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Exhibit 4(c)3
ALLETE
2007 Form 10-K
SUPERIOR
WATER, LIGHT AND POWER COMPANY
2915
Hill Avenue, Superior, WI 54880
To
U.S.
BANK NATIONAL ASSOCIATION
(formerly
First Bank (N.A.))
As
Trustee Under Superior Water, Light
and
Power Company's Mortgage and Deed of Trust,
Dated
as of March 1, 1943
_________________________________________
NINTH
SUPPLEMENTAL INDENTURE
_________________________________________
Dated
as of October 1, 2007
________________________________________________________________________
This
instrument drafted by
Bell,
Gierhart & Moore, S.C.
Madison,
WI
TABLE OF CONTENTS
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Section
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Heading
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Parties
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1
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Recitals
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1
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ARTICLE
I
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BONDS
OF THE EIGHTH SERIES
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7
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Section
1.1
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7
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ARTICLE
II
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MISCELLANEOUS
PROVISIONS
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10
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Section
2.1
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10
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Section
2.2
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10
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Section
2.3
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10
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Section
2.4
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10
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Section
2.5
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10
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Section
2.6
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10
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Signature
Page
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11
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ATTACHMENTS
TO SUPPLEMENTAL INDENTURE:
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EXHIBIT
A - Form of Bond of the Eighth Series
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NINTH SUPPLEMENTAL INDENTURE
INDENTURE,
dated as of the 1 st day
of October, 2007, made and entered into by and between
SUPERIOR WATER, LIGHT AND POWER COMPANY, a corporation of the
State of Wisconsin, whose address is 2915 Hill Avenue,
Superior, Wisconsin 54880 (the " Company ") and
U.S. BANK NATIONAL ASSOCIATION (successor to Chemical Bank, as
Corporate Trustee, and Peter Morse, as Co-Trustee), a national
banking association, whose principal trust office at the date
hereof is in St. Paul, Minnesota (the " Trustee "), as
Trustee under the Mortgage and Deed of Trust dated as of March
1, 1943 (hereinafter called the " Mortgage "),
which Mortgage was executed and delivered by the Company to
secure the payment of bonds issued or to be issued under and
in accordance with the provisions of the Mortgage, reference
to which Mortgage is hereby made, this Ninth Supplemental
Indenture (the " Ninth Supplemental
Indenture ") being supplemental thereto;
WHEREAS,
said Mortgage was recorded in the office of the Register of
Deeds in and for Douglas County, Wisconsin, on May 3, 1943, in
Volume 191 of Mortgages at page 1, Document No. 362844;
and
WHEREAS,
an instrument dated as of September 15, 1949, was executed by
the Company appointing Russell H. Sherman as Co-Trustee in
succession to said Howard B. Smith, resigned, under said
Mortgage, and by Russell H. Sherman accepting the appointment
as Co-Trustee under said Mortgage in succession to the said
Howard B. Smith, which instrument was recorded in the office
of the Register of Deeds in and for Douglas County, Wisconsin,
on October 8, 1949, in Volume 196 of Mortgages at page 510,
Document No. 398649; and
WHEREAS,
by the Mortgage, the Company covenanted that it would execute
and deliver such supplemental indenture or
indentures and such further instruments and do such further
acts as might be necessary or proper to carry out more
effectively the purposes of the Mortgage and to make subject
to the lien of the Mortgage any property acquired after the
date of the execution of the Mortgage and intended to be
subject to the lien thereof; and
WHEREAS,
the Company executed and delivered its First Supplemental
Indenture, dated as of March 1, 1951 (hereinafter called its "
First
Supplemental Indenture "), which was recorded in the
office of the Register of Deeds in and for Douglas County,
Wisconsin, on March 30, 1951, in Volume 205 of Mortgages at
page 73, Document No. 405297; and
WHEREAS,
an instrument dated as of May 16, 1961, was executed by the
Company appointing Richard G. Pintard as Co-Trustee in
succession to said Russell H. Sherman, resigned, under said
Mortgage and by Richard G. Pintard accepting the appointment
as Co-Trustee under said Mortgage in succession to said
Russell H. Sherman, which instrument was recorded in the
office of the Register of Deeds in and for Douglas County,
Wisconsin, on May 31, 1961, in Volume 256 of Mortgages at page
423, Document No. 453857; and
WHEREAS,
the Company executed and delivered its Second Supplemental
Indenture, dated as of March 1, 1962 (hereinafter called its "
Second
Supplemental Indenture "), which was
recorded
in the office of the Register of Deeds in and for Douglas
County, Wisconsin, on March 26, 1962, in Volume 261 of
Mortgages at page 81, Document No. 457662; and
WHEREAS,
an instrument dated as of June 23, 1976, was executed by the
Company appointing Steven F. Lasher as Co-Trustee in
succession to said Richard G. Pintard, resigned, under said
Mortgage and by Steven F. Lasher accepting the appointment as
Co-Trustee under said Mortgage in succession to said Richard
G. Pintard, which instrument was recorded in the office of the
Register of Deeds in and for Douglas County, Wisconsin, on
July 16, 1976, in Volume 353 of Records at page 274, Document
No. 532495; and
WHEREAS,
the Company executed and delivered its Third Supplemental
Indenture, dated as of July 1, 1976 (hereinafter called its "
Third
Supplemental Indenture "), which was recorded in the
office of the Register of Deeds in and for Douglas County,
Wisconsin, on October 1, 1976, in Volume 355 of Records at
page 683, Document No. 534332; and
WHEREAS,
an instrument dated as of December 30, 1977, was executed by
the Company appointing C. G. Martens as Co-Trustee in
succession, to said Steven F. Lasher, resigned, under said
Mortgage and by C. G. Martens accepting the appointment as
Co-Trustee under said Mortgage in succession to said Steven F.
Lasher, which instrument was recorded in the office of the
Register of Deeds in and for Douglas County, Wisconsin, on
February 13, 1985, in Volume 436 of Records at page 264,
Document No. 589308; and
WHEREAS,
the Company executed and delivered its Fourth Supplemental
Indenture, dated as of March 1, 1985 (hereinafter called its "
Fourth
Supplemental Indenture "), which was recorded in the
office of the Register of Deeds in and for Douglas County,
Wisconsin, on March 19, 1985, in Volume 436 of Records at page
910, Document No. 589776; and
WHEREAS,
an instrument dated as of October 26, 1992, was executed by
the Company appointing Peter Morse as Co-Trustee in succession
to said C. G. Martens, resigned, under said Mortgage and by
Peter Morse accepting the appointment as Co-Trustee under said
Mortgage in succession to said C. G. Martens, which instrument
was recorded in the office of the Register of Deeds in and for
Douglas County, Wisconsin, on November 13, 1992, in Volume 539
of Records at page 9, Document No. 649056; and
WHEREAS,
the Company executed and delivered its Fifth Supplemental
Indenture, dated as of December 1, 1992, (hereinafter called
its " Fifth
Supplemental Indenture "), which was recorded in the
office of the Register of Deeds in and for Douglas County,
Wisconsin, on December 28, 1992, in Volume 541 of Records at
page 229, Document No. 650104; and
WHEREAS,
the Company executed and delivered its Sixth Supplemental
Indenture, dated as of March 24, 1994 (hereinafter called its
" Sixth
Supplemental Indenture "), which was recorded in the
office of the Register of Deeds in and for Douglas County,
Wisconsin, on March 29, 1994, in Volume 568 of Records at page
757, Document No. 662228; and
WHEREAS,
the Company executed and delivered its Seventh Supplemental
Indenture, dated as of November 1, 1994 (hereinafter called
its " Seventh Supplemental
Indenture "), which
was
recorded in the office of the Register of Deeds in and for
Douglas County, Wisconsin, on January 18, 1995, in Volume 583
of Records at page 242, Document No. 669350; and
WHEREAS,
an instrument dated as of January 20, 1995, was executed by
The Prudential Insurance Company pursuant to Section 102 of
the Mortgage appointing First Bank (N.A.) as Trustee in
succession to Chemical Bank as Corporate Trustee and Peter
Morse as Co-Trustee under said Mortgage and by First Bank
(N.A.) (U.S. Bank National Association, successor) accepting
the appointment as Trustee under such Mortgage in succession
to said Chemical Bank and said Peter Morse, which instrument
was recorded in the Office of the Register of Deeds in and for
Douglas County, Wisconsin on April 6, 1995 in Volume 585 of
Records at page 953, Document No. 670717; and
WHEREAS,
the Company executed and delivered its Eighth Supplemental
Indenture, dated as of January 1, 1997 (hereinafter called its
" Eighth
Supplemental Indenture "), which was recorded in the
office of the Register of Deeds in and for Douglas County,
Wisconsin, on January 7, 1997, in Volume 617 of Records at
page 536, Document No. 685699; and
WHEREAS,
in addition to the property described in the Mortgage, as
heretofore supplemented, the Company has acquired certain
other property, rights and interests in property;
and
WHEREAS,
the Company has heretofore issued, in accordance with the
provisions of the Mortgage, bonds of a series entitled and
designated First Mortgage Bonds, 3 3/8% Series due 1973 (the "
Bonds of the
First Series "), in the aggregate principal amount of
Two Million Five Hundred Thousand Dollars ($2,500,000), none
of which Bonds of the First Series are now Outstanding; bonds
of a series entitled and designated First Mortgage Bonds, 3
1/10% Series due 1981 (the " Bonds of the Second
Series "), in the aggregate principal amount of Five
Million Dollars ($5,000,000), none of which Bonds of the
Second Series are now Outstanding; bonds of a series entitled
and designated First Mortgage Bonds, 5% Series due 1992 (the "
Bonds of the
Third Series "), in the aggregate principal amount of
Two Million Seven Hundred Thousand Dollars ($2,700,000), none
of which Bonds of the Third Series are now outstanding; bonds
of a series entitled and designated First Mortgage Bonds, 9
5/8% Series due 2001 (the " Bonds of the Fourth
Series "), the interest rate for which bonds was
modified to 6.10% by the Sixth Supplemental Indenture, in the
aggregate principal amount of Three Million Dollars
($3,000,000), none of which bonds of the Fourth Series are now
outstanding; bonds of a series entitled and designated First
Mortgage Bonds, 12 1/2% Series due 1992 (the " Bonds of the Fifth
Series "), in the aggregate principal amount of Three
Million Five Hundred Thousand Dollars ($3,500,000), none of
which Bonds of the Fifth Series are now outstanding; Bonds of
a series entitled and designated First Mortgage Bonds, 7.91%
Series due 2013 (the " Bonds of the Sixth
Series "), in the aggregate principal amount of Five
Million Dollars ($5,000,000) of which One Million Five Hundred
Thousand Dollars ($1,500,000) aggregate principal amount is
now outstanding; and Bonds of a series entitled and designated
First Mortgage Bonds, 7.27% Series due 2008 (the " Bonds of the Seventh
Series "), in the aggregate principal amount of Six
Million Dollars ($6,000,000) of which Six Million Dollars
($6,000,000) aggregate principal amount is now
outstanding.
WHEREAS,
Section 8 of the Mortgage provides that the form of each
series of bonds (other than Bonds of the First Series) issued
thereunder 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;
and
WHEREAS,
Section 120 of the Mortgage provides, among other things, that
the Company may enter into any further covenants, limitations
or restrictions for the benefit of any one or more series of
bonds issued thereunder, or the Company may establish the
terms and provisions of any series of bonds other than said
Bonds of the 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
be of record in all of the states in which any property at the
time subject to the lien of the Mortgage shall be situated;
and
WHEREAS,
the Company now desires to create a new series of bonds;
and
WHEREAS,
the execution and delivery by the Company of this Ninth
Supplemental Indenture, and the terms of the Bonds of the
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;
NOW,
THEREFORE, THIS INDENTURE WITNESSETH: That Superior Water,
Light and Power Company, in consideration of the premises and
of One Dollar ($1) to it duly paid by the Trustee 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 Trustee and
in order further to secure the payment both of the principal
of and interest and premium, if any, on the bonds from time to
time issued under the Mortgage, according to their tenor and
effect, and the performance of all the provisions of the
Mortgage (including any instruments supplemental thereto and
any modification made as in the Mortgage provided) and of said
bonds, hereby grants, bargains, sells, releases, conveys,
assigns, transfers, mortgages, pledges, sets over and confirms
(subject, however, to Excepted Encumbrances as defined in
Section 6 of the Mortgage) unto U.S. Bank National
Association, as Trustee under the Mortgage, and to its
successor or successors in said trust, and to said Trustee and
its successors and assigns forever, all and singular the
permits, franchises, rights, privileges, grants and property,
real, personal and mixed, now owned or which may be hereafter
acquired by the Company (except any of the character herein or
in the Mortgage expressly excepted), including (but not
limited to) its electric light and power works, gas works,
water works, buildings, structures, machinery, equipment,
mains, pipes, lines, poles, wires, easements, rights of way,
permits, franchises, rights, privileges, grants and all
property of every kind and description, situated in the City
of Superior, Douglas County, Wisconsin, or elsewhere in
Douglas County, Wisconsin, in Washburn County, Wisconsin, or
in any other place or places now owned by the Company, or that
may be hereafter acquired by it, including, but not limited
to, the following described properties of the Company--that is
to say:
All
Lands and Rights and Interests in Lands of the Company (except
any such property as may have been released from the lien of
the Mortgage), including, but not limited to, all such
property acquired by the Company under the following deeds
which are referred to for more particular descriptions
thereof, to wit:
Deed
dated September 25, 2002, from Van Vleck-Clemens Agency,
Inc., a Wisconsin corporation, to the Company, which deed was
recorded in the office of the Register of Deeds of the County
of Douglas, State of Wisconsin, on October 16, 2002, as
Document No. 748541.
Deed
dated September 29, 2006, from The City of Superior, a
Wisconsin municipal corporation, to the Company, which deed
was recorded in the office of the Register of Deeds of the
County of Douglas, State of Wisconsin, on October 3,
2006, as Document No. 800110, together with the vacated alley
and street described in City of Superior Common Council
Resolution No. R07-12731 adopted April 17, 2007,
recorded in the office of the Register of Deeds of the County
of Douglas, State of Wisconsin, on April 19, 2007, as
Document No. 805978.
Deed
dated December 14, 2006, from Daniel V. Owen, Personal
Representative of the estate of John E. Tiedemann a/k/a
Mr. John Tiedemann, a/k/a John Elmer Tiedemann, to the
Company, which deed was recorded in the office of the Register
of Deeds of the County of Douglas, State of Wisconsin, on
December 22, 2006, as Document No. 802717.
Deed
dated July 21, 2006, from the County of Douglas, in the
State of Wisconsin, to the Company, which deed was recorded in
the office of the Register of Deeds of the County of Douglas,
State of Wisconsin, on July 21, 2006, as Document No.
797902;
All
other property, real, personal and mixed, acquired by the
Company after the date of the execution and delivery of the
Mortgage (except any herein or in the Mortgage, as heretofore
supplemented, expressly excepted), now owned or hereafter
acquired by the Company and wheresoever situated, including
(without in any wise limiting or impairing by the enumeration
of the same the scope and intent of the foregoing or of any
general description contained in this Ninth Supplemental
Indenture) all lands, power sites, flowage rights, water
rights, water franchises, water locations, water
appropriations, ditches, flumes, reservoirs, reservoir sites,
canals, raceways, dams, dam sites, aqueducts, and all other
rights or means for appropriating, conveying, storing and
supplying water; all rights of way and roads; all plants,
works, reservoirs and tanks for the pumping and purification
of water; all water works; all plants for the generation of
electricity by water, steam and/or other power; all power
houses, gas plants, street lighting systems, standards and
other equipment incidental thereto, telephone, radio and
television
systems,
air-conditioning systems and equipment incidental thereto,
water systems, steam heat and hot water plants, substations,
lines, service and supply systems, bridges, culverts, tracks,
street and interurban railway systems, offices, buildings and
other structures and the equipment thereof; all machinery,
engines, boilers, dynamos, water, electric, gas and other
machines, regulators, meters, transformers, generators,
motors, water, electrical, gas and mechanical appliances,
conduits, cables, water, steam, heat, gas or other mains and
pipes, service pipes, fittings, valves and connections, pole
and transmission lines, wires, cables, tools, implements,
apparatus, furniture, chattels and choses in action; all
municipal and other franchises, consents or permits; all lines
for the transmission and distribution of water, electric
current, gas, steam heat or hot water for any purpose,
including 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 and
appurtenances belonging or in any wise appertaining to the
aforesaid property or any part thereof, with the reversion and
reversions, remainder and remainders and (subject to the
provisions of Section 57 of the Mortgage) the tolls, rents,
revenues, issues, earnings, income, product and profits
thereof, and all the estate, right, title and interest and
claim whatsoever, at law as well as in equity, which the
Company now has or may hereafter acquire in and to the
aforesaid property and franchises and every part and parcel
thereof.
It
is hereby agreed by the Company that all the property, rights
and franchises acquired by the Company after the date hereof
(except any herein or in the Mortgage, as heretofore
supplemented, expressly excepted) shall be and are as fully
granted and conveyed hereby and as fully embraced within the
lien of the Mortgage as if such property, rights and
franchises were now owned by the Company and were specifically
described herein and conveyed hereby.
Provided that the following are not and are not intended to
be now or hereafter granted, bargained, sold, released, conveyed,
assigned, transferred, mortgaged, pledged, set over or confirmed
hereunder and are hereby expressly excepted from the lien and
operation of the Mortgage, viz: (1) cash, shares of stock, bonds,
notes and other obligations and other securities not hereafter
specifically pledged, paid, deposited, delivered or
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