Exhibit 4
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ALLETE, INC.
(FORMERLY MINNESOTA POWER & LIGHT COMPANY
AND FORMERLY MINNESOTA POWER, INC.)
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 ALLETE, INC.'S
MORTGAGE AND DEED OF TRUST DATED
AS OF SEPTEMBER 1, 1945
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TWENTY-SECOND SUPPLEMENTAL INDENTURE
PROVIDING AMONG OTHER THINGS FOR
FIRST MORTGAGE BONDS, COLLATERAL SERIES A
(TWENTY-EIGHTH SERIES)
DATED AS OF JULY 1, 2003
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TWENTY-SECOND SUPPLEMENTAL INDENTURE
THIS INDENTURE, dated as of July 1, 2003, by and between ALLETE, INC.
(formerly Minnesota Power & Light Company and formerly Minnesota Power, Inc.), 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 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-second
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, on May 12, 1998, the Company filed Amended and Restated
Articles of Incorporation with the Secretary of State of the State of Minnesota
changing its name from Minnesota Power & Light Company to Minnesota Power, Inc.
effective May 27, 1998; 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, on May 8, 2001, the Company filed Amended and Restated
Articles of Incorporation with the Secretary of State of the State of Minnesota
changing its name from Minnesota Power, Inc. to ALLETE, Inc.; 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
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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
Twenty-First Supplemental Indenture................... October 1, 2000
which supplemental indentures were filed and recorded in various official
records in the State of Minnesota; and
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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
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 $ 50,000,000
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 None
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
Floating Rate First Mortgage Bonds due
October 20, 2003 250,000,000 250,000,000
which bonds are also hereinafter sometimes called bonds of the First through
Twenty-seventh 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,
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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
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-second Supplemental Indenture, and the terms of the bonds of the
Twenty-eighth Series, hereinafter referred to, have been duly authorized by the
Board of Directors of the Company by appropriate resolutions of said Board of
Directors; and
WHEREAS, the Company is entering into a Credit Agreement, dated as of
July 18, 2003 (the "Credit Agreement") among the Company, Xxxxx Fargo Bank,
N.A., as agent (the "Agent"), and the other lenders party thereto (collectively,
the "Lenders") pursuant to which the Company can borrow up to an aggregate of
$250,000,000; and
WHEREAS, in order to secure the Company's Obligations under and as
defined in the Credit Agreement, the Company desires to provide for the issuance
under the Mortgage to the Agent, for the benefit of itself and the other
Lenders, of a new series of bonds;
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,
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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-second 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 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
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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-second
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,
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-second 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-second Supplemental
Indenture being supplemental thereto.
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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-EIGHTH SERIES OF BONDS
SECTION 1. (I) There shall be a series of bonds designated "Collateral
Series A" (herein sometimes referred to as the "Twenty-eighth Series"), each of
which shall bear the descriptive title "First Mortgage Bond", 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-eighth Series shall be dated as in
Section 10 of the Mortgage provided, mature on July 16, 2004 or upon earlier
acceleration or redemption, be limited in aggregate principal amount (except as
provided in Section 16 of the Mortgage) to $255,000,000, 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 by the execution and delivery thereof) and shall
not bear interest; the principal of 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.
(II) Subject to the provisions of the Security Agreement, the bonds of
the Twenty-eighth Series shall be issued and delivered from time to time to time
to, and registered in the name of, the Agent under the Credit Agreement in order
to secure the Obligations of the Company under and as defined in the Credit
Agreement.
(III) Bonds of the Twenty-eighth 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:
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PURSUANT TO A SECURITY AGREEMENT (THE "SECURITY AGREEMENT")
DATED AS OF JULY 18, 2003 BETWEEN THE COMPANY (AS DEFINED BELOW) AND THE AGENT
(AS DEFINED BELOW), THIS BOND AND ALL PROCEEDS THEREOF HAVE BEEN PLEDGED TO
SECURE CERTAIN OBLIGATIONS OF THE COMPANY. THE SECURITY AGREEMENT SETS FORTH
VARIOUS PROVISIONS REGARDING (AMONG OTHER THINGS) THE PAYMENT OF THIS BOND AND
VOTING AND TRANSFER RIGHTS WITH RESPECT TO THIS BOND. THE SECURITY AGREEMENT
IMPOSES LIMITATIONS ON THE AMOUNTS PAYABLE UNDER THIS BOND. THE SECURITY
AGREEMENT PROVIDES THAT THE OBLIGATIONS OF THE COMPANY TO MAKE ANY PAYMENTS ON
THIS BOND ARE LIMITED TO THE AGGREGATE OBLIGATIONS OF THE COMPANY UNDER AND AS
DEFINED IN THE CREDIT AGREEMENT (AS DEFINED BELOW), WHICH COULD RESULT IN NO
AMOUNTS BEING PAYABLE UNDER THIS BOND REGARDLESS OF THE FACE AMOUNT OF THIS BOND
SET FORTH BELOW. THE COMPANY AND (BY THEIR ACCEPTANCE HEREOF) EACH HOLDER OF
THIS BOND AGREE THAT THE RIGHTS OF THE PARTIES WITH RESPECT TO THIS BOND SHALL
IN ALL RESPECTS BE SUBJECT TO SUCH LIMITATIONS AND OTHER PROVISIONS OF THE
SECURITY AGREEMENT. A COPY OF THE SECURITY AGREEMENT AND THE CREDIT AGREEMENT
ARE ON FILE WITH XXXXX FARGO BANK, NATIONAL ASSOCIATION, MAC: X0000-000, XXXXX
XXX XXXXXXXXX, XXXXXXXXXXX, XX 00000 ATTENTION: XXXX XXXXXXXXXX AND WILL BE
PROVIDED UPON WRITTEN REQUEST.
THIS BOND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES OR "BLUE SKY" LAWS OF ANY JURISDICTION AND
MAY BE TRANSFERRED ONLY IN COMPLIANCE WITH SUCH REGISTRATION REQUIREMENTS OR
UNDER AN EXEMPTION THEREFROM.
[TEMPORARY] REGISTERED BOND
ALLETE, INC.
First Mortgage Bond,
Collateral Series A
No. [T]R - __
ALLETE, INC., a corporation of the State of Minnesota
(hereinafter called the "Company"), for value received, hereby promises to pay
to , as agent (the "Agent"), on behalf of itself
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and the Lenders (as defined below), or registered assigns, at the office or
agency of the Company in the Borough of Manhattan, The City of New York,
Dollars ($ )
---------------------------- ---------------------
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, on July 16, 2004 (the
"Maturity Date") or upon earlier declaration of acceleration or redemption.
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 First
Mortgage Bonds, Collateral Series A,
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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-second Supplemental Indenture dated as of July 1, 2003, called the
"Mortgage"), dated as of September 1, 1945, executed by the Company (formerly
Minnesota Power & Light Company and formerly Minnesota Power, Inc.) 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 shall not bear interest.
This bond is issued to the Agent by the Company pursuant to
the Company's obligations under the Credit Agreement dated as of July 18, 2003
(as amended, supplemented, restated, extended or otherwise modified from time to
time, the "Credit Agreement"), among the Company, the Agent and the other
lenders party thereto from time to time (collectively, the "Lenders"), including
any amendments or extensions thereto that may be subsequent to the date hereof.
This bond shall be held by the Agent subject to the terms of the Credit
Agreement and the Security Agreement dated as of July 18, 2003 between the
Company and Xxxxx Fargo Bank, National Association, as agent (the "Security
Agreement").
It shall be an additional term and condition of the bonds of
this series that, in the event (i) an Event of Default under and as defined in
the Credit Agreement has occurred under Section 7.1(a) of the Credit Agreement
by reason of a failure by the Company to make a payment of principal or interest
when the same shall be due and payable pursuant to the Credit Agreement or (ii)
the Notes (as defined in the Credit Agreement) are declared due and payable
pursuant to Section 7.2 of the Credit Agreement, then the occurrence of either
such event shall be deemed, upon receipt of written notice from the Agent to the
Corporate Trustee of the occurrence thereof, to be a Default for purposes of
Section 65 of Article XIII of the Mortgage, and the definition of Default in the
Mortgage is modified accordingly for purposes of the bonds of this series.
In the event (i) an Event of Default under and as defined in
the Credit Agreement has occurred under Section 7.1(a) of the Credit Agreement
by reason of a failure by the Company to make a payment of principal or interest
when the same shall be due and payable pursuant to the Credit Agreement or (ii)
the Notes (as defined in the Credit Agreement) are declared due and payable
pursuant to Section 7.2 of the Credit Agreement and, in the case of either (i)
or (ii), the Agent shall give written notice to the Company and the Corporate
Trustee of such event, then on such date the Company shall redeem the bonds of
this series in whole at a redemption price equal to the principal amount
thereof. The provisions in the immediately preceding sentence are subject in all
instances to the limitations on the amounts collectible on the bonds of this
series provided for in Section 5(d) of the Security Agreement. The Company
hereby waives its right to have any notice of redemption pursuant to the
foregoing sentence state that such notice is subject to the receipt of the
redemption moneys by the Corporate Trustee before the date fixed for redemption.
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The Corporate Trustee may conclusively presume that the
obligation of the Company to pay the principal of the bonds of this series as
the same shall become due and payable, whether at maturity, redemption,
acceleration or otherwise, shall have been fully satisfied and discharged unless
and until it shall have received a written notice from the Agent under the
Credit Agreement, signed by its President or a Vice President, stating that the
payment of principal of the bonds of this series has not been fully paid when
due and specifying the amount of funds required to make such payment.
This bond has been issued by the Company to the Agent to (i)
provide for the payment of the Company's obligations to make payments to any
person under the Credit Agreement and (ii) provide to such persons the benefits
of the security provided for this bond pursuant to the Mortgage. The obligations
of the Company under the bonds of this series may be discharged prior to the
Maturity Date under the circumstances set forth in the Security Agreement.
Bonds of this series are not subject to a sinking fund. Bonds
of this series are not redeemable at the option of the Company.
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. The rights of the holder of this bond to vote or consent
under the Mortgage in respect of this bond shall be limited to the extent and in
the manner specified in the Security Agreement. 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.
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 subject to restrictions on transferability as set
forth in the Security Agreement. This bond is transferable as prescribed in the
Mortgage by the registered owner
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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.
No recourse shall be had for the payment of the principal of
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.
IN WITNESS WHEREOF, ALLETE, 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:
ALLETE, Inc.
By
-----------------------------------
ATTEST:
--------------------------------
11
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
[End of Bond Form]
(V) At the option of the registered owner, any bonds of the
Twenty-eighth 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-eighth Series shall not be transferable except to a
successor Agent under the Credit Agreement or as provided in the Security
Agreement, any such transfer to be made (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-eighth 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-eighth Series.
Upon the delivery of this Twenty-second Supplemental Indenture and upon
compliance with the applicable provisions of the Mortgage, there shall be an
initial issue of bonds of the Twenty-eighth Series for the aggregate principal
amount of $255,000,000.
12
(VI) Prior to an event of Foreclosure (as defined in the Security
Agreement) and transfer of bonds of the Twenty-eighth Series to a person other
than the Agent or to a successor agent appointed in accordance with the Credit
Agreement, the Company shall have no obligation as of any date to make any
payment of the principal of the bonds of the Twenty-eighth Series, whether at
maturity, upon acceleration, redemption or otherwise, in an amount in excess of
the aggregate Obligations under and as defined in the Credit Agreement then
outstanding.
In the event of a Foreclosure and transfer of bonds of the
Twenty-eighth Series to a person other than the Agent or to a successor agent
appointed in accordance with the Credit Agreement, the Agent shall promptly
provide written notice to the Corporate Trustee of such event of Foreclosure and
the aggregate amount of Obligations under and as defined in the Credit Agreement
outstanding immediately prior to such Foreclosure. With respect to bonds of the
Twenty-eighth Series sold or otherwise disposed of by reason of Foreclosure, the
Company shall have no obligation as of any date to pay any amount thereunder in
excess of the aggregate amount of Obligations under and as defined in the Credit
Agreement outstanding immediately prior to such Foreclosure.
For purposes of Section 29 of the Mortgage, any payments of principal
constituting Obligations under and as defined in the Credit Agreement will be
deemed to be a retirement of an equal principal amount of the bonds of the
Twenty-eighth Series.
ARTICLE II
MISCELLANEOUS PROVISIONS
SECTION 2. Section 126 of the Mortgage, as heretofore amended, is
hereby further amended by adding the words "and July 16, 2004" after the words
"November 15, 2007."
SECTION 3. Subject to the amendments provided for in this Twenty-second
Supplemental Indenture, the terms defined in the Mortgage, as heretofore
supplemented, shall, for all purposes of this Twenty-second Supplemental
Indenture, have the meanings specified in the Mortgage, as heretofore
supplemented.
SECTION 4. 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-second 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-second 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-second Supplemental Indenture.
13
SECTION 5. Whenever in this Twenty-second 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-second 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 6. Nothing in this Twenty-second 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-second Supplemental Indenture
or any covenant, condition, stipulation, promise or agreement hereof, and all
the covenants, conditions, stipulations, promises and agreements in this
Twenty-second 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 7. This Twenty-second 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 8. The Company, the mortgagor named herein, by its execution
hereof acknowledges receipt of a full, true and complete copy of this
Twenty-second Supplemental Indenture.
14
IN WITNESS WHEREOF, ALLETE, Inc. 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, one of its Vice Presidents 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.
ALLETE, INC.
By /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxx
Vice President, Chief Financial
Officer and Treasurer
Attest:
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxxx
Vice President, General Counsel
and Secretary
Executed, sealed and delivered by ALLETE, Inc.
in the presence of:
/s/ Xxxx X. Xxxxxx
-----------------------------------
/s/ Xxxx Xxx Xxxxxx
-----------------------------------
THE BANK OF NEW YORK,
as Corporate Trustee
By /s/ Xxxx X. Xxxxxxxxx
------------------------------------
Xxxx X. Xxxxxxxxx
Vice President
Attest:
/s/ Xxxx XxXxxxxx
-----------------------------------
Xxxx XxXxxxxx
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/ Xxxx X. Xxxxxxx
-----------------------------------
/s/ Xxx X. Xx
-----------------------------------
STATE OF MINNESOTA )
) SS.:
COUNTY OF ST. LOUIS )
On this 15th day of July, 2003, 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 Vice President, Chief Financial Officer and Treasurer and the
Vice President, General Counsel and Secretary of ALLETE, INC. 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 15th day of July 2003, XXXXX X.
XXXXXXX, to me known to be the Vice President, Chief Financial Officer and
Treasurer, and XXXXXX X. XXXXXXXXX, to me known to be the Vice President,
General Counsel and Secretary, of the above named ALLETE, INC., 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 Vice President,
Chief Financial Officer and Treasurer and the Vice President, General Counsel
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 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 15th day of July, 2003, 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 Xxxxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxx, and 0000 Xxxx Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxx; that they are
respectively the Vice President, Chief Financial Officer and Treasurer and the
Vice President, General Counsel and Secretary of ALLETE, INC., 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 15th day of July, 2003.
/s/ Xxxx X. Xxxx
-----------------------------------
[MINNESOTA
STATE SEAL] XXXX X. XXXX
NOTARY PUBLIC - MINNESOTA
My Commission Expires Jan. 31, 0000
XXXXX XX XXX XXXX )
) SS:
COUNTY OF NEW YORK )
On this 11th day of July, 2003, before me, a Notary Public within and
for said County, personally appeared XXXX X. XXXXXXXXX and XXXX XXXXXXXX, to me
personally known, who, being each by me duly sworn, did say that they are each a
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 XXXX X. XXXXXXXXX and XXXX XXXXXXXX acknowledged said
instrument to be the free act and deed of said corporation.
Personally came before me on this 11th day of July, 2003, XXXX X.
XXXXXXXXX, to me known to be a Vice President, and XXXX XxXXXXXX, known to me to
be a 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 each a 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 XXXX X. XXXXXXXXX and XXXX XXXXXXXX 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 11th day of July, 2003, before me personally came XXXX X.
XXXXXXXXX and XXXX XXXXXXXX, to me known, who, being by me duly sworn, did
depose and say that they respectively reside at 00 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxx
Xxxxxx 00000, and 00-00 000 Xxxxxx, Xxx. 0X, Xxxxxxx, Xxx Xxxx 00000; that they
are each a Vice 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 11th day of July, 2003.
/s/ 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 18, 0000
XXXXX XX XXX XXXX )
) SS:
COUNTY OF NEW YORK )
On this 11th day of July, 2003, 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 11th day of July, 2003, the above named
XXXXXXX X. XXXXXXXX, to me known to be the person who executed the foregoing
instrument, and acknowledged the same.
On the 11th day of July, 2003, 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 11th day of July, 2003.
/s/ 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 18, 2006
This instrument was drafted by Xxxxxx X. Xxxxxxxxx, Esq., ALLETE, Inc., 00 Xxxx
Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxx 00000.
