008...................... 50,000,000 None
Pollution Control Series A.................. 111,000,000 None
Industrial Development Series A............. 2,500,000 None
Industrial Development Series B............. 1,800,000 None
Industrial Development Series C............. 1,150,000 None
Pollution Control Series B.................. 13,500,000 None
Pollution Control Series C.................. 2,000,000 None
Pollution Control Series D.................. 3,600,000 None
7-3/4% Series due 1994...................... 55,000,000 None
7-3/8% Series due March 1, 1997............. 60,000,000 None
7-3/4% Series due June 1, 2007.............. 55,000,000 $55,000,000
7-1/2% Series due August 1, 2007............ 35,000,000 35,000,000
Pollution Control Series E.................. 111,000,000 111,000,000
7% Series due March 1, 2008................. 50,000,000 50,000,000
6-1/4% Series due July 1, 2003.............. 25,000,000 25,000,000
7% Series due February 15, 2007............. 60,000,000 60,000,000
6.68% Series due November 15, 2007.......... 20,000,000 20,000,000
which bonds are also hereinafter sometimes called bonds of the First through
Twenty-Sixth Series, respectively; and
WHEREAS, Section 8 of the Mortgage provides that the form of each series
of bonds (other than the First Series) issued thereunder and of coupons to be
attached to coupon bonds of such series shall be established by Resolution of
the Board of Directors of the Company and that the form of such series, as
established by said Board of Directors, shall specify the descriptive title of
the bonds and various other terms thereof, and may also contain such provisions
not inconsistent with the provisions of the Mortgage as the Board of Directors
may, in its discretion, cause to be inserted therein expressing or referring to
the terms and conditions upon which such bonds are to be issued and/or secured
under the Mortgage; and
WHEREAS, Section 120 of the Mortgage provides, among other things, that any
power, privilege or right expressly or impliedly reserved to or in any way
conferred upon the Company by any provision of the Mortgage, whether such power,
privilege or right is in any way restricted or is unrestricted, may (to the
extent permitted by law) be in whole or in part waived or surrendered or
subjected to any restriction if at the time unrestricted or to additional
restriction if already restricted, and the Company may enter into any further
covenants, limitations or restrictions for the benefit of any one or more series
3
of bonds issued thereunder, or the Company may cure any ambiguity contained
therein, or in any supplemental indenture, or may establish the terms and
provisions of any series of bonds (other than said First Series) 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 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 create one new series of bonds and
(pursuant to the provisions of Section 120 of the Mortgage) to add to its
covenants and agreements contained in the Mortgage, as heretofore supplemented,
certain other covenants and agreements to be observed by it and to alter and
amend in certain respects the covenants and provisions contained in the
Mortgage, as heretofore supplemented; and
WHEREAS, the execution and delivery by the Company of this Twenty-first
Supplemental Indenture, and the terms of the bonds of the Twenty-seventh Series,
hereinafter referred to, have been duly authorized by the Board of Directors of
the Company by appropriate resolutions of said Board of Directors;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That the Company, in consideration of the premises and of One Dollar 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 of both the principal of and interest and premium, if any,
on the bonds from time to time issued under the Mortgage, as heretofore
supplemented, 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)
unto THE BANK OF NEW YORK and XXXXXXX X. XXXXXXXX, 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 property, real, personal
and mixed, of the kind or nature specifically mentioned in the Mortgage, as
heretofore supplemented, or of any other kind or nature acquired by the Company
after the date of the execution and delivery of the Mortgage, as heretofore
supplemented (except any herein or in the Mortgage, as heretofore supplemented,
expressly excepted), now owned or, subject to the provisions of subsection (I)
of Section 87 of the Mortgage, hereafter acquired by the Company (by purchase,
consolidation, merger, donation, construction, erection or in any other way) and
wheresoever situated, including (without in anywise limiting or impairing by the
enumeration of the same the scope and intent of the foregoing or of any general
description contained in this Twenty-first Supplemental Indenture) all lands,
power sites, flowage rights, water rights, 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
for the generation of electricity by steam, water 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 works, water systems, steam heat
4
and hot water plants, substations, lines, service and supply systems, bridges,
culverts, tracks, ice or refrigeration plants and equipment, offices, buildings
and other structures and the equipment thereof; all machinery, engines, boilers,
dynamos, electric, gas and other machines, regulators, meters, transformers,
generators, motors, electrical, gas and mechanical appliances, conduits, cables,
water, steam heat, gas or other pipes, gas mains and pipes, service pipes,
fittings, valves and connections, pole and transmission lines, wires, cables,
tools, implements, apparatus, furniture and chattels; all municipal and other
franchises, consents or permits; all lines for the transmission and distribution
of electric current, gas, steam heat or water for any purpose including 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 hereinbefore or in the Mortgage, as heretofore supplemented,
described.
TOGETHER WITH all and singular the tenements, hereditaments, prescriptions,
servitudes and appurtenances belonging or in anywise 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, subject to the provisions of
subsection (I) of Section 87 of the Mortgage, all the property, rights, and
franchises acquired by the Company (by purchase, consolidation, merger,
donation, construction, erection or in any other way) 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 by the
Mortgage and as fully embraced within the lien hereof and the lien of the
Mortgage as if such property, rights and franchises were now owned by the
Company and were specifically described herein or in the Mortgage and conveyed
hereby or thereby.
PROVIDED that the following are not and are not intended to be now or
hereafter granted, bargained, sold, released, conveyed, assigned, transferred,
mortgaged, hypothecated, affected, pledged, set over or confirmed hereunder and
are hereby expressly excepted from the lien and operation of this Twenty-first
Supplemental Indenture and from the lien and operation of the Mortgage, namely:
(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,
apparatus, materials or supplies held for the purpose of sale or other
disposition in the usual course of business; fuel, oil and similar materials and
supplies consumable in the operation of any of the properties of the Company;
all aircraft, rolling stock, trolley coaches, buses, motor coaches, automobiles
and other vehicles and materials and supplies held for the purpose of repairing
or replacing (in whole or part) any of the same; all timber, minerals, mineral
rights and royalties; (3) bills, notes and accounts receivable, judgments,
5
demands and choses in action, and all contracts, leases and operating agreements
not specifically pledged under the Mortgage or covenanted so to be; the
Company's contractual rights or other interest in or with respect to tires not
owned by the Company; (4) the last day of the term of any lease or leasehold
which may hereafter become subject to the lien of the Mortgage; (5) electric
energy, gas, steam, ice, and other materials or products generated,
manufactured, produced or purchased by the Company for sale, distribution or use
in the ordinary course of its business; and (6) the Company's franchise to be a
corporation; provided, however, that the property and rights expressly excepted
from the lien and operation of this Twenty-First Supplemental Indenture and 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 thereof.
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
the 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 supplemented, this Twenty-first 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 hereinbefore described and
conveyed and to the estate, rights, obligations and duties of the Company and
Trustees and the beneficiaries of the trust with respect to said property, and
to the Trustees and their successors in the trust 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 said Trustees by the Mortgage as a part of the property
therein stated to be conveyed.
The Company further covenants and agrees to and with the Trustees and their
successors in said trust under the Mortgage as follows:
ARTICLE I
TWENTY-SEVENTH SERIES OF BONDS
SECTION 1. There shall be a series of bonds designated "Floating Rate First
Mortgage Bonds due October 20, 2003" (herein sometimes referred to as the
"Twenty-seventh Series"), and the form thereof, established by Resolution of the
Board of Directors of the Company, shall contain suitable provisions with
respect to the matters hereinafter in this Section specified. Bonds of the
Twenty-seventh Series shall be dated as in Section 10 of the Mortgage provided,
mature on October 20, 2003, be issued as fully registered bonds in denominations
of One Thousand Dollars and, at the option of the Company, in any multiple or
multiples of One Thousand Dollars (the exercise of such option to be evidenced
6
by the execution and delivery thereof) and bear interest on the interest payment
dates, as provided in the form of bond of the Twenty-seventh Series; the
principal of and interest on each said bond to be payable at the office or
agency of the Company in the Borough of Manhattan, The City of New York, in such
coin or currency of the United States of America as at the time of payment is
legal tender for public and private debts.
The Company shall appoint ABN AMRO Bank, N.V., Chicago Branch as the
Calculation Agent for the bonds of the Twenty-seventh Series pursuant to a
Calculation Agency Agreement between the Company and the Calculation Agent. Upon
receipt by the Company of notice of termination by the Calculation Agent or upon
the Company giving written notice of termination to the Calculation Agent, the
Company shall promptly appoint a successor Calculation Agent and enter into a
new Calculation Agency Agreement.
(I) Bonds of the Twenty-seventh Series shall be in substantially the
following form, with such insertions, omissions and variations as the officer of
the Company executing such bond may determine, such determination to be
conclusively evidenced by such officer's execution of such bond:
7
(legend at the end of this
bond for restrictions on transferability
and change of form)
[TEMPORARY] REGISTERED BOND
ALLETE (LEGALLY INCORPORATED AS
MINNESOTA POWER, INC.)
Floating Rate First Mortgage Bond,
Due October 20, 2003
No. TR - 1 CUSIP 018522 AB 8
$
ALLETE (legally incorporated as MINNESOTA POWER, INC.), a corporation
of the State of Minnesota (hereinafter called the Company), for value received,
hereby promises to pay to , or registered assigns, on October
-----------------
20, 2003, at the office or agency of the Company in the Borough of Manhattan,
The City of New York,
in such coin or currency of the United States of America as at the time of
payment is legal tender for public and private debts, and to pay to the
registered owner hereof interest thereon from October 20, 2000, if the date of
this bond is prior to January 20, 2001, or if the date of this bond is on or
after January 20, 2001, from the April 20, July 20, October 20 or January 20
immediately preceding the date of this bond to which interest has been paid
(unless the date hereof is an interest payment date to which interest has been
paid, in which case from the date hereof) in like coin or currency at such
office or agency on January 20, April, 20, July 20 and October 20 in each year,
until the Company's obligation with respect to the payment of such principal
shall have been discharged.
This bond is [a temporary bond and] one of an issue of bonds of the
Company issuable in series and is one of a series known as its Floating Rate
First Mortgage Bonds due October 20, 2003, all bonds of all series issued and to
be issued under and equally secured (except in so far as any sinking or other
fund, established in accordance with the provisions of the Mortgage hereinafter
mentioned, may afford additional security for the bonds of any particular
series) by a Mortgage and Deed of Trust (herein, together with any indenture
supplemental thereto, including the Twenty-first Supplemental Indenture dated as
of October 1, 2000, called the Mortgage), dated as of September 1, 1945,
executed by the Company to Irving Trust Company (now The Bank of New York) and
Xxxxxxx X. Xxxx (Xxxxxxx X. XxxXxxxx successor), as Trustees.
The bonds of this series will bear interest for each Interest Period
(defined below) at a per annum interest rate determined by ABN AMRO Bank, N.V.,
8
Chicago Branch, or its successor appointed by the Company as permitted by the
Mortgage, acting as Calculation Agent. The interest rate for each Interest
Period will be equal to LIBOR on the Interest Determination Date for that
Interest Period plus .85%; provided, however, that in certain circumstances
described below, the interest rate will be determined in an alternative manner
without reference to LIBOR. Promptly upon determination, the Calculation Agent
will notify the Corporate Trustee of the interest rate for the new Interest
Period. The interest rate determined by the Calculation Agent, absent willful
default, bad faith or manifest error, will be binding and conclusive upon the
beneficial owners and holders of the bonds of this series, the Company and the
Corporate Trustee.
"Interest Period" means the period commencing on an interest payment date
and ending on the day preceding the next succeeding interest payment date
provided that the initial Interest Period will commence on the date of initial
issuance. The "Interest Determination Date" for an Interest Period is the second
London Business Day immediately preceding the first day of that Interest Period.
For purposes of this calculation, "London Business Day" means a day on
which dealings in deposits in U.S. dollars are transacted, or with respect to
any future date, are expected to be transacted, in the London interbank market.
"LIBOR" for any Interest Determination Date will be the offered rate for
deposits in U.S. dollars having an index maturity of three months for a period
commencing on the second London Business Day immediately following the Interest
Determination Date (the "Three Month Deposits") in amounts of not less than
$1,000,000, as that rate appears on Telerate Page 3750, or a successor reporter
of such rates selected by the Calculation Agent and acceptable to the Company,
at approximately 11:00 a.m., London time, on the Interest Determination Date
(the "Reported Rate").
"Telerate Page 3750" means the display designated on page "3750" on Dow
Xxxxx Markets Limited (or such other page as may replace the 3750 page on that
service or such other service or services as may be nominated by the British
Bankers' Association for the purpose of displaying London interbank offered
rates for U.S. dollar deposits).
If the following circumstances exist on any Interest Determination Date,
the Calculation Agent will determine the interest rate for the bonds of this
series as follows:
(1) In the event no Reported Rate appears on Telerate Page 3750 as of
approximately 11:00 a.m., London time, on an Interest Determination Date, the
Calculation Agent will request the principal London offices of each of four
major banks in the London interbank market selected by the Calculation Agent
(after consultation with the Company) to provide a quotation of the rate at
which Three Month Deposits in amounts of not less than $1,000,000 are offered by
it to prime banks in the London interbank market, as of approximately 11:00
a.m., London time, on that Interest Determination Date, that is representative
of single transactions at that time (the "Representative Amounts"). If at least
two rate quotations are provided, the interest rate will be the arithmetic mean
of the rate quotations obtained by the Calculation Agent, plus .85%.
In the event no Reported Rate appears on Telerate Page 3750 and the
Calculation Agent obtains fewer than two rate quotations, the interest rate will
be the arithmetic mean of the rates quoted at approximately 11:00 a.m., New York
City time, on that Interest Determination Date, by three major banks in New York
9
City, selected by the Calculation Agent (after consultation with the Company),
for loans in Representative Amounts in U.S. dollars to leading European banks,
having an index maturity of three months for a period commencing on the second
London Business Day immediately following that Interest Determination Date, plus
.85%; provided, however, that if fewer than three banks selected by the
Calculation Agent are quoting those rates, the interest rate for the applicable
Interest Period will be the same as the interest rate in effect for the
immediately preceding interest period.
Upon the request of the holder of any of the bonds, the Calculation Agent
will provide to that holder the interest rate in effect on the date of the
request and, if determined, the interest rate for the next Interest Period.
The interest will be paid to the persons in whose names the bonds of this
series are registered at the close of business (1) on the business day prior to
each interest payment date if the bonds of this series remain in book-entry only
form or (2) on the 15th calendar day before each interest payment date if the
bonds of this series do not remain in book-entry only form.
The bonds of this series shall not be redeemable prior to October 20, 2001.
On or after October 20, 2001, the Company may redeem the bonds of this series,
at its option, in whole or in part from time to time, on any interest payment
date prior to their maturity (each a "Redemption Date"). The Company will give
notice of its intent to redeem any of the bonds of this series 30 days prior to
a Redemption Date. If the Company redeems all or any part of the bonds of this
series, it will pay a redemption price equal to 100% of the principal amount of
the bonds of this series being redeemed plus accrued and unpaid interest
thereon, if any, to the Redemption Date.
Reference is made to the Mortgage for a description of the property
mortgaged and pledged, the nature and extent of the security, the rights of the
holders of the bonds and of the Trustees in respect thereof, the duties and
immunities of the Trustees and the terms and conditions upon which the bonds are
and are to be secured and the circumstances under which additional bonds may be
issued. With the consent of the Company and to the extent permitted by and as
provided in the Mortgage, the rights and obligations of the Company and/or the
rights of the holders of the bonds and/or coupons and/or the terms and
provisions of the Mortgage may be modified or altered by affirmative vote of the
holders of at least 66 2/3% principal amount of the bonds then outstanding under
the Mortgage and, if the rights of the holders of one or more, but less than
all, series of bonds then outstanding are to be affected, then also by
affirmative vote of the holders of at least 66 2/3% in principal amount of the
bonds then outstanding of each series of bonds so to be affected (excluding in
any case bonds disqualified from voting by reason of the Company's interest
therein as provided in the Mortgage); provided that, without the consent of the
holder hereof, no such modification or alteration shall, among other things,
impair or affect the right of the holder to receive payment of the principal of
(and premium, if any) and interest on this bond, on or after the respective due
dates expressed herein, or permit the creation of any lien equal or prior to the
lien of the Mortgage or deprive the holder of the benefit of a lien on the
mortgaged and pledged property.
10
The principal hereof may be declared or may become due prior to the
maturity date hereinbefore named on the conditions, in the manner and at the
time set forth in the Mortgage, upon the occurrence of a default as in the
Mortgage provided.
This bond is transferable as prescribed in the Mortgage by the
registered owner hereof in person, or by his duly authorized attorney, at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, upon surrender and cancellation of this bond, and thereupon, a new fully
registered bond of the same series for a like principal amount will be issued to
the transferee in exchange herefor as provided in the Mortgage. The Company and
the Trustees may deem and treat the person in whose name this bond is registered
as the absolute owner hereof for the purpose of receiving payment and for all
other purposes and neither the Company nor the Trustees shall be affected by any
notice to the contrary.
In the manner prescribed in the Mortgage, bonds of this series, upon
surrender thereof for cancellation at the office or agency of the Company in the
Borough of Manhattan, The City of New York, are exchangeable for a like
aggregate principal amount of bonds of the same series of other authorized
denominations.
As provided in the Mortgage, the Company shall not be required to make
transfers or exchanges of bonds of any series for a period of ten (10) days next
preceding any interest payment date for bonds of said series.
No recourse shall be had for the payment of the principal of or
interest on this bond against any incorporator or any past, present or future
subscriber to the capital stock, stockholder, officer, or director of the
Company or of any predecessor or successor corporation, as such, either directly
or through the Company or any predecessor of successor corporation, under any
rule of law, statute or constitution or by the enforcement of any assessment or
otherwise, all such liability of incorporators, subscribers, stockholders,
officers, and directors being released by the holder or owner hereof by the
acceptance of this bond and being likewise waived and released by the terms of
the Mortgage.
This bond shall not become obligatory until The Bank of New York, the
Corporate Trustee under the Mortgage, or its successor thereunder, shall have
signed the form of authentication certificate endorsed hereon.
11
IN WITNESS WHEREOF, ALLETE (legally incorporated as Minnesota Power,
Inc.) has caused this bond to be signed in its corporate name by its President
or one of its Vice Presidents by his signature or a facsimile thereof, and its
corporate seal to be impressed or imprinted hereon and attested by its Secretary
or one of its Assistant Secretaries by his signature or a facsimile thereof.
Dated: October , 2000
ALLETE (legally incorporated as
Minnesota Power, Inc.)
By
--------------------------------------
Senior Vice President - Finance
ATTEST:
--------------------------------------
Secretary
Corporate Trustee's Authentication Certificate
This bond is one of the bonds, of the series herein designated,
described or provided for in the within-mentioned Mortgage.
THE BANK OF NEW YORK,
as Corporate Trustee,
By
--------------------------------------
Authorized Signatory
12
LEGEND
[Unless and until this bond is exchanged in whole or in part for
certificated bonds registered in the names of the various beneficial holders
hereof as then certified to the Trustee by the Depository Trust Company or its
successor (the "Depositary"), this bond may not be transferred except as a whole
by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.
Unless this certificate is presented by an authorized representative of the
Depositary to the Company or its agent for registration of transfer, exchange or
payment, and any certificate to be issued is registered in the name of Cede &
Co., or in such other name as is requested by an authorized representative of
the Depositary and any amount payable thereunder is made payable to Cede & Co.,
or such other name, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof,
Cede & Co., has an interest herein.
This bond may be exchanged for certificated bonds registered in the names
of the various beneficial owners hereof if (a) the Depositary is at any time
unwilling or unable to continue as depositary and a successor depositary is not
appointed by the Company within 90 days, or (b) the Company elects to issue
certificated bonds to beneficial owners (as certified to the Company by the
Depositary)].
[End of Bond Form]
(II) The Company has initially designated The Depository Trust Company as
the Depository (the "Depository") for the bonds of the Twenty-seventh series.
For as long as the bonds of the Twenty-seventh series are registered in the name
of the Depository or its nominee, all payments of interest, principal and other
amounts in respect of such bonds may be made to the Depository or its nominee in
accordance with the Depository's applicable procedures. Notwithstanding any
provision hereof or in the Indenture, none of the Company, or the Trustees, nor
any agent of any such person, shall have any responsibility with respect to the
Depository's procedures or for any payments, transfers or other transactions, or
any notices or other communications, among the Depository, any of its direct or
indirect participants and any beneficial owners of such bonds. Each of the
Company, the Trustees and any agent for any such person may treat the registered
holder as the sole and exclusive owner of the bonds of the Twenty-seventh series
for all purposes under the Indenture, including for making payments on such
bonds and for providing notices and obtaining consents under the Indenture.
(III) Upon the occurrence of a Change of Control, the Company will be
required to offer to redeem the bonds of the Twenty-seventh series, in whole or
in part, on the next business day after such Change of Control at a redemption
price equal to 101% of the principal amount of the bonds of the Twenty-seventh
Series being redeemed plus accrued and unpaid interest thereon, if any, to the
13
redemption date. The holders of the bonds of the Twenty-seventh Series will be
permitted twenty business days after the offer in which to accept the offer by
written notice to the Company. The Company will tender the redemption price to
the accepting holders in exchange for their bonds of the Twenty-seventh Series
within twenty business days after receipt of timely written notice of acceptance
from those holders. A "Change of Control" shall be deemed to have occurred if at
any time that any of the bonds of the Twenty-seventh Series are outstanding the
following events shall occur:
(1) Any "person" (as defined in Section 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), excluding for this
purpose the Company or any subsidiary of the Company or any Intermediate
Holding Company, or any employee benefit plan of the Company or any
subsidiary of the Company, or any person or entity organized, appointed or
established by the Company for or pursuant to the terms of such plan which
acquires beneficial ownership of voting securities of the Company, is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act) directly or indirectly of securities of the Company representing fifty
percent (50%) or more of the combined voting power (not depending on the
happening of a contingency) for the election of a majority of the members
of the board of directors or any other governing body of the Company;
provided, however, that no Change in Control shall be deemed to have
occurred as the result of an acquisition of securities of the Company by
the Company which, by reducing the number of voting securities outstanding,
increases the direct or indirect beneficial ownership interest of any
person to fifty percent (50%) or more of the combined voting power of the
Company's then outstanding securities, but any subsequent increase in the
direct or indirect beneficial ownership interest of such a person in the
Company shall be deemed a Change in Control; and provided further that if
the Board of Directors of the Company determines in good faith that a
person who has become the beneficial owner directly or indirectly of
securities of the Company representing fifty percent (50%) or more of the
combined voting power of the Company's then outstanding securities has
inadvertently reached that level of ownership interest, and if such person
divests within 45 days after notice to the Company a sufficient amount of
securities of the Company so that the person no longer has a direct or
indirect beneficial ownership interest in fifty percent (50%) or more of
the combined voting power of the Company's then outstanding securities,
then no Change in Control shall be deemed to have occurred; or
(2) Consummation of (a) an agreement for the sale or disposition of the Company
or all or substantially all of the Company's assets, (b) a plan of merger
or consolidation of the Company with any other company, or (c) a similar
transaction or series of transactions involving the Company (any
transaction described in parts (a) through (c) of this subparagraph being
referred to as a "Business Combination"), in each case unless after such a
Business Combination the shareholders of the Company immediately prior to
the Business Combination continue to own, directly or indirectly, more than
fifty (50%) of the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors of the
new (or continued) entity.
14
"Intermediate Holding Company" means any entity organized or established by
or with the consent of the Company which acquires, directly or indirectly,
voting securities of the Company in exchange for voting securities of such
entity.
(IV) So long as the bonds of the Twenty-seventh Series remain outstanding,
the Company will not merge its regulated electric utility business with its auto
auction business in the same legal entity.
(V) At the option of the registered owner, any bonds of the Twenty-seventh
Series, upon surrender thereof for cancellation at the office or agency of the
Company in the Borough of Manhattan, The City of New York, together with a
written instrument of transfer wherever required by the Company duly executed by
the registered owner or by his duly authorized attorney, shall (subject to the
provisions of Section 12 of the Mortgage) be exchangeable for a like aggregate
principal amount of bonds of the same series of other authorized denominations.
Bonds of the Twenty-seventh Series shall be transferable (subject to the
provisions of Section 12 of the Mortgage) at the office or agency of the Company
in the Borough of Manhattan, The City of New York.
Upon any exchange or transfer of bonds of the Twenty-seventh Series, the
Company may make a charge therefor sufficient to reimburse it for any tax or
taxes or other governmental charge, as provided in Section 12 of the Mortgage,
but the Company hereby waives any right to make a charge in addition thereto for
any exchange or transfer of bonds of the Twenty-seventh Series.
Upon the delivery of this Twenty-first Supplemental Indenture and upon
compliance with the applicable provisions of the Mortgage, there shall be an
initial issue of bonds of the Twenty-seventh Series for the aggregate principal
amount of $250,000,000.
ARTICLE II
DIVIDEND COVENANT
SECTION 2. The Company covenants and agrees that the provisions of
subdivision (III) of Section 39 of the Mortgage, which are to remain in effect
so long as any of the bonds of the First Series shall remain Outstanding, shall
remain in full force and effect so long as any bonds of the First through
Twenty-seventh Series shall remain Outstanding.
ARTICLE III
AMENDMENT TO THE MORTGAGE - MEETINGS AND CONSENTS OF BONDHOLDERS
SECTION 3. Pursuant to the reservation of right in Section 3 of the Fifth
Supplemental Indenture dated as of April 1, 1971 and there being no Outstanding
bonds of any series created prior to the Sixth Series, the Company hereby amends
15
the Mortgage, as supplemented, by substituting for Article XIX (relating to
Meetings and Consents of Bondholders) a new Article XIX to read as set forth in
Section 3 of such Fifth Supplemental Indenture.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4. Subject to the amendments provided for in this Twenty-first
Supplemental Indenture, the terms defined in the Mortgage, as heretofore
supplemented, shall, for all purposes of this Twenty-first Supplemental
Indenture, have the meanings specified in the Mortgage, as heretofore
supplemented.
SECTION 5. The holders of bonds of the Twenty-seventh Series consent that
the Company may, but shall not be obligated to, fix a record date for the
purpose of determining the holders of bonds of the Twenty-seventh Series
entitled to consent to any amendment, supplement or waiver. If a record date is
fixed, those persons who were holders at such record date (or their duly
designated proxies), and only those persons, shall be entitled to consent to
such amendment, supplement or waiver or to revoke any consent previously given,
whether or not such persons continue to be holders after such record date. No
such consent shall be valid or effective for more than 90 days after such record
date.
SECTION 6. The Trustees hereby accept the trusts herein declared, provided,
created or supplemented and agree to perform the same upon the terms and
conditions herein and in the Mortgage 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 Twenty-first 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 Twenty-first 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 Twenty-first Supplemental Indenture.
SECTION 7. Whenever in this Twenty-first Supplemental Indenture any party
hereto is named or referred to, this shall, subject to the provisions of
Articles XVI and XVII of the Mortgage, as heretofore supplemented, be deemed to
include the successors or assigns of such party, and all the covenants and
agreements in this Twenty-first Supplemental Indenture contained by or on behalf
of the Company, or by or on behalf of the Trustees shall, subject as aforesaid,
bind and inure to the benefit of the respective successors and assigns of such
party whether so expressed or not.
SECTION 8. Nothing in this Twenty-first Supplemental Indenture, expressed
or implied, is intended, or shall be construed, to confer upon, or give to, any
person, firm or corporation, other than the parties hereto and the holders of
the bonds and coupons Outstanding under the Mortgage, any right, remedy, or
claim under or by reason of this Twenty-first Supplemental Indenture or any
16
covenant, condition, stipulation, promise or agreement hereof, and all the
covenants, conditions, stipulations, promises and agreements in this
Twenty-first Supplemental Indenture contained by and 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 9. This Twenty-first Supplemental Indenture shall be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
SECTION 10. The Company, the mortgagor named herein, by its execution
hereof acknowledges receipt of a full, true and complete copy of this
Twenty-first Supplemental Indenture.
17
IN WITNESS WHEREOF, Minnesota Power, Inc. (doing business as ALLETE) 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 in its behalf, and The Bank of New York has caused its
corporate name to be hereunto affixed, and this instrument to be signed and
sealed by one of its Vice Presidents or one of its Assistant Vice Presidents and
its corporate seal to be attested by one of its Assistant Treasurers or one of
its Assistant Vice Presidents, and Xxxxxxx X. XxxXxxxx has hereunto set his hand
and affixed his seal, all in The City of New York, as of the day and year first
above written.
MINNESOTA POWER, INC. (DOING BUSINESS
AS ALLETE)
By /s/ X. X. Xxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxx
Senior Vice President - Finance
and Chief Financial Officer
Attest:
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxxxx
Vice President, General Counsel
and Corporate Secretary
Executed, sealed and delivered by ALLETE (Legally incorporated as
MINNESOTA POWER, INC.)
in the presence of:
/s/ Xxxx Xxx Xxxxxx
--------------------------------------
/s/ Xxx X. Xxxxxxxx
--------------------------------------
18
THE BANK OF NEW YORK,
as Corporate Trustee
By /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxxxx
Vice President
Attest:
/s/ Xxxxxxx Xxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxx
Assistant Vice President
/s/ Xxxxxxx X. XxxXxxxx
--------------------------------------
XXXXXXX X. XXXXXXXX
Executed, sealed and delivered by THE BANK OF NEW
YORK and XXXXXXX X. XXXXXXXX in the presence of:
/s/ Xxxxxxx Xxxxx
--------------------------------------
/s/ Xxx X. Xx
--------------------------------------
19
STATE OF MINNESOTA )
) SS.:
COUNTY OF ST. LOUIS )
On this 19th day of October, 2000, before me, a Notary Public within and
for said County, personally appeared XXXXX X. XXXXXXX and XXXXXX X. XXXXXXXXX,
to me personally known, who, being each by me duly sworn, did say that they are
respectively the Senior Vice President - Finance and Chief Financial Officer and
the Vice President, General Counsel and Corporate Secretary of MINNESOTA POWER,
INC. (DOING BUSINESS AS ALLETE) of the State of Minnesota, the corporation named
in the foregoing instrument; that the seal affixed to the foregoing instrument
is the corporate seal of said corporation; that said instrument was signed and
sealed in behalf of said corporation by authority of its Board of Directors; and
said XXXXX X. XXXXXXX and XXXXXX X. XXXXXXXXX acknowledged said instrument to be
the free act and deed of said corporation.
Personally came before me on this 19th day of October 2000, XXXXX X.
XXXXXXX, to me known to be the Senior Vice President - Finance and Chief
Financial Officer, and XXXXXX X. XXXXXXXXX, to me known to be the Vice
President, General Counsel and Corporate Secretary, of the above named MINNESOTA
POWER, INC. (DOING BUSINESS AS ALLETE), 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 Senior Vice President - Finance and Chief
Financial Officer and the Vice President, General Counsel and Corporate
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 stockholders, and said XXXXX X. XXXXXXX and XXXXXX X.
XXXXXXXXX then and there acknowledged said instrument to be the free act and
deed of said corporation and that such corporation executed the same.
On the 19th day of October, 2000, before me personally came XXXXX X.
XXXXXXX and XXXXXX X. XXXXXXXXX, to me known, who, being by me duly sworn, did
depose and say that they respectively reside at 0000 Xxxx 0xx Xxxxxx, Xxxxxx,
Xxxxxxxxx, and 0000 Xxxx Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxx; that they are
respectively the Senior Vice President - Finance and Chief Financial Officer and
the Vice President, General Counsel and Corporate Secretary of MINNESOTA POWER,
INC. (DOING BUSINESS AS ALLETE), one of the corporations described in and which
executed the above instrument; that they know the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation, and that they
signed their names thereto by like order.
GIVEN under my hand and notarial seal this 19th day of October, 2000.
[Seal of the XXX X. XXXXXXXX /s/ Xxx X. Xxxxxxxx
State of NOTARY PUBLIC-MINNESOTA ------------------------------
Minnesota] My Commission Expires Jan. 31, 2005
20
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this 19th day of October, 2000, before me, a Notary Public within and
for said County, personally appeared XXXXXXX X. XXXXXXXXX and XXXXXXX XXXXXXX,
to me personally known, who, being each by me duly sworn, did say that they are
respectively a Vice President and an Assistant Vice President of THE BANK OF NEW
YORK of the State of New York, the corporation named in the foregoing
instrument; that the seal affixed to the foregoing instrument is the corporate
seal of said corporation; that said instrument was signed and sealed in behalf
of said corporation by authority of its Board of Directors; and said XXXXXXX X.
XXXXXXXXX and XXXXXXX XXXXXXX acknowledged said instrument to be the free act
and deed of said corporation.
Personally came before me on this 19th day of October, 2000, XXXXXXX X.
XXXXXXXXX, to me known to be a Vice President, and XXXXXXX XXXXXXX, known to me
to be an Assistant Vice President, of the above named THE BANK OF NEW YORK, 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 an Assistant Vice President 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 XXXXXXX X.
XXXXXXXXX and XXXXXXX XXXXXXX then and there acknowledged said instrument to be
the free act and deed of said corporation and that such corporation executed the
same.
On the 19th day of October, 2000, before me personally came XXXXXXX X.
XXXXXXXXX and XXXXXXX XXXXXXX, to me known, who, being by me duly sworn, did
depose and say that they respectively reside at 00 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxx Xxxx, and 0 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx; that they are
respectively a Vice President and an Assistant President of THE BANK OF NEW
YORK, one of the corporations described in and which executed the above
instrument; that they know the seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so affixed by order of
the Board of Directors of said corporation, and that they signed their names
thereto by like order.
GIVEN under my hand and notarial seal this 19th day of October, 2000.
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx
Notary Public, State of New York
XXXXXXX X. XXXXXXX
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Commission Expires May 16, 2002
21
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this 18th day of October, 2000, before me personally appeared XXXXXXX X.
XXXXXXXX, to me known to be the person described in and who executed the
foregoing instrument, and acknowledged that he executed the same as his free act
and deed.
Personally came before me this 18th day of October, 2000, the above named
XXXXXXX X. XXXXXXXX, to me known to be the person who executed the foregoing
instrument, and acknowledged the same.
On the 18th day of October, 2000, before me personally came XXXXXXX X.
XXXXXXXX, to me known to be the person described in and who executed the
foregoing instrument, and acknowledged that he executed the same.
GIVEN under my hand and notarial seal this 18th day of October, 2000.
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx
Notary Public, State of New York
XXXXXXX X. XXXXXXX
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Commission Expires May 16, 2002
22
