EXHIBIT 4(a)
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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
DOUGLAS J. MACINNES
(successor to Richard H. West, J. A. Austin,
E. J. McCabe, D. W. May, J. A. Vaughan and W. T. Cunningham)
As Trustees under ALLETE, Inc.'s Mortgage
and Deed of Trust dated as of September 1, 1945
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Twenty-third Supplemental Indenture
Providing among other things for
First Mortgage Bonds, Pollution Control Series F
(Twenty-ninth Series)
Dated as of August 1, 2004
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TWENTY-THIRD SUPPLEMENTAL INDENTURE
THIS INDENTURE, dated as of August 1, 2004, 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 30 West
Superior Street, Duluth, Minnesota 55802 (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 101 Barclay
Street, New York, New York 10286 (hereinafter sometimes called the "Corporate
Trustee"), and DOUGLAS J. MACINNES (successor to Richard H. West, J. A. Austin,
E. J. McCabe, D. W. May, J. A. Vaughan and W. T. Cunningham), whose post office
address is 1784 W. McGalliard Avenue, Hamilton, New Jersey 08610 (said Douglas
J. MacInnes 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 Richard H.
West, 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-third
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 J. A. Austin succeeded Richard H. West 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 E. J. McCabe in turn succeeded J. A. Austin 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 E. J.
McCabe as Co-Trustee under the Mortgage; and
WHEREAS, an instrument, dated as of June 25, 1984, was executed and
delivered under which J. A. Vaughan 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 W. T. Cunningham in turn succeeded J. A. Vaughan 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 Douglas J. MacInnes in turn succeeded W. T. Cunningham 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
Twenty-Second Supplemental Indenture................. July 1, 2003
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
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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 None
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 None
Collateral Series A.................................. 255,000,000 None
which bonds are also hereinafter sometimes called bonds of the First through
Twenty-eighth 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
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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
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;
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-third
Supplemental Indenture, and the terms of the bonds of the Twenty-ninth 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 DOUGLAS J. MACINNES, 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,
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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-third 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 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.
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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-third
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-third 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-third 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.
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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-NINTH SERIES OF BONDS
SECTION 1. (I) There shall be a series of bonds designated "Pollution
Control Series F" (herein sometimes referred to as the "Twenty-ninth 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-ninth Series shall be
dated as in Section 10 of the Mortgage provided, mature on the maturity date of
the Cohasset Bonds (as defined herein) or upon earlier acceleration or
redemption, issued as fully registered bonds in denominations of Five Thousand
Dollars and, at the option of the Company, in any multiple or multiples of Five
Thousand Dollars (the exercise of such option to be evidenced by the execution
and delivery thereof) and shall bear interest from August 19, 2004, at the rate
borne by the Cohasset Bonds, payable when interest on the Cohasset Bonds is
payable, the principal 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.
(II) The bonds of the Twenty-ninth Series shall be authenticated and
delivered from time to time, upon the request of the Company to the Corporate
Trustee, to, and registered in the name of, the trustee under the Indenture of
Trust, dated as of August 1, 2004 (herein called the "Cohasset Indenture") of
the City of Cohasset, Minnesota (the "City"), in order to evidence the
obligation of the Company to repay amounts borrowed in connection with the sale
of the bonds from time to time issued under the Cohasset Indenture (herein
called the "Cohasset Bonds") pursuant to the Loan Agreement, dated as of August
19, 2004, between the City and the Company (hereinafter called the "Loan
Agreement"), together with interest thereon. Such request of the Company shall
specify the terms and principal amount of the bonds of the Twenty-ninth Series
to be authenticated and delivered pursuant to such request and be accompanied by
such certificates, opinions and other documents required under the Mortgage.
The Company shall receive a credit against its obligation to make any
payment of the principal of or interest on the bonds of this series, whether at
maturity, upon redemption or otherwise, in an amount equal to, and such
obligation shall be fully or partially, as the case may be, satisfied and
discharged to the extent of, the amount, if any, credited pursuant to the
Cohasset Indenture against the payment required to be made by or for the account
of the City in respect of the corresponding payment of the principal of or
interest on the Cohasset Bonds.
The Corporate Trustee may conclusively presume that the obligation of the
Company to pay the principal of and interest on the bonds of the Twenty-ninth
Series as the same shall become due and payable shall have been fully satisfied
and discharged unless and until it shall have received a written notice from the
trustee under the Cohasset Indenture, signed by its
7
President, a Vice President or a Trust Officer, stating that the corresponding
payment of principal of or interest on the Cohasset Bonds has become due and
payable and has not been fully paid and specifying the amount of funds required
to make such payment.
(III) If an Event of Default described in Section 701(a) or (b) of the
Cohasset Indenture shall have occurred, in determining whether or not any
payment of the principal of or interest on the bonds of the Twenty-ninth Series
shall have been made in full, moneys received by the trustee under the Cohasset
Indenture from the Company shall, to the extent of the amount remaining to be
paid by the Company pursuant to subsection (e) of Section 3.02 of the Loan
Agreement be deemed to have been paid under said subsection (e) and not to have
been paid on the bonds of the Twenty-ninth Series.
The Corporate Trustee may conclusively presume that no Event of Default
described in Section 701(a) or (b) of the Cohasset Indenture shall have occurred
unless and until it shall have received a written notice from the trustee under
the Cohasset Indenture, signed by its President, a Vice President or a Trust
Officer stating that such an event has occurred.
(IV) From time to time, pursuant to Section 5.04 of the Loan Agreement, the
Company may amend the terms of the bonds of the Twenty-ninth Series in order to
evidence the amended obligation of the Company under the Loan Agreement. Upon
receipt of a Company request specifying the amended terms of the bonds of the
Twenty-ninth Series and requesting the authentication and delivery of amended
certificates for such bonds, together with a written notice signed by an officer
of the trustee under the Cohasset Indenture confirming that such amended terms
comply with the requirements of Section 5.04 of the Loan Agreement, the Trustee
shall authenticate and deliver such amended certificates to the trustee under
the Cohasset Indenture. Upon such delivery of the amended certificates, the
certificates for the corresponding bonds of the Twenty-ninth Series previously
held by the trustee under the Cohasset Indenture shall be deemed superceded by
the amended certificates and shall thereafter be deemed obsolete, null and void.
The obsolete certificates need not be delivered to the Trustee prior to the
delivery of the amended certificates, but shall be cancelled or destroyed if and
when surrendered by the trustee under the Cohasset Indenture.
(V) On the date that any of the Cohasset Bonds or the Additional Cohasset
Bonds are required to be redeemed pursuant to Section 301(c) of the Cohasset
Indenture, an equal principal amount of bonds of the Twenty-ninth Series shall
be redeemed at such principal amount plus accrued interest to such redemption
date.
The Corporate Trustee may conclusively presume that no event shall have
occurred which would require the Company to redeem bonds of the Twenty-ninth
Series pursuant to this Section (V) unless and until it shall have received a
written notice from the trustee under the Cohasset Indenture, signed by its
President, a Vice President or a Trust Officer, stating that such an event shall
have occurred, specifying the date thereof and describing such event in
reasonable detail.
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(VI) At the option of the registered owner, any bonds of the Twenty-ninth
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-ninth Series shall not be transferable except to any
successor trustee under the Cohasset Indenture, 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.
The Company hereby waives any right to make a charge for any exchange or
transfer of bonds of the Twenty-ninth Series.
Upon the delivery of this Twenty-third Supplemental Indenture and upon
compliance with the applicable provisions of the Mortgage, there shall be an
initial issue of bonds of the Twenty-ninth Series for the aggregate principal
amount of $111,000,000.
ARTICLE II
MISCELLANEOUS PROVISIONS
SECTION 2. Section 126 of the Mortgage, as heretofore amended, is hereby
further amended by adding the words "and July 1, 2022" after the words "July 16,
2004."
SECTION 3. Subject to the amendments provided for in this Twenty-third
Supplemental Indenture, the terms defined in the Mortgage, as heretofore
supplemented, shall, for all purposes of this Twenty-third 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-third 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-third 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-third Supplemental Indenture.
SECTION 5. Whenever in this Twenty-third Supplemental Indenture any party
hereto is named or referred to, this shall, subject to the provisions of
Articles XVI and XVII of the
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Mortgage, as heretofore supplemented, be deemed to include the successors or
assigns of such party, and all the covenants and agreements in this Twenty-third
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-third 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-third Supplemental Indenture or any
covenant, condition, stipulation, promise or agreement hereof, and all the
covenants, conditions, stipulations, promises and agreements in this
Twenty-third 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-third 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-third
Supplemental Indenture.
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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 Douglas J. MacInnes 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/ James K. Vizanko
--------------------------------------
James K. Vizanko
Senior Vice President and Chief
Financial Officer
Attest:
/s/ Deborah A. Amberg
- ---------------------
Deborah A. Amberg
Vice President, General Counsel
and Secretary
Executed, sealed and delivered by ALLETE, Inc.
in the presence of:
/s/ Dawn LaPointe
- -------------------
/s/ Marsha Jones
- -------------------
THE BANK OF NEW YORK,
as Corporate Trustee
By /s/ M. Ryan
-------------------------------------
Ming Ryan
Vice President
Attest:
By /s/ J. Salovitch-Miller
--------------------------------------
Julie Salovitch-Miller
Vice President
Executed, sealed and delivered by THE BANK OF NEW
YORK and DOUGLAS J. MACINNES in the presence of:
/s/ Kisha Holder
- -------------------
Kisha Holder
/s/ S. Poindexter
- -------------------
Stacey Poindexter
/s/ Douglas J. MacInnes
----------------------------------------
DOUGLAS J. MACINNES
STATE OF MINNESOTA )
) SS.:
COUNTY OF ST. LOUIS )
On this 11th day of August, 2004, before me, a Notary Public within and for
said County, personally appeared JAMES K. VIZANKO and DEBORAH A. AMBERG, to me
personally known, who, being each by me duly sworn, did say that they are
respectively the Senior Vice President and Chief Financial Officer 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 JAMES K. VIZANKO and DEBORAH A.
AMBERG acknowledged said instrument to be the free act and deed of said
corporation.
Personally came before me on this 11th day of August, 2004, JAMES K.
VIZANKO, to me known to be the Senior Vice President and Chief Financial
Officer, and DEBORAH A. AMBERG, 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 Senior Vice President and Chief
Financial Officer 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 JAMES K. VIZANKO and DEBORAH A. AMBERG 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 August, 2004, before me personally came JAMES K. VIZANKO
and DEBORAH A. AMBERG, to me known, who, being by me duly sworn, did depose and
say that they respectively reside at 1340 Mississippi Avenue, Duluth, Minnesota,
and 1923 West Kent Road, Duluth, Minnesota; that they are respectively the Vice
President and Chief Financial Officer 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 11th day of August, 2004.
/s/ Jodi M. Nash
----------------
[NOTARY SEAL] JODI M. NASH
NOTARY PUBLIC - MINNESOTA
My Commission Expires Jan. 31, 2005
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this 17th day of August, 2004, before me, a Notary Public within and for
said County, personally appeared Ming Ryan and Julie Salovitch-Miller, 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 Ming Ryan and Julie Salovitch-Miller acknowledged said
instrument to be the free act and deed of said corporation.
Personally came before me on this 17th day of August, 2004, Ming Ryan, to
me known to be a Vice President, and Julie Salovitch-Miller, 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 Ming Ryan and Julie Salovitch-Miller 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 17th day of August, 2004, before me personally came Ming Ryan and
Julie Salovitch-Miller, to me known, who, being by me duly sworn, did depose and
say that they respectively reside at 33 Hudson Street, Jersey City, NJ 07302,
and 19 Thoreau Drive, Manalapan, NJ 07726; 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 17th day of August, 2004.
/s/ Robert Hirsch
-----------------------
Robert Hirsch
Notary Public State of New York
No. 01H16076679
Qualified in Rockland County
Commission Expires July 1, 2006
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this 17th day of August, 2004, before me personally appeared DOUGLAS J.
MACINNES, 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 17th day of August, 2004, the above named
DOUGLAS J. MACINNES, to me known to be the person who executed the foregoing
instrument, and acknowledged the same.
On the 17th day of August, 2004, before me personally came DOUGLAS J.
MACINNES, 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 17th day of August, 2004.
/s/ Robert Hirsch
-------------------------------
Robert Hirsch
Notary Public State of New York
No. 01H16076679
Qualified in Rockland County
Commission Expires July 1, 2006
This instrument was drafted by ALLETE, Inc., 30 West Superior Street, Duluth,
Minnesota 55802.